EU Equality Law: The First Fundamental Rights Policy of the EU (Oxford Studies in European Law) 2018949655, 9780198814665, 0198814666

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EU Equality Law: The First Fundamental Rights Policy of the EU (Oxford Studies in European Law)
 2018949655, 9780198814665, 0198814666

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OX F O R D S T U D I E S I N E U RO P E A N   L AW Series Editors PAU L   C R A I G Professor of English Law at St John’s College, Oxford

G R Á I N N E D E   B Ú RC A Professor of Law at New York University School of Law

EU Equality Law

EU Equality Law: The First Fundamental Rights Policy of the EU. Elise Muir © Elise Muir 2018. Published 2018 by Oxford University Press.

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OX F O R D S T U D I E S I N E U RO P E A N   L AW Series Editors: Paul Craig, Professor of English Law at St John’s College, Oxford and Gráinne de Búrca, Professor of Law at New York University School of Law The aim of this series is to publish important and original research on EU law. The focus is on scholarly monographs, with a particular emphasis on those which are interdisciplinary in nature. Edited collections of essays will also be included where they are appropriate. The series is wide in scope and aims to cover studies of particular areas of substantive and of institutional law, historical works, theoretical studies, and analyses of current debates, as well as questions of perennial interest such as the relationship between national and EU law and the novel forms of governance emerging in and beyond Europe. The fact that many of the works are interdisciplinary will make the series of interest to all those concerned with the governance and operation of the EU. ot h er t itles in this se ries Subnational Authorities in EU Law Michèle Finck Accessing Asylum in Europe Extraterritorial Border Controls and Refugee Rights under EU Law Violeta Moreno-​Lax National Parliaments after the Lisbon Treaty and the Euro Crisis Resilience or Resignation? Davor Jančić Environmental Integration in Competition and Free-​Movement Laws Julian Nowag EU Agencies Legal and Political Limits to the Transformation of the EU Administration Merijn Chamon Coherence in EU Competition law Wolf Sauter Foreign Policy Objectives in European Constitutional Law Joris Larik Economic Governance in Europe Comparative Paradoxes and Constitutional Challenges Federico Fabbrini Private Regulation and the Internal Market Sports, Legal Services, and Standard Setting in EU Economic Law Mislav Mataija The EU Deep Trade Agenda Law and Policy Billy A. Melo Araujo

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EU Equality Law The First Fundamental Rights Policy of the EU ELISE MUIR Associate Professor of EU Law, and head of the Institute for European Law, KU Leuven

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1 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 © Elise Muir 2018 The moral rights of the author have been asserted First Edition published in 2018 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 Published in the United States of America by Oxford University Press 198 Madison Avenue, New York, NY 10016, United States of America British Library Cataloguing in Publication Data Data available Library of Congress Control Number: 2018949655 ISBN 978–​0–​19–​881466–​5 Printed and bound 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.

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To Amélie, Hania, and Pawel

EU Equality Law: The First Fundamental Rights Policy of the EU. Elise Muir © Elise Muir 2018. Published 2018 by Oxford University Press.

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Series Editors’ Preface Almost two decades after the EU Charter of Fundamental Rights gained binding force, Elise Muir’s book revisits the question whether and to what extent the EU has an autonomous human rights policy. Muir does so through an analysis of EU Equality law, which she argues has become the EU’s first fundamental rights policy. Contrasting EU equality law and policy with other areas of EU policy such as data protection, which has strong fundamental rights implications, she argues that equality law and policy is different in that it is a human rights policy with its own independent legal basis, its own set of tools and instruments, and is intended to realize specific fundamental rights rather than being part of another EU policy. She notes the application of this area of law to both the public and the private sphere, which she labels the ‘infrastructural’ and ‘transformative’ dimensions. Muir cautions against the over-constitutionalization of EU equality law, in the sense of tying its development and shape too closely to the EU treaties rather than permitting the policy to be more flexibly developed and adapted. She argues that some of the cases in which the Court has interpreted the constitutional contours of EU equality law, in the shape of Treaty and Charter provisions and constitutional principles, have established powerful supranational interventions into controversial areas of domestic policy touching on important and nationally sensitive values, and that EU legislative rather than constitutional guidance in such fields may be more advisable. Later chapters of the book examine the legislative process in the making of EU equality law, and the use of other tools to shape and promote it. Chapter V contains an interesting analysis of governance and enforcement within EU equality law, including a comparison between the emerging fundamental rights fields of EU data protection and equality law, noting in particular the difference in the way the independent national enforcement authorities within these two fields are treated. Indeed, a recurrent theme of the book is the importance of stimulating and supporting legal innovation at the domestic level in the field of EU equality law, rather than too much prescriptive intervention ‘from above’. Overall, the book is an intelligent and welcome addition to the existing literature on EU equality law, updating and providing some fresh perspectives on this important and constantly growing field, and will appeal to all those who are interested in EU human rights, equality and non-discrimination law and policy. Paul Craig and Gráinne de Búrca

EU Equality Law: The First Fundamental Rights Policy of the EU. Elise Muir © Elise Muir 2018. Published 2018 by Oxford University Press.

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Acknowledgements This book is the outcome of a research project financed by the Veni programme of the Netherlands Organisation for Scientific Research (NWO) and hosted by the Faculty of Law of the University of Maastricht between 2013 and 2017. I am most grateful to both organizations for making it possible to write this monograph. I owe special thanks to a number of individuals who have had a direct impact on the content of the book. Mark Dawson gave me the appetite for a second monograph and patiently read early chapters. Bruno de Witte, Marco Dani, and two anonymous reviewers provided most valuable comments on aspects of the project with which I had particular difficulties. Sacha Garben, Gillian More, and Katrien Meuwissen have very kindly and equally helpfully shared their views on specific sections. I am also indebted to the members of the Maastricht Centre for European Law and to the members of the 2017 Edition of the Czech Mountain Seminar who have spent time and energy reflecting along with me on draft chapters. This manuscript would never have gone to press without the support of family and friends. To begin with my academic family: Monica Claes, Mark Dawson, Mariolina Eliantonio, Sacha Garben, Inge Govaere, Dominik Hanf, Claire Kilpatrick, Anne Pieter van der Mei, Síofra O’Leary, Cristophe Radé, Séverine Saintier, Hildegard Schneider, Takis Tridimas, Christian Valèze, Ellen Vos, Lisa Waddington, and Bruno de Witte have provided healthy, caring, and stimulating intellectual homes for the early stages of my academic life. I feel privileged to have received their support and words of advice. This is as well as, of course, the friends of yesterday and tomorrow, Magali, Estelle, Tristan, and Michaël, who are always available for a chat. My parents, with their indefectible trust. My brothers, so warmly different and thereby so complementary to me. My grandparents, Geneviève, Jean-​Luc, Hélène, Pierre and Marie-​ Pierre, and Annie, acting affectionate intellectual compasses. This book is dedicated to Amélie, Hania, and Pawel. Amélie and Hania were born during and grew up alongside this project; their presence strengthened my determination to write this book. As for Pawel, he is behind each and every page.

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Table of Cases Abrahamsson See Katarina Abrahamsson and Leif Anderson v Elisabet Fogelqvist Accession by the Community to the European Convention for the Protection of Human Rights and Fundamental Freedoms [1996] ECLI:EU:C:1996:140 . . . . . . . . . . . . . . . . . . . . . 63 Accession of the European Union to the European Convention for the Protection of Human Rights and Fundamental Freedoms [2014] ECLI:EU:C:2014:2454 . . . . . . . . . . . . . . . . . . . . 63 Achbita See Samira Achbita and Centrum voor Gelijkheid van Kansen en voor Racismebestrijding v G4S Secure Solutions NV Åklagaren v Hans Åkerberg Fransson [2013] ECLI:EU:C:2013:105. . . . . . . . . . . . . . . . . . . 4, 51, 66 Albert Ruckdeschel & Co and Hansa Lagerhaus Ströh & Co v Hauptzollamt Hamburg-​St Annen; Diamalt AG v Hauptzollamt Itzehoe [1977] ECLI:EU:C:1977:160. . . . . . . . . . . . 4, 62 Alimanovic See Jobcenter Berlin Neukölln v Nazifa Alimanovic and others Alpine Investments BV v Minister van Financiën [1995] ECLI:EU:C:1995:126. . . . . . . . . . . . . . . 70 AMS See Association de médiation sociale v Union locale des syndicats CGT and others Ana de Diego Porras v Ministerio de Defensa [2016] ECLI:EU:C:2016:683. . . . . . . . . 127, 128, 131 Angonese See Roman Angonese v Cassa di Risparmio di Bolzano SpA António Fernando Maio Marques da Rosa v Varzim Sol—​Turismo, Jogo e Animação, SA [2017] ECLI:EU:C:2017:844 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 114 Antonio Muñoz y Cia SA and Superior Fruiticola SA v Frumar Ltd and Redbridge Produce Marketing Ltd [2002] ECLI:EU:C:2002:497. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 139 Asma Bougnaoui and Association de Défense des Droits de l’Homme (ADDH) v Micropole SA [2017] ECLI:EU:C:2017:204. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51 Asociaţia Accept v Consiliul Naţional pentru Combatere a Discriminării [2013] ECLI:EU:C:2013:275. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 154 Association Belge des Consommateurs Test-​Achats ASBL and others v Conseil des ministres [2011] ECLI:EU:C:2011:100 . . . . . . . . . . . . . . . . . . . . . . . . 2, 32, 35, 87, 96–​8, 105, 106, 140 Association de médiation sociale v Union locale des syndicats CGT and others [2014] ECLI:EU:C:2014:2. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11, 83, 113–​16, 118, 130, 141 Athanasios Vatsouras and Josif Koupatantze v Arbeitsgemeinschaft (ARGE) Nürnberg 900 [2009] ECLI:EU:C:2009:344 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 134 Audiolux SA e.a v Groupe Bruxelles Lambert SA (GBL) and others and Bertelsmann AG and others (Case C-​101/​08) [2009] ECLI:EU:C:2009:626. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 112 Auditeur du travail v Yangwei SPRL [2011] ECLI:EU:C:2011:826. . . . . . . . . . . . . . . . . . . . 127, 128 Autorità per le Garanzienelle Comunicazioni v Istituto Nazionale di Statistica—​ISTAT and others [2016] ECLI:EU:C:2016:608 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 195 Barber See Douglas Harvey Barber v Guardian Royal Exchange Assurance Group Baumbast and R v Secretary of State for the Home Department [2002] ECLI:EU:C:2002:493. . . . 69 BECTU (Case C-​173/​99) [2001] ECR I-​488. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 141 Belinda Jane Coote v Granada Hospitality Ltd [1998] ECLI:EU:C:1998:424. . . . . . . . . . . . 149, 152 Belov See Valeri Hariev Belov v CHEZ Elektro Balgaria AD and others Betriebsrat der Ruhrlandklinik GmbH v Ruhrlandklinik GmbH [2016] ECLI:EU:C:2016:883. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 126, 127 Bilka-​Kaufhaus GmbH v Karin Weber von Hartz [1986] ECLI:EU:C:1986:204. . . . . . . . . . . . . . . 89 BNO Walrave and LJN Koch v Association Union cycliste international, Koninklijke Nederlandsche Wielren Unie and Federación Espanola Ciclismo [1974] ECLI:EU:C:1974:140. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8, 80

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Bougnaoui See Asma Bougnaoui and Association de Défense des Droits de l’Homme (ADDH) v Micropole SA Brey See Pensionsversicherungsanstalt v Peter Brey Briheche See Serge Briheche v Ministre de l’Intérieur, Ministre de l’Education nationale and Ministre de la Justice Bruno See Istituto nazionale della previdenza sociale (INPS) v Tiziana Bruno and Massimo Pettini and Daniela Lotti and Clara Matteucci Camera di Commercio, Industria, Artigianato e Agricoltura di Lecce v Salvatore Manni ECLI:EU:C:2017:19. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 138 Carlos Álvarez Santirso v Consejería de Educación, Cultura y Deporte del Principado de Asturias [2016] ECLI:EU:C:2016:72. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 127, 128 Carmela Carratù v Poste Italiane SpA [2013] ECLI:EU:C:2013:830. . . . . . . . . . . . . . . 123, 128, 131 Centrum voor Gelijkheid van Kansen en voor Racismebestrijding v Firma Feryn NV [2008] ECLI:EU:C:2008:397. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 172, 175, 190 Charlotte Rosselle v Institut national d’assurance maladie-​invalidité (INAMI) and Union nationale des mutualités libres (UNM) [2015] ECLI:EU:C:2015:339. . . . . . . . . . . . . . 172, 175 CHEZ Razpredelenie Bulgaria AD v Komisia za zashtita ot diskriminatsia [2015] ECLI:EU:C:2015:480. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27, 74, 75, 128, 172, 173 Coleman (S) v Attridge Law and Steve Law [2008] ECLI:EU:C:2008:415 . . . . . . . . . . 128, 129, 157 Coloroll Pension Trustees Ltd v James Richard Russell, Daniel Mangham, Gerald Robert Parker, Robert Sharp, Joan Fuller, Judith Ann Broughton and Coloroll Group plc [1994] ECLI:EU:C:1994:348. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 129 Comisión del Mercado de las Telecomunicaciones v Administración del Estado [2008] ECLI:EU:C:2008:143. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 195 Commission of the European Communities v French Republic [1974] ECLI:EU:C:1974:35. . . . . 70 Commission v Federal Republic of Germany [2010] ECLI:EU:C:2010:125. . . . . . . . . . . 192–​4,  200 Commission v Hungary ECLI:EU:C:2014:237 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 194, 199 Commission v Republic of Austria [2012] ECLI:EU:C:2012:406. . . . . . . . . . . . . . . . . . . . . . . 192–​4 Concetta Sagulo, Gennaro Brenca and Addelmadjid Bakhouche [1977] ECLI:EU:C:1977:131 . . . . . 155 Dai Cugini NV v Rijksdienst voor Sociale Zekerheid [2011] ECLI:EU:C:2011:223. . . . . . . . 127, 128, 132 Danfoss A/​S and Sauer-​DanfossApS v Skatteministeriet [1989] ECLI:EU:C:1989:383. . . . . . . . . 149 Dano See Elisabeta Dano and Florin Dano v Jobcenter Leipzig Dansk Industri (DI), acting on behalf of Ajos A/​S v Estate of Karsten Eigil Rasmussen [2016] ECLI:EU:C:2016:278. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 35, 83, 85, 86, 116, 202 David L Parris v Trinity College Dublin and others [2016] ECLI:EU:C:2016:897. . . . . . . . . . . . . . 98 David Montoya Medina v Fondo de Garantía Salarial et Universidad de Alicante [2011] ECLI:EU:C:2011:167. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 126 Defrenne II See Gabrielle Defrenne v Société anonyme belge de navigation aérienne Sabena Del Cerro Alonso See Yolanda Del Cerro Alonso v Osakidetza-​Servicio Vasco de Salud Delège and Lehtonen (Cases C-​51/​96 &176/​96) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 159 Deutsche Post AG v Elisabeth Sievers and Brunhilde Schrage [2000] ECLI:EU:C:2000:76. . . . 10, 77 Deutsche Telekom AG v Lilli Schröder[2000] ECLI:EU:C:2000:72. . . . . . . . . . . . . . . . . . . 8, 10, 77 Dieter Kraus v Land Baden-​Württemberg [1993] ECLI:EU:C:1993:125 . . . . . . . . . . . . . . . . 70, 158 Digital Rights Ireland Ltd v Minister for Communications, Marine and Natural Resources and others and Kärtner Landesregierung and others [2014] ECLI:EU:C:2014:238. . . . . . . . . 75 Digital Rights Ireland Ltd v Minister for Communications, Marine and Natural Resources and others and Kärntner Landesregierung and others [2014] ECLI:EU:C:2014:238. . . . . . . . . . 139 Dominguez See Maribel Dominguez v Centre informatique du Centre Ouest Atlantique and Préfet de la région Centre Dorsch Consult Ingenieurgesellschaft mbH v Bundesbaugesellschaft Berlin mbH [1997] ECLI:EU:C:1997:413. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 188

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Douglas Harvey Barber v Guardian Royal Exchange Assurance Group [1990] ECLI:EU:C:1990:209. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 89–​91, 98, 105 Eckhard Kalanke v Freie Hansestadt Bremen [1995] ECLI:EU:C:1995:322. . . . . . . . . . . . . . . 91, 94 Elisabeta Dano and Florin Dano v Jobcenter Leipzig [2014] ECLI:EU:C:2014:2358. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 100, 101, 103 Elliniki Radiophonia Tiléorassi AE and Panellinia Omospondia Syllogon Prossopikou v Dimotiki Etairia Pliroforissis and Sotirios Kouvelas and Nicolaos Avdellas and others[1991] ECLI:EU:C:1991:254. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36, 61 Enderby (Dr Pamela Mary) v Frenchay Health Authority and Secretary of State for Health [1993] ECLI:EU:C:1993:859 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28, 70, 82, 149 Erich Stauder v City of Ulm—​Sozialamt [1969] ECLI:EU:C:1969:57. . . . . . . . . . . . . . . . . . . . . . 36 European Commission v Guido Strack [2013] ECLI:EU:C:2013:570. . . 85, 114, 117, 119, 120, 139 Fenoll See Gérard Fenoll v Centre d’aide par le travail ‘La Jouvene’ and Association de parents et d’amis de personnes handicapées mentales (APEI) d’Avignon Feryn See Centrum voor Gelijkheid van Kansen en voor Racismebestrijding v Firma Feryn NV Flaminio Costa v ENEL [1964] ECLI:EU:C:1964:66. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36 FMC plc, FMC (Meat) Ltd, DT Duggins Ltd, Marshall (Lamberhurst) Ltd, Montelupo Ltd and North Devon Meat Ltd v Intervention Board of Agricultural Produce and Ministry of Agriculture, Fisheries and Food [1996] ECLI:EU:C:1996:40 . . . . . . . . . . . . . . . . . . . . . . 153 Francisco Javier Rosado Santana v Consejería de Justicia y Administración Pública de la Junta de Andalucía [2011] ECLI:EU:C:2011:557. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 126–​8 Fransson See Åklagaren v Hans Åkerberg Fransson Frédéric Hay v Crédit Agricole Mutuel de Charente-​Maritime et des DeuxSèvres [2013] ECLI:EU:C:2013:823. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62, 173 Fries See Werner Fries v Lufthansa City Line GmbH Gabrielle Defrenne v Société anonyme belge de navigation aérienne Sabena [1976] ECLI:EU:C:1976:56 (Defrenne II) . . . . . . . . . . . 5, 7, 8, 70, 79, 80, 82–​4, 90, 106–​8, 137, 148 Gabrielle Defrenne v Société anonyme belge de navigation aérienne Sabena (Defrenne III) (Case 149/​77) [1978] ECLI:EU:C:1978:130; [1978] ECR 1365 . . . . . . . . . . . . . . . . 10, 62, 95 García-​Nieto See Vestische Arbeit Jobcenter Kreis Recklinghausen v Jovanna García-​Nieto and others Gaskin v United Kingdom (App no 10454/​83). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 194 Geoffrey Léger contre Ministre des Affaires sociales, de la Santé et des Droits des femmes et Etablissement français du sang [2015] ECLI:EU:C:2015:288. . . . . . . . . . . . . . . . . . . . . . 67, 85 Georg Badeck and others, interveners: Hessische Ministerpräsident and Landesanwalt beim Staatsgerichtshof des Landes Hesse [2000] ECLI:EU:C:2000:163. . . . . . . . . . . . . . . . . . . . . . 93 Gérard Fenoll v Centre d’aide par le travail ‘La Jouvene’ and Association de parents et d’amis de personnes handicapées mentales (APEI) d’Avignon [2015] ECLI:EU:C:2015:200. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 112, 114, 115, 117, 118, 130 Gerhard Köbler v Republik Österreich [2003] ECLI:EU:C:2003:513. . . . . . . . . . . . . . . . . . . . 155–​6 Giovanni Maria Sotgiu v Deutsche Bundespost [1974] ECLI:EU:C:1974:13. . . . . . . . . . . . . . 70, 82 Glatzel See Wolfgang Glatzel v Freistaat Bayern Graf (Case C-​190/​98) [2000] ECR I–​493. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 159 Grant See Lisa Jacqueline Grant v South-​West Trains Ltd Grupo Norte Facility, SA v Angel Manuel Moreira Gómez [2017] OJ C30/​21–​22 (pending). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 111, 120 H Lommers v Minister van Landbouw, Natuurbeheer en Visserij [2002] ECLI:EU:C:2002:183. . . . . . 91 Handels-​og Kontorfunktionærernes Danfoss Forbund I Danmark v Dansk Arbejdsgiverforening, acting on behalf of Danfoss [1989] ECLI:EU:C:1989:383 . . . . . . . . . . 28

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Handels-​og Kontorfunktionærernes Forbund I Danmark v Dansk Arbejdsgiverforening, acting on behalf of Danfoss [1989] ECLI:EU:C:1989:38 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 70 Hay See Frédéric Hay v Crédit agricole mutuel de Charente-​Maritime et des Deux-​Sèvres Helmut Marschall v Land Nordrhein-​Westfalen [1997] ECLI:EU:C:1997:533. . . . . . . . . . . . . . . . 92 HK Danmark, acting on behalf of Jette Ring v Dansk almennyttigt Boligselskab and HK Danmark, acting on behalf of Lone Skouboe Werge v Dansk Arbejdsgiverforening, acting on behalf of Pro Display A/​S [2013] ECLI:EU:C:2013:222 . . . . . . . . . . . . . . . . . . . . . . . . . . 65 HK Danmark, acting on behalf of Jette Ring v Dansk almennyttigt Boligselskab (C-​335/​11) and HK Danmark, acting on behalf of Lone Skouboe Werge v Dansk Arbejdsgiverforening, acting on behalf of Pro Display A/​S [2013] ECLI:EU:C:2013:222. . . . . 174 Impact v Minister for Agriculture and Food and others [2008] ECLI:EU:C:2008:223. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 123–​6, 130, 131 Internationale Handelsgesellschaft mbH v Einfuhr-​und Vorratsstelle für Getreide und Futtermittel [1970] ECLI:EU:C:1970:114. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36, 61 Istituto nazionale della previdenza sociale (INPS) v Tiziana Bruno and Massimo Pettini and Daniela Lotti and Clara Matteucci [2010] ECLI:EU:C:2010:329. . . . . . . . . 125, 126, 128, 132 J Nold, Kohlen-​und Baustoffgroßhandlung v Commission of the European Communities [1974] ECLI:EU:C:1974:51 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61–​3 Jean Razanatsimba [1977] ECLI:EU:C:1977:193. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 188 Jean Reyners v Belgian State [1974] ECLI:EU:C:1974:68. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 70 JN v Staatssecretaris voor Veiligheid en Justitie [2016] ECLI:EU:C:2016:84. . . . . . . . . . . . . . . . . . 62 Jobcenter Berlin Neukölln v Nazifa Alimanovic and others [2015] ECLI:EU:C:2015:597. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 101, 103, 105, 106 Johannes Henricus Maria van Binsbergen v Bestuur van de Bedrijfsvereniging voor de Metaalnijverheid [1974] ECLI:EU:C:1974:131. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 70 John O’Flynn v Adjudication Officer [1996] ECLI:EU:C:1996:206. . . . . . . . . . . . . . . . . . . . . 70, 82 Joseph Griesmar v Ministre de l’Economie, des Finances et de l’Industrie and Ministre de la Fonction publique, de la Réforme de L’Etat et de la Décentralisation [2001] ECLI:EU:C:2001:648. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 91 JP Jenkins v Kingsgate [1981] ECLI:EU:C:1981:80. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 81 Julia Schnorbus v Land Hessen [2000] ECLI:EU:C:2000:676 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 91 Jürgen Römer v Freie und Hansestadt Hamburg [2011] ECLI:EU:C:2010:4251 . . . . . . . . . . . 11, 62 Kaba (Case C-​356/​98) (2000) 2 EJML 431 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 159 Kalanke See Eckhard Kalanke v Freie Hansestadt Bremen Kamberaj See Servet Kamberaj v Istituto per l’Edilizia Sociale della Provincia autonoma di Bolzano (IPES) and others Katarina Abrahamsson and Leif Anderson v Elisabet Fogelqvist [2000] ECLI:EU:C:2000:367. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 94, 95 Katharina Rinke v Ärztekammer Hamburg [2003] ECLI:EU:C:2003:435. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 85, 86, 120, 139 Kerly Del Rosario Martinez Silva v Istituto nazionale della previdenza sociale (INPS) and Comune di Genova ECLI:EU:C:2017:485. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 136 KHS (Case C-​214/​10) [2011] ECR I-​11757. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 141 Kücükdeveci See Seda Kücükdeveci v Swedex GmbH & Co KG Land Oberösterreich v Čez [2009] ECLI:EU:C:2009:660. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 Laval un Partneri Ltd v Svenska Byggnadsarbetareförbundet, Svenska yggnadsarbetareförbund etsavdelning 1, Byggettan and Svenska Elektrikerförbundet [2007] ECLI:EU:C:2007:809. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8, 158 Leander v Sweden (App no 9248/​81) (1987) 9 EHRR 433. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 194

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Léger See Geoffrey Léger contre Ministre des Affaires sociales, de la Santé et des Droits des femmes et Etablissement français du sang Lisa Jacqueline Grant v South-​West Trains Ltd [1998] ECLI:EU:C:1998:63. . . . . . . 58, 98, 104, 203 Macarthys Ltd v Wendy Smith[1980] ECLI:EU:C:1980:103. . . . . . . . . . . . . . . . . . . . . . . . . . . . 129 Manfred Säger v Dennemeyer & Co Ltd [1991] ECLI:EU:C:1991:331 . . . . . . . . . . . . . . . . . . . . . 70 Mangold See Werner Mangold v Rüdiger Helm María Martínez Sala v Freistaat Bayern [1998] ECLI:EU:C:1998:217. . . . . . . . . . . . . . . . . . . 99, 100 Maribel Dominguez v Centre informatique du Centre Ouest Atlantique and Préfet de la région Centre [2011] ECLI:EU:C:2011:559. . . . . . . . . 13, 86, 112–​15, 117, 118, 130, 141 Maribel Dominguez v Centre informatique du Centre Ouest Atlantique and Préfet de la région Centre [2011] ECLI:EU:C:2011:559. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .45 Marschall See Helmut Marschall v Land Nordrhein-​Westfalen Martinez Silva See Kerly Del Rosario Martinez Silva v Istituto nazionale della previdenza sociale (INPS) and Comune di Genova Maximilian Schrems v Data Protection Commisioner [2015] ECLI:EU:C:C2015:650. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 190, 191, 194 Melloni See Stefano Melloni v Ministerio Fiscal MG v United Kingdom (App no 39393/​98). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 194 Michel Trojani v Centre public d’aide sociale de Bruxelles (CPAS)( Case-​456/​02) [2004] ECLI:EU:C:2004:488. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 101 Mohamed Daouidi v Bootes Plus SL, Fondo de Garantía Salarial, Ministerio Fiscal [2016] ECLI:EU:C:2016:917. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 133 Nazli (Case C-​340/​97) [2000] ECR I-​957 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 159 Nicole Wippel v Peek & Cloppenburg GmbH & Co KG [2004] ECLI:EU:C:2004:607. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 121, 132 NW Algemene Transport-​en Expeditie Orderneming van Gend en Loos v Netherlands Inland Revenue Administration [1963] ECLI:EU:C:1963:1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 Odièvre v France (App no 42326/​98) [2003] ECHR 86. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 194 Othmar Michaeler, Subito GmbH and Ruth Volgger v Amt für sozialen Arbeitsschutz and Autonome Provinz Bozen [2008] ECLI:EU:C:2008:248 . . . . . . . . . . . . . . . . . . . . . . . 122, 132 P and S v Commissie Sociale Zekerheid Breda and College van Burgemeester en Wethouders van de gemeente Amstelveen [2015] ECLI:EU:C:2015:369. . . . . . . . . . . . . . . . . . . . . . . . . 136 P. v S. and Cornwall County Council (Case C-​13/​94) [1996] ECR I-​2143 . . . . . . . . . . . . . . . . . . . 10 Pedro Manuel Roca-​Alvarez v Sesa Start Espana ETT SA [2010] ECLI:EU:C:2010:56. . . . . . . . . . 94 Pensionsversicherungsanstalt v Peter Brey [2013] ECLI:EU:C:2013:565. . . . . . . . . . . . . . . . 101, 103 Petya Milkova v Izpalnitelen direktor na Agentsiata za privatizatsia i sledprivatizatsionen control [2017] ECLI:EU:C:2017:198 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65, 67, 85 R (on the application of Dany Bidar) v London Borough of Ealing and Secretary of State for Education and Skills (Case C-​209/​03) [2005] ECLI:EU:C:2005:169. . . . . . . . . . . . . . . . . . 101 Razzouk and Beydoun v Commission (Joined Cases 75/​82 & 117/​82 [1984] ECR 1509. . . . . . . . . 10 Reinhard Gebhard v Consiglio dell’Ordine degli Avvocati e Procuratori di Milano [1995] ECLI:EU:C:1995:411. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 70 Rewe-​Zentralfnanze G and Rewe-​Zentral AG v Landwirtschaftskammer für das Saarland [1976] ECLI:EU:C:1976:188 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 149 Rinke See Katharina Rinke v Ärztekammer Hamburg Roca-​Alvarez See Pedro Manuel Roca-​Alvarez v Sesa Start Espana ETT SA Roman Angonese v Cassa di Risparmio di Bolzano SpA (Case C-​281/​90) [2000] ECLI:EU:C:2000:296. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8, 80, 159, 161

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Rosa María Gavieiro Gavieiro and Ana María Iglesias Torres v Consellería de Educación e Ordenación Universitaria de la Xunta de Galicia [2010] ECLI:EU:C:2010:819 . . . . . . 127, 131 Rosanna Valenzaand others v Autorità Garante della Concorrenza e del Mercato [2012] ECLI:EU:C:2012:646. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 128 Rosselle See Charlotte Rosselle v Institut national d’assurance maladie-​ invalidité (INAMI) and Union nationale des mutualités libres S Coleman v Attridge Law and Steve Law [2008] ECLI:EU:C:2008:415. . . . . . . . . . . . 128, 129, 157 Sabine von Colson and Elisabeth Kamann v Land Nordrhein-​Westfalen [1984] ECLI:EU:C:1984:153. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 153 Samira Achbita and Centrum voor Gelijkheid van Kansen en voor Racismebestrijding v G4S Secure Solutions NV [2016] ECLI:C:2016:382 [2017] ECLI:EU:C:2017:203. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51, 53, 60, 172, 175 Satamedia See Tietosuojavaltuutettu v Satakunnan Markkinapörssi Oy and Satamedia Oy Schrems See Maximilian Schrems v Data Protection Commisioner Schultz-​Hoff and Others (Joined Cases C-​350/​06 & C-​520/​06) [2009] ECR I-​179 . . . . . . . . . . . 141 Seda Kücükdeveci v Swedex GmbH & Co KG [2010] ECLI:EU:C:2010:21. . . . . . . . . . . . . . . 2, 11, 13, 32, 35, 75, 77, 83–​6, 106, 111–​13, 115–​19, 131–​3, 136, 138, 139, 202 Serge Briheche v Ministre de l’Intérieur, Ministre de l’Education nationale and Ministre de la Justice [2004] ECLI:EU:C:2004:574. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 94 Servet Kamberaj v Istituto per l’Edilizia Sociale della Provincia autonoma di Bolzano (IPES) and others [2012] ECLI:EU:C:2012:233. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 134–​6,  173 Sindicato dos Bancários do Norte and others v BPN—​Banco Português de Negócios SA [2013] ECLI:EU:C:2013:149 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66 Sindicato Nacional dos Profssionais de Seguros e Afnscontre Fidelidade Mundial—​ Companhia de Seguros SA [2014] ECLI:EU:C:2014:2036. . . . . . . . . . . . . . . . . . . . . . . . . . . 66 Stefano Melloni v Ministerio Fiscal [2013] ECLI:EU:C:2013:107 . . . . . . . . . . . . . . . . . . . . . . 50, 51 Strack See European Commission v Guido Strack Synetairismos Farmakopoion Aitolias & Akarnanias (Syfait) and others v GlaxoSmithKline plc and GlaxoSmithKline AEVE [2005] ECLI:EU:C:2005:333. . . . . . . . . . . . . . . . . . . . . . . . . 189 Tadao Maruko v Versorgungsanstalt der deutschen Bühnen [2008] ECLI:EU:C:2008:179. . . . . . . 62 Teresa Emmott v Minister for Social Welfare and Attorney General [1991] ECLI:EU:C:1991:333. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 157 Test-​Achats See Association Belge des Consommateurs Test-​ Achats ASBL and others v Conseil des ministres Tietosuojavaltuutettu v Satakunnan Markkinapörssi Oy and Satamedia Oy [2008] ECLI:EU:C:2008:727. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 112, 138 Union nationale des entraîneurs et cadres techniques professionnels du football (Unectef ) v Georges Heylens and others [1987] ECLI:EU:C:1987 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 155 Union royale belge des sociétés de football association ASBL v Jean-​Marc Bosman, Royal club liégeois SA v Jean-​Marc Bosman and others and Union des associations européennes de football (UEFA) v Jean-​Marc Bosman [1995] ECLI:EU:C:1995:463. . . . . . . . . . . . . . 8, 70, 80 United Kingdom of Great Britain and Northern Ireland v Council of the European Union [1996] ECLI:EU:C:1996:431 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48 Valeri Hariev Belov v CHEZ Elektro Balgaria AD and others [2013] ECLI:EU:C:2013:48. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 172, 175, 188–​90 Vera Egenberger v Evangelisches Werk für Diakonie und Entwicklung eV [2017] ECLI:EU:C:2017:851. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 Vestische Arbeit Jobcenter Kreis Recklinghausen v Jovanna García-​Nieto and others [2016] ECLI:EU:C:2016:114. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 101, 103, 105

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xxiii

Werner Fries v Lufthansa City Line GmbH [2017] ECLI:EU:C:2017:513 . . . . . . . . . . . . . . . . . . . 85 Werner Mangold v Rüdiger Helm [2005] ECLI:EU:C:2005:709. . . . . . . . . 2, 11, 13, 32, 35, 62, 77, 86, 106, 111, 113, 131, 138, 202 Wippel See Nicole Wippel v Peek & Cloppenburg GmbH & Co KG Wolfgang Glatzel v Freistaat Bayern [2014] ECLI:EU:C:2014:350. . . . . . . . . . . . . . . . . . . 65, 67, 85 Xabier Ormaetxea Garai and Bernardo Lorenzo Almendros v Administración del Estado [2016] ECLI:EU:C:2016:780 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 195 Yolanda Del Cerro Alonso v Osakidetza-​Servicio Vasco de Salud [2007] ECLI:EU:C:2007:509. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 122, 125–​7, 130, 131, 141 Z v A Government department and The Board of management of a community school [2014] ECLI:EU:C:2014:159. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65 Zentralbetriebsrat der Landeskrankenhäuser Tirols v Land Tirol [2010] ECLI:EU:C:2010:215. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 126–​8 Zoi Chatzi v Ypourgos Oikonomikon [2010] ECLI:EU:C:2010:534 . . . . . . . . . . . . . . . . . . . . . . . . 4

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International Treaties and Conventions Charter of Fundamental Rights of the European Union (CFEU)��������� 22, 42, 43 Art 8������������������������������������������������������� 139 Art 8(3) ��������������������������������� 186, 193, 198 Art 16������������������������������������������������������� 52 Art 20������������������������������������������� 62, 67, 76 Art 21�������������������������� 9, 11, 17, 28, 84, 120 Art 21(1) ���������� 62, 63, 67, 76, 83, 113, 115 Art 21(2) ������������������������������������� 63, 67, 76 Art 23��������������������������������11, 63, 67, 76, 93 Art 27��������������������������������������������� 113, 115 Art 31(2) ������������������������� 113, 114, 117–​20 Art 51������������������������������������������������������� 84 Art 51(2) ������������������������������������������������� 63 Art 52����������������������������������������������������� 139 Art 52(5) ��������������������������������������� 117, 119 Community Charter of the Fundamental Social Rights of Workers Art 7������������������������������������������������������� 130 Art 10(1) ����������������������������������������������� 130 European Economic Community Treaty (TEEC) Art 7(1) ��������������������������������������������������� 63 Art 45(2) ��������������������������������������������������� 5 Art 100��������������������������������������������������� 108 Arts 117–​120������������������������������������������� 10 Art 119������������������������������5, 7, 10, 107, 108 Art 119(1) (now Art 157(1) TFEU) ������� 107 Art 155��������������������������������������������������� 108 Art 235��������������������������������������������������� 108 European Social Charter����������������������������� 130 Treaty Establishing the European Community (TEC) Art 13������������������������������������������������������� 73 Art 100a��������������������������������������������������� 16 Arts 136–​143������������������������������������������� 10 Art 137(2) ��������������������������������������������� 118 Art 141(3) ����������������������������������������������� 72 Treaty on European Union (TEU) Recital (2)������������������������������������������������� 63 Art 1����������������������������������������������������������� 3 Art 2����������������������������������������������������� 3, 67 Art 3(3) ����������������������������������������������������� 3 Art 4(2) ����������������������������������������� 3, 52, 53 Art 5(3) ��������������������������������������������������� 48 Art 6��������������������������������������������������������� 67 Art 6(1) ��������������������������36, 62, 63, 67, 119

Art 6(2) ��������������������������������������������� 62, 67 Art 6(3) ��������������������������������������������� 36, 61 Art 7����������������������������������������������������� 1, 14 Art 17������������������������������������������������������� 41 Treaty on European Union (TEU Maastricht) Art F�������������������������������������������������������� 67 Treaty on the Functioning of the European Union (TFEU)��������������������� 58 Art 2(2) ��������������������������������������������� 27, 72 Arts  3–​6��������������������������������������������������� 47 Art 4(1) ��������������������������������������������������� 47 Art 8������������������������������������������������������� 3, 5 Art 10��������������������������������������������������������� 5 Art 16��������������������������������17, 23, 45, 137–​9 Art 16(1) ��������������������������������������� 137, 139 Art 16(2) ����������������137, 139, 187, 193, 198 Art 18�����5, 8, 59, 82, 87, 104, 106, 134, 203 Art 18(1) ����������������������63, 69, 99, 100, 104 Art 195, 6, 11, 12, 16, 17, 23, 28, 29, 40, 56, 62, 66, 73–​7, 83, 84, 87, 96, 118, 127, 129, 155, 178, 202, 203 Art 19(1) ���������������� 27, 60, 74, 99, 104, 106 Art 19(2) ����������������������������������������������� 180 Art 20����������������������������������������� 71, 88, 104 Art 20(2) ��������������������������������������� 100, 104 Art 21(1) ����������������������������69, 88, 100, 104 Art 21(2) ������������������������������������������������� 71 Art 45������������������������������������������� 8, 81, 157 Art 45(2) ������������������������������������������� 69, 70 Art 46����������������������������������������������������� 159 Art 48������������������������������������������������������� 72 Art 49(1) ������������������������������������������� 69, 70 Art 56(1) ������������������������������������������� 69, 70 Art 59������������������������������������������������������� 71 Art 67(2) ����������������������������������������������� 134 Art 78������������������������������������������������������� 16 Art 79(1) ����������������������������������������������� 134 Art 79(2)(a)–​(b)������������������������������������� 134 Art 114(2) ����������������������������������������������� 72 Art 115����������������������������������������������������� 72 Art 153����������������������������������������������� 12, 72 Art 153(1)(b)����������������������������������������� 124 Art 153(2)(b)����������������������������������������� 124 Art 154��������������������������������������������������� 124 Art 154(3) ��������������������������������������������� 155 Art 155��������������������������������������������������� 124 Art 155(2) ����������������������������������������� 12, 72

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Art 157���������������������������5, 8, 10–​12, 16, 62, 72, 81, 90, 155 Art 157(1) ������������� 7, 69, 70, 79–​81, 83, 84, 86, 87, 90, 98, 99, 107, 108, 126, 137 Art 157(2) ����������������������������������������������� 70 Art 157(3) ��������������������������72, 87, 104, 180 Art 157(4) ����������������������������������� 70, 93, 95

Art 168����������������������������������������������������� 22 Art 169����������������������������������������������������� 22 Art 267����������������������������������� 188, 190, 192 Art 294����������������������������������������������������� 71 Art 352����������������������������������������������������� 72 Treaty of Lisbon������������������������������ 14, 17, 23, 36, 63, 67, 68, 73, 138, 152, 155, 184

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EU Secondary Legislation Decisions Decision 2002/​584/​JHA [2002] OJ L190/​1������������������������������������������� 50 Decision 2008/​913/​JHA [2008] OJ L328/​55��������������������������������������������� 153 Decision 2008/​977/​JHA [2016] OJ L119/​89������������������������������� 17, 184, 185 Decision 252/​2013 [2013] OJ L79/​1 ��������� 179 Directives Directive 75/​117/​EEC [1975] OJ L45/​19 (Equal Pay Directive)������������������������40, 72, 149, 153 Art 2������������������������������������������������������� 148 Directive 76/​207/​EEC [1976] OJ L39/​40 (Equal Treatment (Employment) Directive)40, 94, 132, 148 Art 2(4) ��������������������������������������������� 91, 93 Art 6������������������������������������������������������� 148 Directive 79/​7/​EEC [1979] OJ L6/​24 (Equal Treatment (Social Security) Directive)��������������������������41, 72, 73, 146 Art 6������������������������������������������������������� 148 Directive 86/​378/​EEC [1986] OJ L225/​40 (Equal Treatment (Occupational Social Security Schemes) Directive������������������� 40, 72, 89 Art 10����������������������������������������������������� 148 Directive 86/​457, Art 5(1) ��������������������������� 86 Directive 86/​613/​EEC [1986] OJ L359/​56 (Equal Treatment (Self Employed) Directive)��������������������� 41, 72 Art 9������������������������������������������������������� 149 Directive 89/​552/​EEC [1989] OJ L298/​23 (Television Broadcasting Activities) ����������������������� 14 Directive 90/​364/​EEC [1990] OJ L180/​ 26 (Right of Residence) ��������������������� 100 Directive 90/​365/​EEC [1990] OJ L180/​28 (Right of Residence for Employees and Self-​employed)����������� 100 Directive 90/​366/​EEC [1990] OJ L180/​ 30 (Right of Residence for Students)������������������������������������������� 100 Directive 92/​85/​EEC [1992] OJ L348/​ 1, Art 12������������������������������������� 148, 149

Directive 93/​16/​EEC [1993] OJ L165/​ 13 (Free Movement of Doctors) ����������� 85 Art 34(1) ������������������������������������������������� 86 Directive 93/​104/​EC [1993] OJ 1993 L 30������������������������������������� 141 Directive 95/​46/​EC [1995] OJ L281/​3 (Data Protection Directive)������ 17, 137, 182, 184, 185, 195 Art 17(1) ����������������������������������������������� 139 Art 23����������������������������������������������������� 154 Art 25(6) ����������������������������������������������� 191 Art 28������������������������������183, 192, 193, 197 Art 28(1) ������������������������������� 180, 187, 193 Art 28(3) ����������������������������������������������� 191 Art 28(2)–​(4)����������������������������������������� 186 Art 47����������������������������������������������������� 191 Directive 96/​34/​EC [1996] OJ L145/​4 (Parental Leave) ��������������������������������� 149 Directive 96/​97/​EC [1997] OJ L46/​20 (Equal Treatment Directive)����������������� 90 Directive 97/​80/​EC [1998] OJ L14/​6 (Sex Discrimination Directive)����������������������28, 41, 70, 72, 82 Art 4������������������������������������������������� 71, 149 Directive 97/​81/​EC [1998] OJ L14/​ 9 (Part-​time Work Directive 1997(PTW)) ����������������������������� 121, 128 cl 4(1)������������������������������121, 122, 126, 132 cl 4(2)����������������������������������������������������� 121 cl 4(3)����������������������������������������������������� 121 Directive 1999/​70 EC [1999] OJ L175/​43 (Fixed-​Term Work Directive (FTW Directive))����������120, 125, 128, 131, 141 cl 3(2)����������������������������������������������������� 122 cl 4(1)������������������������������������� 126, 127, 130 cl 5��������������������������������������������������������� 122 Directive 2000/​43/​EC [2000] OJ L180/​22 (Racial Equality Directive)�������������������������������� 15, 27, 41, 54, 73, 134, 146, 181 Recital (13)��������������������������������������������� 134 Recital (24)������������������������������������� 181, 197 Art 1������������������������������������������������������� 197 Art 3(1) ��������������������������������������������������� 29 Art 3(2) ������������������������������������������������� 134

EU Equality Law: The First Fundamental Rights Policy of the EU. Elise Muir © Elise Muir 2018. Published 2018 by Oxford University Press.

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Art 7��������������������������������������� 150, 151, 155 Art 7(1) ������������������������������������������������� 163 Art 7(2) ��������������������������������� 151, 152, 155 Art 8������������������������������������������������������� 152 Art 9������������������������������������������������������� 152 Art 13��������������������������������������������� 181, 197 Art 13(2) ����������������������������������������������� 163 Art 15����������������������������������������������������� 153 Art 17(2) ����������������������������������������������� 164 Directive 2000/​78/​EC [2000] OJ L303/​ 16 (Framework Employment Directive)��������������� 40, 41, 51, 53, 54, 73, 83, 85, 105, 112, 116, 129, 146, 198 Art 3(1) ��������������������������������������������������� 74 Art 6(1) ������������������������������������������������� 113 Art 9������������������������������������������������������� 150 Art 9(1) ������������������������������������������������� 163 Art 11����������������������������������������������������� 152 Art 13����������������������������������������������������� 164 Art 17����������������������������������������������������� 153 Art 19(2) ����������������������������������������������� 164 Directive 2002/​14/​EC [2002] OJ L80/​ 29 (Information and Consultation Directive (IC))��������������������������� 113, 118 Art 3(1) ������������������������������������������������� 113 Directive2002/​21/​EC [2002] OJ L108/​ 33 (Electronic Communications)������� 194 Directive 2002/​73/​EC (Equal Treatment Directive (amended))����������������������� 3, 93 Directive 2003/​86/​EC [2003] OJ L251/​12 (Family Reunification Directive)������������������������������������� 15, 142 Art 14(1) ����������������������������������������������� 135 Directive 2003/​88 [2003] OJ L299/​9 (Working Time Directive (WT)) ������������������������� 112–​14, 118, 141 Art 7����������������������������������������������� 113, 119 Art 7(1) ������������������������������������������������� 113 Directive 2003/​109/​EC [2004] OJ L16/​ 44 (Long-​Term Residents Directive) Art 11������������������������������������������������������� 75 Art 11(1) ����������������������������������������������� 135 Directive 2004/​38/​EC (Citizenship Directive)����������������������������� 72, 100, 146 Art 1(a) ������������������������������������������������� 102 Art 7(1)(b)������������������������������������� 100, 102 Art 14(4)(b)������������������������������������������� 100 Art 24(1) ����������������������������������������������� 100 Art 24(2) ����������������������������������������������� 100 Directive 2004/​113/​EC [2004] OJ L373/​37 (Equal Treatment (Goods and Services) Directive)����������������41, 73, 140, 150, 181

Recital (25)������������������������������������� 181, 197 Art 5(2) ������������������������������������� 96, 97, 146 Art 8(1) ����������������������������������������� 150, 163 Art 8(2) ������������������������������������������������� 154 Art 10����������������������������������������������������� 152 Art 11����������������������������������������������������� 164 Art 12������������������������������152, 180, 181, 197 Art 12(2)(a)������������������������������������������� 163 Art 14����������������������������������������������������� 153 Directive 2006/​54/​EC [2006] OJ L204/​ 23 (Sex Equality in Employment Directive) (recast)������������40, 73, 146, 150 Art 17(1) ����������������������������������������������� 163 Art 18����������������������������������������������������� 154 Art 20������������������������������152, 180, 181, 197 Art 20(2)(a)������������������������������������������� 163 Art 20(2)(d)������������������������������������������� 163 Art 21����������������������������������������������������� 164 Art 24����������������������������������������������������� 152 Art 26����������������������������������������������������� 163 Art 29����������������������������������������������������� 164 Directive 2008/​104/​EC [2008] OJ L327/​9 (Temporary Agency Work Directive (TAW))��������������� 123, 125, 127 Art 5����������������������������������������������� 123, 133 Art 5(2) ������������������������������������������������� 133 Art 5(4) ������������������������������������������������� 133 Directive 2008/​115/​EC [2008] OJ L348/​98��������������������������������������� 142 Directive 2009/​22/​EC [2009] OJ L110/​30 (Consumers Injunction Directive), Art 2(1)����������� 154 Directive 2009/​50/​EC [2009] OJ L155/​ 17, Art 14(1) ������������������������������������� 135 Directive 2010/​41/​EU [2010] OJ L180/​1 (Equal Treatment Directive)����������������������������� 40, 146, 181 Recital (22)��������������������������������������������� 181 Art 9������������������������������������������������������� 150 Art 9(1) ������������������������������������������������� 163 Art 10����������������������������������������������������� 154 Art 11������������������������������������� 152, 180, 197 Art 11(2)(a)������������������������������������������� 163 Art 11(2)(d)������������������������������������������� 163 Art 12����������������������������������������������������� 164 Art 15(2) ����������������������������������������������� 164 Directive 2010/​64/​EU [2010] OJ L280/​1 ����������������������������������������� 142 Directive 2011/​95/​EU [2011] OJ L337/​ 9 (Qualification Directive)������������������� 16 Directive 2011/​98/​EU [2011] OJ L343/​1, Art 12 ����������������������������� 134 Directive 2012/​13/​EU [2013] OJ L142/​1�������142

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EU Secondary Legislation Directive 2013/​48/​EU [2013] OJ L294/​1����������������������������������������� 142 Directive 2014/​36/​EU [2014] OJ L94/​ 375, Art 23����������������������������������������� 135 Directive 2014/​54/​EU [2014] OJ L128/​8 (Workers Directive)������ 72, 147, 156, 178, 182, 186 Recital (15)��������������������������������������������� 159 Recital (17)��������������������������������������������� 197 Art 3������������������������������������������������������� 176 Art 3(1) ����������������������������������������� 158, 163 Art 3(3) ������������������������������������������������� 163 Art 3(6) ������������������������������������������������� 158 Art 4����������������������������������������������� 159, 181 Art 4(1)–​(3)������������������������������������������� 160 Art 4(2)(b)��������������������������������������������� 163 Art 5������������������������������������������������������� 163 Art 6(1) ������������������������������������������������� 164 Art 6(2) ������������������������������������������������� 160 Art 7(2) ������������������������������������������������� 160 Art 9������������������������������������������������������� 184 Directive 2014/​66/​EU [2014] OJ L157/​ 1, Art 18��������������������������������������������� 135 Directive 2014/​67/​EU [2014] OJ L159/​ 1, Art 11������������������������������������� 161, 176 Directive 2016/​343/​EU [2016] OJ L65/​1������������������������������������������� 143 Directive 2016/​680/​EU (General Data Protection Directive) ��������������������������� 17 Art 42(4) ����������������������������������������������� 198 Regulations Regulation 1612/​68/​EEC [1968] OJ L257/​2 (Freedom of Movement for Workers) ������������������������������� 72, 99, 146 Regulation 1408/​71/​EEC [1971] OJ L149/​2 (Social Security Schemes)��������� 99 Regulation 1035/​97/​EC [1997] OJ L151/​1 (Racism and Xenophobia) ����� 179

xxix

Regulation 45/​2001/​EC [2001] OJ L8/​ 1 (EDPS Regulation)����������������� 184, 194 Art 1(2) ������������������������������������������������� 184 Art 41(2) ����������������������������������������������� 184 Arts 41–​8����������������������������������������������� 184 Regulation 1/​2003/​EC [2003] OJ L1/​1 (rules on competition laid down in Articles 81 and 82 of the Treaty)��������������������������������������� 186, 189 Art 11(6) ����������������������������������������������� 189 Regulation 883/​2004/​EC [2004] OJ L166/​1 (Coordination of Social Security Systems Regulation) ������� 82, 102 Regulation 1922/​2006/​EC [2006] OJ L4039 (Gender Equality) Art 3������������������������������������������������������� 180 Art 4����������������������������������������������������������� 180 Regulation 168/​2007/​EC [2007] OJ L53/​1 (establishing a European Union Agency for Fundamental Rights) Art 2������������������������������������������������������� 179 Art 4(1) ������������������������������������������������� 179 Regulation 492/​2011/​EU [2011] OJ L141/​1 (Freedom of Movement Regulation), Art 7����������������72, 82, 157 Regulation 1381/​2013/​EU [2013] OJ L354/​62 (Rights, Equality and Citizenship) Art 3������������������������������������������������������� 165 Art 4������������������������������������������������������� 165 Regulation 2016/​679/​EU [2016] OJ L119/​1 (General Data Protection Regulation (GDPR)) �����������������������������17, 138, 140, 177, 185 Art 1(1) ������������������������������������������������� 137 Art 1(2) ������������������������������������������������� 137 Art 52����������������������������������������������������� 198 Art 58����������������������������������������������������� 191 Art 99����������������������������������������������������� 138 Art 99(2) ����������������������������������������������� 185

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Table of International Treaties and Conventions Convention on Human Rights and Biomedicine, Art 11����������������������������� 84 European Convention on Human Rights and Fundamental Freedom (ECHR)��������������������������������� 44, 50, 146 Protocol 12����������������������������������������������� 59 Art 14������������������������������������������������������� 59 United Nations Convention on the Rights of Persons with Disabilities (UNCRPD)������������������������������� 59,  63–​8 Art 1(1) ��������������������������������������������������� 64

Art 1(2) ��������������������������������������������������� 64 Art 5��������������������������������������������������������� 64 Art 6��������������������������������������������������������� 64 Art 7��������������������������������������������������������� 64 Art 9��������������������������������������������������������� 64 Art 13������������������������������������������������������� 64 Art 24������������������������������������������������������� 64 Art 25������������������������������������������������������� 64 Art 27������������������������������������������������������� 64 Art 28������������������������������������������������������� 64

EU Equality Law: The First Fundamental Rights Policy of the EU. Elise Muir © Elise Muir 2018. Published 2018 by Oxford University Press.

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List of Abbreviations GENERAL

AMS CFEU DPA ECHR ECtHR EDPS EQUINET FRA FTW Directive GDPR

IC Directive NGO NWO PTW Directive TAW Directive TEC TEEC TEU TFEU UNCRPD WT Directive

Association de Médiation Sociale Charter of Fundamental Rights of the European Union [2012] OJ C326/​ 391 (the Charter) Data Protection Authority European Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention on Human Rights) European Court of Human Rights European Data Protection Supervisor European Network of Equality Bodies Fundamental Rights Agency Fixed-​Term Work Directive 1999 (Council Directive (EC) 1999/​70 of 28 June 1999 concerning the framework agreement on fixed-​term work concluded by ETUC, UNICE and CEEP [1999] OJ L175/​43) General Data Protection Regulation (Regulation (EU) 2016/​679 of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/​46/​EC [2016] OJ L119/​1) Information and Consultation Directive (Directive (EC) 2002/​14 of 11 March 2002 establishing a general framework for informing and consulting employees in the European Community [2002] OJ L80/​29) non-​governmental organization Netherlands Organisation for Scientific Research (Nederlandse Organisatie voor Wetenschappelijk Onderzoek) Part-​Time Work Directive 1997 (Council Directive (EC) 97/​81 of 15 December 1997 concerning the Framework Agreement on part-​time work concluded by UNICE, CEEP and the ETUC [1998] OJ L14/​9) Temporary Agency Work Directive (Directive (EC) 2008/​104 of 19 November 2008 on Temporary Agency Work [2008] OJ L327/​9) Treaty establishing the European Community European Economic Community Treaty Consolidated Version of the Treaty on European Union [2012] OJ C326/​ 01 Consolidated Version of the Treaty on the Functioning of the European Union [2012] OJ C326/​47 (the Treaty) United Nations Convention on the Rights of Persons with Disabilities Working Time Directive (Directive (EC) 2003/​88 of 4 November 2003 concerning certain aspects of the organisation of working time [2003] OJ L299/​9)

EU Equality Law: The First Fundamental Rights Policy of the EU. Elise Muir © Elise Muir 2018. Published 2018 by Oxford University Press.

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xxxiv

List of Abbreviations JOURNALS

CLJ CLSR CML Rev CYELS EHRLR EJIL EJML EL Rev ELJ EMIL ERPL EuConst HHRJ ILJ JCMS JEPP MJ MLR OJLS REALaw Yale LJ YEL

Cambridge Law Journal Computer Law & Security Review Common Market Law Review Cambridge Yearbook of European Legal Studies European Human Rights Law Review European Journal of International Law European Journal of Migration and Law European Law Review European Law Journal European Migration and International Law European Review of Private Law European Constitutional Law Review Harvard Human Rights Journal Industrial Law Journal Journal of Common Market Studies Journal of European Public Policy Maastricht Journal of European and Comparative Law Modern Law Review Oxford Journal of Legal Studies Review of European Administrative Law Yale Law Journal Yearbook of European Law

1

1 Introduction An intense debate was sparked in the late 1990s: should the EU become a ‘Human Rights Organization’? The pressing need to reflect on the matter arose as the EU became increasingly involved with justice and home affairs, thereby intervening through legally binding tools in the fields of migration, justice, and police cooperation, with direct implications on fundamental rights. The call for greater intervention of the EU in matters concerned with fundamental or human rights1 had two main facets: How could fundamental rights concerns be efficiently incorporated in the daily functioning of the EU? Should human rights constitute new core policies of the EU? The former focuses on an improved monitoring of fundamental rights’ compliance across existing EU policies. The latter is concerned with broadening the mandate of the EU to cover human rights, either in the form of a new distinct policy or in realizing fundamental rights through EU intervention across existing policies. Twenty years, several treaty reforms, and one Charter of Fundamental Rights later, in the midst of a migration, security, and economic crisis, the relevance of the debate has been anything but tempered. While these questions taken together are the subject of a book recently published by Dawson,2 the present monograph revisits specific implications of the second question in the EU as we know it today. Despite increasing attention being paid to fundamental rights in the daily functioning of the EU, it is clear that no treaty revisions have given a broad mandate for the EU to address fundamental rights protection across the Member States. That role remains entrusted to the Member States themselves and to the Council of Europe, with the notable exception of Article 7 of the Treaty on European Union (TEU). That provision sets out a procedure intended to empower the EU to monitor and possibly react to a serious breach by a Member State of the values on which the EU is founded, including respect for human rights. This is already the subject of much academic attention.3

1  Please note that the notions of ‘fundamental rights’ and ‘human rights’ are used interchangeably in this book. 2  Mark Dawson, The Governance of EU Fundamental Rights (CUP 2017). 3  Examples include: Dimitry Kochenov and Laurent Pech, ‘Better Late than Never? On the European Commission’s Rule of Law Framework and its First Activation’ (2016) 54 JCMS 1062; Laurent Pech and Kim Lane Scheppele, ‘Poland and the European Commission, Part III: Requiem for the Rule of Law’ (2017) Verf Blog. EU Equality Law: The First Fundamental Rights Policy of the EU. Elise Muir © Elise Muir 2018. Published 2018 by Oxford University Press.

2

2

1. Introduction

The focus of this book, which has been subject to far less analysis, is the progressive development of EU policies intended to realize specific fundamental rights. Despite the clear rejection of a general mandate for the EU in this field, over the past two decades EU competences have emerged explicitly—​and at times almost exclusively—​to give shape to a given fundamental right. EU intervention in such fields develops a legal and policy regime intended to promote the relevant fundamental right at domestic level. It is argued throughout this book that EU equality law provides a particularly useful example of such a policy: it has developed since the Amsterdam Treaty in reference to a legal basis that stands independently of the internal market rationale common to most EU policies. Over the years it has gained a particularly clear and forceful human rights connotation. And it has been encapsulated in a remarkably ambitious as well as homogeneous set of legislative instruments combining both substantive guidance on the right itself, and a toolbox to improve the effectiveness and governance of the said right in domestic spheres. As such specific fundamental rights competences and relevant areas of law have emerged despite the reluctance of the Member States to grant the EU a core human rights policy, the constitutional setting in which they are embedded today warrants investigation. What characterizes equality law today, as our key example, is twofold. First, there is a strong trend towards the constitutionalization of equality law (ie the narrative on equality law is very often couched in constitutional terms). This is common in the dynamics of EU law and has often been criticized in the context of internal market law-​making. As a consequence, there is confusion on the relationship between the right to equal treatment as enshrined in legislation and the constitutional version of the right protected by EU primary law. This confusion is best illustrated by rulings such as Mangold,4 Kücükdeveci,5 Dansk Industri,6 or Test-​ Achats,7 where the boundaries between two layers of EU norms are blurred. Second, the equality law directives adopted from the year 2000 onwards have brought in a very diverse set of rules intended to support a change in mentality from within domestic legal and policy arenas. The infrastructure of EU law is therefore being used to perform a transformative function of a particularly ambitious nature. These two remarks on EU equality law as it stands today have one important point in common: they both build on very well-​known features of EU law. These are a high level of constitutionalization and a supranational legal order highly integrated in that of the Member States. In other words, a fundamental rights policy developed through the medium of EU law, even if narrowly focused on a single fundamental right as EU equality law is, carries the full strength of EU law. This may be obvious. It is, however, worth investigating. Does the EU, in developing legislation that shapes the content of a right deemed to be fundamental and that diversifies the tools for anchoring that right in our societies, not have unique strengths as well as weaknesses? 4  Werner Mangold v Rüdiger Helm [2005] ECLI:EU:C:2005:709. 5  Seda Kücükdeveci v Swedex GmbH & Co KG [2010] ECLI:EU:C:2010:21. 6  Dansk Industri (DI), acting on behalf of Ajos A/​S v Estate of Karsten Eigil Rasmussen [2016] ECLI:EU:C:2016:278. 7  Association Belge des Consommateurs Test-​Achats ASBL and others v Conseil des ministres [2011] ECLI:EU:C:2011:100.

3

A. Equal Treatment as a Cornerstone

3

It is submitted that the use of EU law to define and promote a given fundamental right, such as that to equal treatment, in the context of a competence specifically devoted to that purpose, creates a significant risk of over-​constitutionalization. This risk, which amounts to limiting political debate on the definition of fundamental rights, is best understood after reviewing the main theoretical components of the debate on law-​making in the field of human rights (Chapter 2). This will allow for a demonstration of the implications of this risk actually materializing in the context of EU equality law (Chapter 3) as well as the development of an argumentation to prevent its spreading to other prongs of EU law (Chapter 4). The initial chapters of the book thus call for the preservation of elements of flexibility inherent in legislative law-​making when the EU regulates the fundamental right to equal treatment. Building on this approach, Chapter 5 suggests an understanding be drawn of the wide range of tools created under the umbrella of EU law to support a human rights culture in domestic arenas as the main added value of EU legislative intervention in the field. These tools indeed plant the seeds from which societal change is most likely to emerge as they allow for interactive as well as reflexive processes. Before engaging with the detail of the argumentation supporting these theses, the focus on EU equality law is further explained.

A.  Equal Treatment as a Cornerstone of European Integration The principle of equality or non-​discrimination8 constitutes one of the cornerstones of the process of European integration. The pursuit of equality among the people and states is a primary objective.9 This has long been perceived as a precondition to progressing towards ‘an ever closer union among the peoples of Europe’10—​to the extent that the Union is actually ‘founded’ on the value of equality.11 References to equality are therefore very diverse.12 Yet they all find a common origin in a ‘meta-​ principle of equality’ defined by reference to the Aristotelian formula adjusted in the context of EU law: compliance with the principle of non-​discrimination requires that comparable situations must not be treated differently, and that different 8  These notions are used interchangeably. 9  eg Articles 3(3), 4(2) Consolidated Version of the Treaty on European Union [2012] OJ C326/​ 01 (hereafter TEU), Article 8 Consolidated Version of the Treaty on the Functioning of the European Union [2012] OJ C326/​47 (hereafter TFEU). 10  Article 1 TEU. 11  Article 2 TEU. 12  The different functions of the principle of equal treatment as a fundamental right are explored for instance by Sophia Koukoulis-​Spiliotpoulos, ‘The Amended Equal Treatment Directive (2002/​ 73): An Expression of Constitutional Principles/​Fundamental Rights’ (2005) 12 MJ 327, 331–​32; Takis Tridimas, General Principles of EU Law (2nd edn, OUP 2006) 60. For a more general discussion of the role of fundamental rights in such a context, see the exchange of views in Jason Coppel and Aidan O’Neill, ‘The European Court of Justice: Taking Rights Seriously?’ (1992) 29 CML Rev 669, 669; and Joseph HH Weiler and Nicolas JS Lockhart, ‘ “Taking Rights Seriously” Seriously: The European Court and its Fundamental Rights Jurisprudence—​Part I’ (1995) 32 CML Rev 51, as well as ‘ “Taking Rights Seriously” Seriously: The European Court and its Fundamental Rights Jurisprudence—​Part II’ (1995) 32 CML Rev 579. For earlier writing on the issue, see also Manfred Zuleeg, ‘Fundamental Rights and the Law of the European Communities’ (1971) 8 CML Rev 446, 450; and Judge Pescatore, ‘The Protection of Human Rights in the European Communities’ (1972) 1 CML Rev 73.

4

4

1. Introduction

situations must not be treated in the same way unless such treatment is objectively justified.13 This principle has been granted constitutional status and is frequently referred to as a general principle of EU law.14 As such, the general principle of equality and its expressions in primary and secondary law serve as benchmarks15 to assess the soundness of decision-​making by EU actors16 as well as by the Member States acting within the scope of EU law.17 It demands that decision-​makers be capable of explaining the legitimacy, appropriateness, and necessity of specific distinguishing criteria and the negative impact of a decision on certain categories of actors or products. It is thus a tool for good governance.18 Among the diverse references to non-​discrimination are a number of expressions of the principle that substantiate the meta-​principle in the context of a specific policy. What many of these references have in common is that they are primarily driven by the goal of market-​making for goods, services, and legal and natural persons, as well as capital.19 In this context, the principle of equality is framed in terms of non-​discrimination on grounds of nationality and is designed to erase boundaries progressively for economic entities among the Member States. Other references to equality are the expression of a more ambitious societal goal:  they constitute an example of what Walker has named ‘second-​generation rights’ in the context of EU law.20 These rights were developed after the original framework defined the four freedoms and the necessary property rights and economic freedoms.21 These latter provisions, which may be found in primary as well as secondary law, belong to policies driven by the intent to further equality among the people of Europe.22 Here non-​discrimination is more than a principle regulating the mechanics of institutional law or a tool to regulate the relationship among 13  Albert Ruckdeschel & Co and Hansa Lagerhaus Ströh & Co v Hauptzollamt Hamburg-​St Annen; Diamalt AG v Hauptzollamt Itzehoe [1977] ECLI:EU:C:1977:160, para 7. The first limb of this formula is the most classic expression of the principle but the second limb is also of practical relevance, eg Zoi Chatzi v Ypourgos Oikonomikon [2010] ECLI:EU:C:2010:534, paras 68–​75. 14  Albert Ruckdeschel & Co and Hansa Lagerhaus Ströh & Co v Hauptzollamt Hamburg-​St Annen; Diamalt AG v Hauptzollamt Itzehoe [1977] ECLI:EU:C:1977:160, para 7. See also Land Oberösterreich v Čez [2009] ECLI:EU:C:2009:660, para 91. 15  On the functions of the principle, eg Gillian More, ‘The Principle of Equal Treatment: From Market Unifier to Fundamental Right?’ in Paul Craig and Gráinne de Búrca (eds), The Evolution of EU Law (OUP 2011) 517; Gráinne de Búrca, ‘The Role of Equality in European Community Law’ in Alan Dashwood and Siofra O’Leary (eds), The Principle of Equal Treatment in EC Law (Sweet & Maxwell 1997) 13. 16  Including the legislator, eg Association Belge des Consommateurs Test-​Achats ASBL and others v Conseil des ministers [2011] ECLI:EU:C:2011:100. 17  By analogy Åklagaren v Hans Åkerberg Fransson [2013] ECLI:EU:C:2013:105, paras 16–​31. 18  Illustrating the implementation of fundamental rights for that purpose, see: Commission (EU), ‘2014 Report on the Application of the EU Charter of Fundamental Rights’ COM (2015) 191 final, 8 May 2015; and Council (EU), ‘Guidelines on Methodological Steps to be Taken to Check Fundamental Rights Compatibility at the Council Preparatory Bodies’ 5377/​15, 20 January 2015. 19  See also competition law and agricultural policy. 20  Neil Walker, ‘Human Rights in a Post-​National Order: Reconciling Political and Constitutional Pluralism’ in Tom Campbell, Keith D Ewing, and Adam Tomkins (eds), Sceptical Essays on Human Rights (OUP 2001) 137. 21  ibid 136. 22  Fritz W Scharpf, ‘Perpetual Momentum: Directed and Unconstrained?’ (2012) 19 JEPP 127, 132–​33.

5

B. EU Equality Law as a Social Policy

5

national markets; it is one of the central constituents of a project for greater harmony between, as well as within, the societies of the Member States. The identification of the social function of equality is commonly illustrated by reference to the landmark statement of the Court of Justice of the European Union (‘the Court’) in Defrenne II, according to which the principle of equal pay between men and women ‘forms part of the social objectives of the [Union], which is not merely an economic union, but is at the same time intended . . . to ensure social progress and seek the constant improvement of the living and working conditions’.23 Today the EU is, for example, expected to actively seek to combat discrimination on a variety of grounds,24 as well as to combat it while defining and implementing its policies and activities,25 with the emphasis on equal treatment between men and women.26

B.  EU Equality Law as a Social Policy with a Transformative Mandate The pursuit of equality with this social connotation is both an ancient competence and a particularly modern and dynamic EU policy. The Rome Treaty contained provisions that have set the floor for a wealth of legislation and case law on equal treatment in employment, with the prohibition of nationality discrimination against workers from another Member State27 as well as sex discrimination as regards pay.28 This legal framework quickly developed through political initiatives and judicial law-​making.29 It was considerably broadened following the entry into force of the Amsterdam Treaty. What is today Article 19 of the Treaty on the Functioning of the European Union (TFEU) indeed empowers EU institutions to take appropriate action also to combat discrimination based on racial or ethnic origin, religion or belief, disability, age, or sexual orientation, thus paving the way for a spectacular broadening and modernization of EU equality law. This set of references to equality is the focus of this book in so far as it is constitutive of EU equality policy.30 Legislation giving flesh to the principle of equality has also blossomed in the context of employment and migration law.31 EU equality policy defined in that sense performs both ‘public and private’ functions.32 ‘Public’ is understood in terms of the law regulating relationships among public authorities as well as between public authorities and private parties. The principle of equality as a ‘public law’ principle has been designed to regulate the structures of the EU legal 23  Gabrielle Defrenne v Société anonyme belge de navigation aérienne Sabena [1976] ECLI:EU:C:1976:56, para 10. 24  eg Articles 18, 19, 157 TFEU. 25  Article 10 TFEU. 26  Article 8 TFEU. 27  Article 45(2) TEEC. 28  Article 119 TEEC. 29  Alec Stone Sweet, The Judicial Construction of Europe (OUP 2004) 147. 30  See also Elise Muir, ‘Pursuing Equality in the EU’ in Anthony Arnull and Damian Chalmers (eds), The Oxford Handbook of European Union Law (OUP 2015). 31  As will be detailed in Chapter 4. 32 As developed in Elise Muir, ‘The Transformative Function of EU Equality Law’ (2013) 21 ERPL 1231.

6

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1. Introduction

order in two ways. First, it asserts equality between states and prohibits discrimination on the grounds of nationality in order to advance the process of European (economic) integration. (The prohibition of nationality discrimination has also gained a more social dimension in recent years, as will be discussed further.33) Second, the prohibition of discrimination on other grounds, such as sex or race/​ethnic origin, applies to EU and national institutions34 in order to ensure the soundness of EU governance in its impact on individuals. The principle thereby performs a ‘fundamental rights’ function in the classic sense of the term, namely protecting individuals against the arbitrariness of public authorities. In both contexts, the principle of equality is a tool shaping the infrastructure of European societies. In other words, it regulates the functioning of the institutions, whether they are European or national, and operates as a constitutional principle that at times is given shape through legislation. In addition to this ‘infrastructural’ function, the principle of equal treatment also performs a private function when it is used to articulate interpersonal relationships. In this ‘private’ sense, EU equality law is designed to transform society from the inside. For example, the recent directives adopted on the basis of Article 19 TFEU, which give expression to the principle of equal treatment in employment and beyond, are instruments largely designed to ‘combat’ discrimination between private persons (for example employee/​employer, consumer/​insurer). This ‘private’ function can be contrasted with the ‘public’ function of EU equality law as it is used to pursue ‘inter-​personal equality per se’.35 In so far as EU equality law seeks to regulate both public and private relations and to impact on societal practices by identifying ‘bad attitudes’,36 it will be referred to as having a ‘transformative’ function.37 This book does not address the issue of whether EU equality actually succeeds in transforming societal habits and eradicating discriminatory practices. A glance at the work of the European Network of Legal Experts in the Non-​Discrimination Field suffices to illustrate how much still needs to be done.38 Similarly, it is not denied that domestic or international rules on the matter existed before the adoption of the relevant EU instruments.39 Instead, the purpose of this book is to reflect on the dynamics of today’s EU equality law. EU equality law has been shaped into a tool designed to tackle a fairly clearly circumscribed yet vast array of unwanted societal practices; this is a remarkably ambitious programme for an EU policy. For this 33  See Chapter 3. 34  As well as bodies and agencies. The prohibition is only relevant within the scope of EU law. 35  Scharpf (n 22) 132–​33. 36  Alexander Somek, Engineering Equality:  An Essay on European Antidiscrimination Law (OUP 2011) 16 and further 91. 37  The expression is borrowed from Alec Stone Sweet and Kathleen Stranz, ‘Rights Adjudication and Constitutional Pluralism in Germany and Europe’ (2012) 19 JEPP 92, 96; see also Colm O’Cinneide, ‘The Constitutionalisation of Equality within the Legal Order of the EU: Sexual Orientation as a Testing Ground’ (2015) 22 MJ 370. 38  European Network of Legal Experts in Gender Equality and Non-​Discrimination, available at (accessed 1 February 2018). 39  eg ILO Equal Remuneration Convention, 1951 (No 100) (adopted 29 June 1951, entered into force 23 May 1953). See further Catherine Hoskyns, Integrating Gender: Women, Law and Politics in the European Union (Verso 1996) 53.

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purpose, the two functions of EU equality law, ‘infrastructural’ and ‘transformative’ as just described, coexist and are complementary. The transformative function of EU equality law relies heavily on the existence of an infrastructural role for such a policy to eliminate the bias of public structures; yet the transformative function of EU equality law reaches beyond the realm of EU public law by also requiring private actors to adjust their societal habits. In fact, EU equality law has now developed into a largely—​although admittedly not fully40—​autonomous fundamental rights policy, thus breaking new boundaries in EU law.

C.  EU Equality Law as an (Autonomous) Fundamental Rights Policy The function of the principle of equality in European law evolved greatly in the early years of the European integration project. The European Economic Community Treaty (TEEC) was primarily understood as an international law instrument which would restructure relationships between the states of Europe. One of its central tools to achieve that was the prohibition of nationality discrimination. It was meant to weigh on the European public order and set powerful constitutional dynamics designed to address—​in the long term—​structural imbalances in relations between states as well as between states and their people. The Treaty of Rome also included a reference to the (very narrowly defined) principle of equal pay for equal work between men and women enshrined in Article 119 TEEC (now Article 157(1) TFEU). That principle was initially only understood as a structural instrument, ancillary to the building of the internal market; it was intended to prevent distortions of competition due to diverging domestic legislation on the wages of female employees.41 From the 1960s onwards, the story is well known. The Court distinguished the nature of the European project from that of a traditional international legal order: the EU has a unique legal system integrated into those of the Member States, owing to the principles of primacy and direct effect. European law was thus capable of creating rights and obligations for private parties directly.42 This allowed individuals to enforce infrastructural rules of the EU legal order against their own institutions. The specificity of the EU legal order was taken one step further when the Court, despite the reluctance of the Member States,43 asserted that treaty provisions were not only capable of vertical, but also of horizontal direct effect in the Defrenne II case. It is perhaps unsurprising that private litigants sought to rely on the principle of equal pay for equal work enshrined in Article 119 TEEC, as in Defrenne II, in order to challenge an unbalanced private contractual arrangement.44 The very notion of 40  See further Chapter 3 section A.3.b. 41  On the history of that provision, see further Hoskyns (n 39) Ch 3. 42  NW Algemene Transport-​en Expeditie Orderneming van Gend en Loos v Netherlands Inland Revenue Administration [1963] ECLI:EU:C:1963:1 English special edition 1. 43  Alec Stone Sweet and Thomas Brunell, ‘Constructing a Supranational Constitution’ and Alec Stone Sweet and Rachel Cichowski, ‘Sex Equality’ in Alec Stone Sweet, The Judicial Construction of Europe (OUP 2004) Chs 2 and 4 respectively. 44  Gabrielle Defrenne v Société anonyme belge de navigation aérienne Sabena [1976] ECLI:EU:C:1976:56, paras 38–​39. Exploring the background of the dispute, Hoskyns (n 39) 60–​77.

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equal pay for equal work planted the seeds of EU regulation of private employment contracts. As pointed out already, the rationale for this novel jurisdictional approach was the understanding that the principle of equal pay had a social dimension besides its internal market rationale.45 The Court soon further stressed that the elimination of discrimination on the grounds of sex forms part of the observance of fundamental rights, which the EU has a duty to ensure.46 Building on this innovative approach to the role of European law, the Court progressively expanded the possibilities for individuals to rely on the principle of equality as asserted in the Treaty against other individuals, starting from the 1970s and culminating in the late 1990s. Perhaps the clearest example of the transformative function of the principle is to be found in the wording of the Angonese case, which related to nationality discrimination.47 In that case the Court made it clear that: Article [45 TFEU] lays down a fundamental freedom and . . . constitutes a specific application of the general prohibition of discrimination contained in [Article 18 TFEU]. In that respect, like Article [157 TFEU], it is designed to ensure that there is no discrimination on the labour market . . . Consequently, the prohibition of discrimination on grounds of nationality laid down in Article [45] of the Treaty must be regarded as applying to private persons as well.48

From Defrenne II to Angonese, the Court thus departed from the narrow wording of the Treaty on the prohibition of sex and nationality discrimination as market unifiers, and revealed the dormant transformative function of EU equality law. This function is now considered to exist alongside the internal market objectives of EU law.49 It is common to refer to this judicial transformation of the role of EU equality law as a transition from an economic understanding of the prohibition of discrimination to that of a social approach, or at least to a new approach combining both.50 This should not be misunderstood: this transition is about much more than simply setting high standards of social protection at the expense of a deregulatory approach to free trade. Special emphasis will be placed in this book on the fact that the standards 45  Gabrielle Defrenne v Société anonyme belge de navigation aérienne Sabena [1976] ECLI:EU: C:1976:56, paras 8–​12. 46  Gabrielle Defrenne v Société anonyme belge de navigation aérienne Sabena [1978] ECLI:EU: C:1978:130, paras 26–​27. 47  Roman Angonese v Cassa di Risparmio di Bolzano SpA [2000] ECLI:EU:C:2000:296, paras 33–​36. See also BNO Walrave and LJN Koch v Association Union cycliste international, Koninklijke Nederlandsche Wielren Unie and Federación Espanola Ciclismo [1974] ECLI:EU:C:1974:140, para 17; and Union royale belge des sociétés de football association ASBL v Jean-​Marc Bosman, Royal club liégeois SA v Jean-​Marc Bosman and others and Union des associations européennes de football (UEFA) v Jean-​Marc Bosman [1995] ECLI:EU:C:1995:463. 48  Roman Angonese v Cassa di Risparmio di Bolzano SpA [2000] ECLI:EU:C:2000:296, paras 35–​36. 49  The social function of EU sex equality law is predominant over its internal market function, Deutsche Telekom AG v Lilli Schröder[2000] ECLI:EU:C:2000:72, paras 56–​57; EU internal market policy must be balanced against the objectives pursued by EU social policy, Laval un Partneri Ltd v Svenska Byggnadsarbetareförbundet, Svenska Byggnadsarbetareförbundetsavdelning 1, Byggettan and Svenska Elektrikerförbundet [2007] ECLI:EU:C:2007:809, para 105. 50  This second approach has been forcefully argued throughout  Mark Bell, Anti-​Discrimination Law and the European Union (OUP 2002).

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hereby heralded are the expression of a fundamental right,51 the right is thus highly moralized.52 The prohibition of sex and nationality discrimination was considered, from the late 1980s, to form part of the ‘acquis materiel fondamental’ of the EU.53 The understanding of EU equality law as being the expression of a fundamental right (see section C.1) and the importance of the interaction between equality legislation and the fundamental right to equal treatment (see section C.2) deserves elaboration at the outset. It will be argued that EU equality law can in many ways be understood as the ‘first’ fundamental rights policy of the EU (see section C.3).

1. EU equality law gives expression to the fundamental right to equal treatment Although it is difficult for obvious practical reasons to perform an exhaustive search, one can find examples of academic legal texts analysing EU equality law as the expression of fundamental rights from the late 1980s to the early 1990s.54 In 1991, for instance, Docksey authored an article entitled ‘The Principle of Equality between Women and Men as a Fundamental Right under Community Law’ and pointed out the ‘necessity to embody [this] fundamental right in EC legislation’.55 Nevertheless, until fairly recently, a significant part of academia perceived EU law as not having a fundamental rights ‘policy’; let alone, of course, being a fundamental rights organization as such. Established observers of the evolution of EU law have remarked on this, such as Jacqueline Dutheil de la Rochère in 2004: ‘the Community treaties do not contain any special reference to fundamental rights of individuals: their substantive provisions are entirely devoted to the determination of competences in the area of the four freedoms, to competition and the common policies’.56 The fundamental rights dimension of EU equality policy has only been fully asserted in recent years. By the early years of the new millennium it had become unquestionable. Admittedly, the Court has long asserted that the right not to be discriminated against on grounds of sex is one of the fundamental human rights whose 51  See Charter of Fundamental Rights of the European Union [2012] OJ C326/​391, Article 21. 52  For a thoughtful overview of the evolution of the rationale of EU equality law, see also Sacha Prechal, ‘ “Non-​Discrimination Does Not Fall Down from Heaven”: The Context and Evolution of Non-​Discrimination in EU Law’ (2009) Eric Stein Working Paper No 4/​2009, 10. 53  José Luis da Cruz Vilaça and Nuno Piçarra, ‘Y a-​t-​il des limites matérielles à la révision des traités instituant les Communautés européenne?’ (1993) 23 Cahiers de Droit Européen 3, 29. 54  The preamble to the Community Charter of the Fundamental Social Rights of Workers (adopted 9 December 1989) states that ‘it is important to combat every form of discrimination, including discrimination on grounds of sex, colour, race, opinions and beliefs’. 55  Chris Docksey, ‘The Principle of Equality between Women and Men as a Fundamental Right under Community Law’ (1991) 20 ILJ 258, 259. See also More (n 15) 517 and Sacha Prechal, ‘Equality of Treatment, Non-​Discrimination and Social Policy: Achievements in Three Themes’ (2004) 41 CML Rev 533, 547 et seq. 56  Jacqueline Dutheil de la Rochère, ‘The EU and the Individual: Fundamental Rights in the Draft Constitutional Treaty’ (2004) 41 CML Rev 345, 345; see also her word of caution on sex equality law at 347. See also, although written a little earlier, AG Toth, ‘The European Union and Human Rights: The Way Forward’ (1997) 34 CML Rev 491, 499.

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observance the Court has a duty to ensure.57 Yet, it was not until 2000 that the Court went further to assert that Article 157 TFEU on sex equality in employment actually ‘constitutes the expression of a fundamental human right’58 (emphasis added). Indeed, in the Deutsche Post cases, the Court set out its reasoning in three stages: 55. . . . the Court has stressed that Article 119 TEC 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 constant improvement of the living and working conditions of the peoples of Europe, as is emphasized in the Preamble to the Treaty. That aim is accentuated by the insertion of Article 119 into the body of a chapter devoted to social policy whose preliminary provision, Article 117 TEC (Articles 117 to 120 TEEC have been replaced by Articles 136 EC to 143 EC), 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 (Defrenne II, paragraphs 10 and 11). 56. However, in later decisions the Court has repeatedly held that the right not to be discriminated against on grounds of sex is one of the fundamental human rights whose observance the Court has a duty to ensure (see, to that effect, Case 149/​77 Defrenne III [1978] ECR 1365, paragraphs 26 and 27, Joined Cases 75/​82 and 117/​82 Razzouk and Beydoun v Commission [1984] ECR 1509, paragraph 16, and Case C-​13/​94 P. v S. and Cornwall County Council [1996] ECR I-​2143, paragraph 19). 57. In view of that case-​law, it must be concluded that the 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.59 (emphasis added)

In paragraphs 55, 56, and 57 of the Deutsche Post ruling, the Court thus moved from (i) an analysis of ex-​Article 119 TEEC on sex equality in matters of salary as forming part of the social objectives of the Community; (ii) to the reassertion of the right not to be discriminated against on grounds of sex as one of the fundamental human rights, observance of which the Court has a duty to ensure; and finally (iii) to upgrading the social purpose of ex-​Article 119 TEEC on sex equality to its first function. This final and innovative upgrade has been legitimized by reference to the fact that ex-​Article 119 TEEC constitutes the expression of a fundamental human right. The nuance in the wording constitutes more than a linguistic twist:60 it illustrates a shift in the perception of this field of law in the late 1990s–​early 2000s towards understanding EU equality law as a fundamental rights ‘policy’, namely a set of policy tools designed to put into effect a fundamental right. As argued by Koukoulis-​Spiliotopoulos, the formula by which ex-​Article 119 TEEC is understood as constituting the expression of a fundamental human right 57 Paraphrasing Gabrielle Defrenne v Société anonyme belge de navigation aérienne Sabena [1978] ECLI:EU:C:1978:130, paras 26–​27. 58  Deutsche Post AG v Elisabeth Sievers and Brunhilde Schrage [2000] ECLI:EU:C:2000:76, paras 55–​57; see also Deutsche Telekom AG v Lilli Schröder [2000] ECLI:EU:C:2000:72, paras 55–​57. 59  Deutsche Post AG v Elisabeth Sievers and Brunhilde Schrage [2000] ECLI:EU:C:2000:76, paras  55–​57. 60  See also Prechal (n 55) 548.

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in paragraph 57 of the Deutsche Post ruling applies to any EU gender equality provision.61 In fact, it can now be assumed that the formula applies to any provision of EU equality legislation as identified above.62 The Court indeed applied it to legislation adopted on the basis of Article 19 TFEU in Mangold63 from 2005. This was confirmed in 2010 in the Kücükdeveci case in the following terms: Directive 2000/​78 merely gives expression to, but does not lay down, the principle of equal treatment in employment and occupation, and that the principle of non-​discrimination on grounds of age is a general principle of European Union law in that it constitutes a specific application of the general principle of equal treatment (see, to that effect, Mangold, paragraphs 74 to 76).64 (emphasis added)

Although the Court has so far declined invitations to use the same expression and approach for principles given specific expression in directives outside the scope of equality law,65 there is no reason why it should not prevail when individuals seek to invoke the other Article 19 TFEU criteria given expression to in directives adopted precisely on the basis of the said Article 19 TFEU.66 Indeed, Article 19 TFEU mandates the EU legislator to combat discrimination on grounds of sex, racial or ethnic origin, religion or belief, disability, age, or sexual orientation, without distinguishing between them. Sex equality legislation adopted on the basis of Article 157 TFEU would a fortiori (in the light of the Deutsche Post ruling) also be deemed to constitute an expression of the fundamental right to equal treatment. The timing of both sets of jurisprudential developments on sex equality and the Article 19 TFEU directives is perhaps no coincidence, occurring in a period when Article 19 TFEU was inserted into the EU Treaties by the Treaty of Amsterdam (which entered into force in 1999)  and the Charter of Fundamental Rights of the European Union (CFEU or ‘the Charter’) was proclaimed (2000) and gained binding force (2009).67 Article 19 TFEU indeed constitutes the first (ever) legal basis for the adoption of fundamental rights legislation in EU law. This legal basis stands alone, without the legislator having to prove a link with other—​more traditional—​hobby horses of the EU, such as internal market policy. It also allows for the adoption of legislation covering a fairly wide range of discrimination. Meanwhile Article 21 CFEU68 prohibits any discrimination on the grounds covered by Article 19 TFEU as well as others in the field of application of EU law.69 Both articles thus suggest that the EU has a stronger mandate to protect the fundamental 61  Koukoulis-​Spiliotpoulos (n 12) 330. 62  See further Chapter 3. 63  Werner Mangold v Rüdiger Helm [2005] ECLI:EU:C:2005:709, paras 74–​76. 64  Seda Kücükdeveci v Swedex GmbH & Co KG [2010] ECLI:EU:C:2010:21, para 50. 65 eg Association de médiation sociale v Union locale des syndicats CGT and others [2014] ECLI:EU:C:2014:2, paras 41–​49. See further Chapter 4, section A. 66  See, for instance, Opinion of Advocate General Jääskinen, Jürgen Römer v Freie und Hansestadt Hamburg [2011] ECLI:EU:C:2010:4251, paras 125 et seq; as well as Opinion of Advocate General Tanchev, Vera Egenberger v Evangelisches Werk für Diakonie und Entwicklung eV [2017] ECLI:EU:C:2017:851, paras 42–​45. 67  The Amsterdam Treaty also amended what is today Article 157 TFEU to turn it into a legal basis for the adoption of legislation on equal treatment between men and women in employment. 68  See also Charter Article 23 on sex equality. 69  Article 21 TFEU provides for an open-​ended list of grounds.

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right to non-​discrimination both at the primary and secondary law levels than it had in the past.

2. Why does understanding EU equality law as a fundamental rights policy matter? Understanding EU equality law as giving expression to a fundamental right and thus constituting a fundamental rights policy as such has three main implications, which this book further elaborates.70 First, the provisions of the TFEU enabling EU political institutions to legislate—​ ie to develop a policy to combat discrimination—​have institutional dynamics that are distinct from the provisions on economic integration, on the one hand, and social rights and policy, on the other. Article 19 TFEU provides the legal basis for the adoption of legislation to combat discrimination on the grounds of sex, racial or ethnic origin, religion or belief, disability, age, or sexual orientation and stands separately from internal market provisions and flanking policies. It can be found in Part Two of the Treaty, which is specifically devoted to ‘Non-​Discrimination and Citizenship of the Union’. Article 157 TFEU, which is more specifically concerned with equal treatment on grounds of sex in employment, forms part of the specific title on ‘Social Policy’ but is singled out within this title because the rules on decision-​making through social dialogue and collective bargaining do not apply to it.71 Furthermore, and importantly, the provisions of the Charter on ‘Equality’ (Title III) are clearly distinct from those on ‘Solidarity’ (Title IV), which are concerned with social rights and principles. Overall, the latter are worded in less compelling terms and several Member States have expressed reservations on their justiciability.72 No similar reservations have been expressed with regard to the justiciability of the provisions on ‘Equality’.73 As a consequence, EU equality law may pursue social objectives but is today primarily understood as giving expression to the fundamental right of equal treatment for institutional purposes, thus triggering the need for specific legal tools and mechanisms. The provisions on nationality discrimination belong to a more complex institutional setting, which will be discussed later in this book.74 Second, because EU equality legislation is deemed to be the expression of the fundamental right to equal treatment, its status has been constitutionalized or 70  Exploring these implications, see also Koukoulis-​Spiliotpoulos (n 12) 331–​32. 71  See Articles 153, 155(2) TFEU; contrast in particular Article 153(1)(i) TFEU on the EU supporting and complementing the activities of the Member States with Article 157(3) TFEU in ensuring the application of the principle of equal treatment. The wording of Article 157(3) TFEU seems much more powerful and is not covered by the measures on collective bargaining introduced by Article 155(2) TFEU read in conjunction with Article 153 TFEU. See further Bell (n 50) 128–​31. 72  eg Protocol (No 30) on the application of the Charter of Fundamental Rights of the European Union to Poland and to the United Kingdom [2008] OJ C115/​313. 73  Reflecting on the relationship between the provisions of the Charter on ‘Equality’ and those on ‘Solidarity’, see Vojtech Belling, ‘Supranational Fundamental Rights or Primacy of Sovereignty? Legal Effects of the So-​Called Opt-​Out from the EU Charter of Fundamental Rights’ (2012) 18 ELJ 251, 255, and 261. 74  See Chapter 3.

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‘ossified’.75 In the rulings already mentioned, Mangold and Kücükdeveci, the Court applied EU equality legislation, giving expression to the fundamental right to equal treatment. The Court thus granted the authority of primary law to the substantive content of the legislation giving expression to the fundamental right to equal treatment.76 While this approach consolidates the level of protection afforded to the said fundamental right and may enhance its justiciability,77 it also leads to more ambiguous consequences. As a result of this constitutionalization process, a whole policy area is seemingly removed from the daily decision-​making process of the EU.78 In so far as the substance of the legislation is merged into and its effects are derived from primary law, changes to any of these aspects may not simply result from ordinary political processes and may instead have to be triggered and mediated through ‘constitutional’ avenues. This warrants that attention be paid to the legal and political implications of the atypical constitutional framework in which EU equality law is currently developing. Fundamental rights may indeed perform a ‘unifying ideal’ as much as they may be ‘divisive’ and differ from polity to polity.79 The strengths and weaknesses of the institutional setting together with the tension between constitutionalization and politicization of a supranational fundamental rights policy ought therefore to be identified and analysed.80 Third, and importantly, the drive towards a fundamental rights policy at EU level comes with a significant methodological shift. Von Bogdandy pointed out, in his reflection on the desirability (or lack thereof ) of the EU becoming a human rights organization, that devoting policy tools to enhance the protection of fundamental rights implies moving away from text-​based science for fundamental rights protection towards policy formation and implementation.81 This methodological shift in the analysis of systems of fundamental rights protection places emphasis on political processes shaping a fundamental rights policy and has been much less explored than tensions created by constitutional adjudication on fundamental rights matters. Too little attention is indeed paid to the role of legislatures in shaping laws that have fundamental rights implications.82 This book seeks to address this asymmetry in the debate on EU fundamental rights law83 through a detailed analysis of EU equality law and law-​making. In addition to emphasizing the role of the EU legislature in the field of fundamental rights

75  Opinion of Advocate General Trstenjak, Maribel Dominguez v Centre informatique du Centre Ouest Atlantique and Préfet de la région Centre [2011] ECLI:EU:C:2011:559, para 157. 76  In these cases, the primary norm involved was a general principle of EU law. 77  Elise Muir, ‘Of Ages in—​and Edges of—​EU Law’ (2011) 48 CML Rev 39. 78  See also Armin von Bogdandy, ‘The European Union as a Human Rights Organization? Human Rights and the Core of the European Union’ (2000) 37 CML Rev 1307, 1313. 79  See Joseph HH Weiler, ‘Fundamental Rights and Fundamental Boundaries: On Standards and Values in the Protection of Human Rights’ in Nanette A Neuwahl and Allan Rosas (eds), The European Union and Human Rights (Martinus Nijhoff Publishers 1995) 51; von Bogdandy (n 78) 1308. 80  As will be done in Chapter 2 of this book. 81  von Bogdandy (n 78) 1310. 82  Jeremy Waldron, Law and Disagreement (OUP 1999). 83  This asymmetry in the context of EU fundamental rights law has been observed in particular by Philip Alston and Joseph HH Weiler, ‘An “Ever Closer Union” in Need of a Human Rights Policy: The European Union and Human Rights’ (1999) Harvard Jean Monnet Working Paper No 1/​1999, 8–​10.

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protection as a complement to the heavy focus on the role of the Court in that respect, this book provides a test case to assess the challenges raised by the development of a fundamental rights policy at EU level.

3. EU equality law as the ‘first’ fundamental rights policy of the EU In developing this fundamental rights policy, the EU institutions have created a new field of EU law. EU equality law is, from a historical perspective, the first area of EU intervention to have been shaped and developed as a fundamental rights policy. There is much to learn for those wondering about the role of a supranational organization in enhancing fundamental rights protection. One could thus expect fruitful interactions with other (emerging) EU fundamental rights policies. There has been much discussion on what constitutes the advantages or disadvantages of the EU developing a general human rights policy. In particular, in the late 1990s, after the entry into force of the Amsterdam Treaty and during the period of reflections on the Charter, policy-​makers,84 as well as prominent authors, expressed divergent views on the matter.85 We will come back to some of the components of this debate in Chapter 2. For now it suffices to stress that although the EU has a stronger constitutional mandate to ensure human rights protection than it had in the past (see, for instance, the mechanism enshrined in Article 7 TEU and the binding nature of the Charter since the Lisbon Treaty), the Treaties do not allow the EU to ‘protect against human rights violations per se’.86 The EU legal order still falls short of providing for a ‘coherent, forceful and forward-​looking human rights policy’.87 Despite the absence of a general human rights policy at EU level,88 several competences allow the EU legislator to intervene for the purpose of enhancing the protection of specific fundamental rights.89 EU secondary law increasingly includes fundamental rights clauses and mechanisms as ancillary or non-​autonomous aspects of a different policy objective.90 Also, in a number of situations, especially in the more recent fields of competence of the EU in the context of the area of freedom, security, and justice, the very purpose of legislation is strongly endowed with a rationale based on the protection of fundamental rights, despite a legal basis which 84  eg Commission (EC), ‘For a Europe of Civic and Social Rights’ (1996) Report by the Comité des Sages chaired by Maria de Lourdes Pintasilgo. 85  See in particular exchanges between Alston and Weiler (n 83); and von Bogdandy (n 78). 86  Toth (n 56) 497. 87  von Bogdandy (n 78) 1310. 88  The Charter has not changed this observation: Lord Goldsmith, ‘The Charter of Rights—​a Brake Not an Accelerator’ (2004) 5 EHRLR 473, to be read in conjunction with Roy W Davis, ‘A Brake? The Union’s New “Bill of Rights” ’ (2005) 5 EHRLR 449. 89  See also Elise Muir, ‘The Court of Justice: A Fundamental Rights Institution among Others’ in Mark Dawson, Elise Muir, and Bruno de Witte (eds), Judicial Activism at the European Court of Justice (Edward Elgar 2013) 76–​101. 90  It is important to stress that examples of this type of measure existed several years ago; eg Council Directive (EEC) 89/​552 of 3 October 1989 on the coordination of certain provisions laid down by law, regulation or administrative action in Member States concerning the pursuit of television broadcasting activities [1989] OJ L298/​23, Article 22. See further Piet Eeckhout, ‘The EU Charter of Fundamental Rights and the Federal Question’ (2002) 39 CML Rev 945, 983.

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contains other policy objectives. These instruments may be distinct from simple forms of fundamental rights mainstreaming. While the latter are merely concerned with asserting the incidental fundamental rights implications of EU acts, the former seek to actually address fundamental rights issues through positive rights and mechanisms. Instruments impacting on fundamental rights protection while achieving another central policy aim are also distinct from EU equality law. EU equality law is exclusively designed to enhance fundamental rights while these other instruments do not—​or at least not explicitly and clearly—​have such protection as their primary purpose. These distinctions between the various fundamental rights implications of different pieces of legislation are not hermetic91 and will not be discussed in further detail in this book. The point being made here is merely that although EU legislative intervention can affect fundamental rights protection to a significant—​if not spectacular (as is the case for instance in the context of EU migration law92)—​extent, the design for such legislative intervention can be distinguished from that of an autonomous fundamental rights policy specifically concerned with achieving a higher degree of protection of the said right.93 The legislator may indeed devote specific attention to ensuring compliance with and a high level of protection of fundamental rights as well as to developing mechanisms designed to enhance the protection of the relevant fundamental right. EU equality law constitutes one branch of EU law by which EU institutions do seek to actively ‘combat discrimination’,94 ‘with a view to putting into effect in the Member States the principle of equal treatment’.95 Such law is geared towards developing concepts and tools to protect and promote the fundamental right to equal treatment. In so far as EU equality law thereby seeks to achieve ‘inter-​personal equality per se’96 and to ‘change democratic societies’ instead of just protecting individuals against threats to the said fundamental right or limiting European intervention that may affect such rights, it can be labelled as a fundamental rights policy.97 91  The author fully acknowledges that certain acts may be difficult to classify in one category instead of another. The categories proposed, however, remain conceptually useful in characterizing the tensions between the EU judiciary and EU political institutions in the various contexts. See also Eeckhout (n 90) 984–​85. 92  Council Directive (EC) 2003/​86 of 22 September 2003 on the right to family reunification [2003] OJ L251/​12 (hereafter ‘Family Reunification Directive’), Preamble, Recital (6) is an instrument of EU migration policy that actually overlaps with the implementation of a given fundamental right. It explicitly seeks, to a certain extent, to ‘protect the family and establish or preserve family life’. 93  On the distinction between positive and negative integration in the field of fundamental rights protection, see Alston and Weiler (n 83) 8–​9 as discussed later; on the possible scope, depth, and impact of EU fundamental rights policies, see Eeckhout (n 90) 990. Note that this is distinct from the ‘offensive/​defensive’ dichotomy used by Coppel and O’Neill (n 12) 669. This dichotomy relates to the use of the fundamental rights discourse primarily by the Court, with very limited insight into the role of political institutions in shaping such a discourse. 94  Article 19 TFEU. 95  eg Council Directive (EC) 2000/​43 implementing the principle of equal treatment between persons irrespective of racial or ethnic origin [2000] OJ L180/​22, Article 1. 96  Scharpf (n 22) 132–​33. 97  Paraphrasing von Bogdandy (n 78) 1308. Note, however, that this policy is not unlimited, as will be discussed in Chapter 3 A.3.b.

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An important feature of such a policy at EU level is that it seeks to address problems that are ‘not . . . intrinsic to a transnational context’ (emphasis in original).98 Unlike most provisions of EU law that have implications for fundamental rights protection, an EU fundamental rights policy does not need to be related to transnational questions. In 1999, Alston and Weiler had already pointed out that EU gender equality law was one of the limited examples where the EU had actually moved from—​what they coin by analogy to the process of market integration as—​‘negative’ to ‘positive’ integration for the purpose of human rights protection.99 The existence of a self-​standing legal basis for equal treatment100 after Amsterdam, as well as the adoption of several directives on the basis of what is now Article 19 TFEU and the modernization of EU gender equality law, make it clear today that EU equality law is the first area where the EU has explicitly engaged in active policy-​making to enhance fundamental rights protection. A few other policies, such as EU data protection law and EU asylum law, could be deemed to constitute fundamental rights policies as defined herein. For instance, Article 78 TFEU on asylum empowers the EU legislator to adopt legislation in order to: . . . develop a common policy on asylum, subsidiary protection and temporary protection with a view to offering appropriate status to any third-​country national requiring international protection and ensuring compliance with the principle of non-​refoulement. This policy must be in accordance with the Geneva Convention of 28 July 1951 and the Protocol of 31 January 1967 relating to the status of refugees, and other relevant treaties.101

On this basis, the so-​called Qualification Directive102 aims at laying down ‘standards for the qualification of third-​country nationals or stateless persons as beneficiaries of international protection, for a uniform status for refugees or for persons eligible for subsidiary protection, and for the content of the protection granted’.103 Yet, neither the wording of the Treaty nor that of the Directive are as clear-​cut as EU equality law is when it comes to asserting its fundamental rights function and its autonomy from other EU substantive policies. EU asylum policy does not appear to result from a reflection on how to promote a specific fundamental right, it is (still) more concerned with ensuring the consistency of EU intervention with the requirement to protect refugees in a transnational context than in actively promoting the right to refugee status.104 Another example is EU data protection law. Although its initial legal basis was to be found in internal market treaty provisions,105 the objectives of the Directive 98  Somek (n 36)  9. Also observing the autonomy of the so-​called ‘Article 13 TEC Directives’, Charilaos Nikolaidis, The Right to Equality in European Human Rights Law: The Quest for Substance in the Jurisprudence of the European Courts (Routledge 2015) 130. 99  Alston and Weiler (n 83) 8–​9. 100  Acting as a complement to Article 157 TFEU. 101  Article 78(1) TFEU. 102  Directive (EU) 2011/​95 on standards for the qualification of third-​country nationals or stateless persons as beneficiaries of international protection, for a uniform status for refugees or for persons eligible for subsidiary protection, and for the content of the protection granted [2011] OJ L337/​9. 103  ibid Article 1. 104  Arguing along similar lines, see Eeckhout (n 90) 985. 105  Then Article 100a of the Treaty Establishing the European Community (TEC).

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on the protection of individuals with regard to the processing of personal data and on the free movement of such data (or the Data Protection Directive)106 combine a fundamental right and an internal market approach. Indeed, Article 1 of the Data Protection Directive states as follows: 1. In accordance with this Directive, Member States shall protect the fundamental rights and freedoms of natural persons, and in particular their right to privacy with respect to the processing of personal data. 2. Member States shall neither restrict nor prohibit the free flow of personal data between Member States for reasons connected with the protection afforded under paragraph 1.107

Furthermore, the Lisbon Treaty inserted a new legal basis for the adoption of legislation on data protection that features in the title on ‘Provisions having General Application’ and is currently being used in the context of a large-​scale reform of EU data protection law.108 Although the tone of the new instrument has a yet stronger fundamental rights dimension than its predecessor,109 the new Article 16 TFEU, on which the reform is based, combines an internal market and a fundamental rights rationale, as can be seen from the reference to the free movement of data. This means its autonomous status at this stage is still unclear. Nevertheless it may be the policy that is the closest to EU equality law in terms of fundamental rights dynamics, and so some comparisons will be drawn and avenues opened up for further research.110 EU equality law thus stands out in terms of the autonomous mandate it is given by the EU Treaties.111 This book explores the constitutional implications of this autonomy. Parallels will be drawn now and then with different fields of EU law that are particularly strongly intertwined with EU equality policy and fundamental rights in general.

D.  Equality Law Breaking New Boundaries as an Autonomous EU Fundamental Rights Policy? Fifteen to twenty years after the adoption and entry into force of the key instruments—​in particular what are now Article 19 TFEU, Article 21 CFEU, and the so-​called ‘Article 19 TFEU Directives’—​one can examine the extent to which 106  Directive (EC) 95/​46 of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data [1995] OJ L281/​31. 107  ibid Article 1. 108  See Regulation (EU) 2016/​679 of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/​ 46/​EC (General Data Protection Regulation) [2016] OJ L119/​1; and Directive (EU) 2016/​680 of 27 April 2016 on the protection of natural persons with regard to the processing of personal data by competent authorities for the purposes of the prevention, investigation, detection or prosecution of criminal offences or the execution of criminal penalties, and on the free movement of such data, and repealing Council Framework Decision 2008/​977/​JHA [2016] OJ L119/​89. 109  As argued for instance by Antonella Galetta and Paul de Hert, ‘The Proceduralisation of Data Protection Remedies under EU Data Protection Law: Towards a More Effective and Data Subject-​ Oriented Remedial System?’ (2015) 8 REALaw 125. 110  See Chapters 4 and 5. 111  Also singling out EU equality law, Eeckhout (n 90) 985.

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EU equality law may be understood as breaking through new boundaries as a fundamental rights policy of the EU. The following questions may be asked: What characterizes the relationship between EU institutions as well as domestic and EU actors on the matter? Can lessons be drawn for the development of specific fundamental rights policies at the EU level?

1. Approach and structure of the book By asserting that EU equality law not only performs a social function but also gives expression to a fundamental right, EU institutions have engaged in developing the ‘first’ fundamental rights policy of the EU: in other words, a policy that is largely understood as independent from the internal market as well as from social policy concerns. To the extent that this field can be understood as autonomous, it can be treated as a laboratory for the development of further fundamental rights policies in the EU. An investigation into the dynamics of this field of law is most instructive in shaping our understanding and approach to further developments of a similar kind at the EU level. Our departure point is the dual observation that EU equality law is highly constitutionalized and that EU equality law has developed innovative tools to support implementation and policy formation at the domestic level. In order to be able to critically examine the high level of constitutionalization of EU equality law, this book starts by examining constitutional questions raised by the transfer of a fundamental rights competence to the EU level (Chapter 2 ‘Checks and Balances in the Process of Fundamental Rights Law-​Making in the EU’). While such constitutional questions have been raised in relation to the creation of a fully fledged EU fundamental rights policy or in relation to other legal orders, the relevant conceptual tools are useful in order to understand and analyse what is happening in the field of EU equality law. Emphasis will be placed here on the importance of allowing for political debate at the EU level on the content of fundamental rights. The book then examines the dynamics of EU equality law. The purpose here is less to provide an exhaustive or textbook overview of the current state of the law in that field than to reflect on challenges created by the fundamental rights status of the underlying rights. In so far as the EU seeks actively to protect the fundamental right to equal treatment through the adoption of specific pieces of legislation, EU institutions reshape the contours as well as the content of EU equality law. The interplay between equality legislation and the fundamental right to equal treatment is thus particularly complex and sensitive (Chapter 3 ‘EU Equality Law at a Constitutional Crossroads’). It will be stressed that EU equality law is at risk of becoming over-​ constitutionalized and being taken out of the realm of political debate, precisely where it should primarily be located. The book subsequently examines the extent to which other areas of EU law may be facing the same risk of over-​constitutionalization (Chapter 4 ‘Distinguishing Legislation giving Expression to Fundamental Rights: Lessons from EU Equality Law’). To that effect, general features of EU equality law are identified that may

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explain its over-​constitutionalization and the extent to which such features can be found elsewhere is considered. It will be argued that isolated equal treatment clauses enshrined in EU employment and migration law should be treated differently from the core of EU equality policy—​and thereby be protected against over-​constitutionalization. It will also be noted that EU data protection law is a field where at least some of the challenges identified in Chapter 3 in relation to EU equality law may reoccur. These earlier chapters having warned against relying too heavily on a constitutional narrative to address the protection of fundamental rights in the EU, the book finally turns to the potential for EU equality law to genuinely make a difference at domestic level. It will be argued that this can be best achieved by using the full potential of the political dimension of EU equality law to establish innovative governance tools (Chapter 5 ‘The Legislative Embedding of the Governance of EU Equality Law’). The main added value of EU intervention may indeed lie precisely in supporting societal change from within through dynamic legal processes stimulated by EU legislative intervention. The final section therefore concludes with a detailed examination of the instruments developed in the context of EU equality law to efficiently enhance equal treatment in the EU and looks at the way they have actually been used since their adoption to stimulate policy formation domestically. Specific attention is devoted to examining the extent to which such tools could be transposed to similar fields of EU law, as well as the extent to which EU equality law may benefit from comparisons with developing fundamental rights legislation, for example with the legislation in the context of data protection.

2. Relationship to existing literature on EU equality law EU equality law has been explored in several important academic publications. One category of these publications examines EU equality law as a branch of equality law and a specific expression of the principle of equal treatment. It investigates the potential of EU equality law to (genuinely) transform European societies in a way that will ensure access to and the use of social goods as well as the ability of all members of society to participate in political life on an equal basis. A good illustration of this category is the work of Fredman.112 A subcategory of the former devotes particular attention to how the EU legal order is or could be used to advance an ‘equality agenda’. This is notable and clear through the works of Waddington and Bell,113 and can also be seen in de Búrca’s reflections on the hybrid model of EU anti-​discrimination law.114

112  eg Sandra Fredman, Human Rights Transformed: Positive Rights and Positive Duties (OUP 2008) in particular 53–​58 and 159–​66. 113  eg Mark Bell, Racism and Equality in the European Union (OUP 2008); Lisa Waddington, ‘Future Prospects for EU Equality Law: Lessons to be Learnt from the Proposed Equal Treatment Directive’ (2011) 36 EL Rev 163. 114  eg Gráinne de Búrca, ‘EU Race Discrimination Law: A Hybrid Model’ in Gráinne de Búrca and Joanne Scott (eds), Law and New Governance in the EU and the US (Hart Publishing 2006) 97–​120.

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Another category of these publications examines EU equality law from an alternative perspective to that of ‘equality’ per se. For these academics, EU equality law serves as a case study to consider broader legal and political developments. Some authors investigate the limits of the principle of equality in addressing broad societal imbalances. For Somek, equality policy lacks substantive norms and thus is an insufficient social tool.115 Heavy reliance on this mechanism at the EU level threatens to deprive domestic redistribution policies of their content. Several other academics have been interested in how EU equality law-​making illustrates the institutional dynamics of the process of European integration. Stone Sweet demonstrates this approach,116 which emphasizes the proactive role of the Court in the building of an EU equality policy. The present book belongs to the second category of literature to the extent that it does not examine EU equality law as a branch of equality law. However, it does not look at the contribution of EU equality law to a normative model of social redistribution or examine it solely from an institutional perspective. Instead, the dynamics of EU equality law are considered as a test case for the development of fully fledged or autonomous fundamental rights policies at EU level. The book provides an integrated analysis of equality law, as tackled by EU institutions and the EU toolbox, in order to give flesh to a self-​standing (ie detached from internal market concerns) fundamental rights policy. It critically analyses EU equality law as the first117—​and in several ways most accomplished118—​fundamental rights policy of the EU and seeks to draw lessons for other emerging EU fundamental rights policies. The examination of an EU fundamental rights policy can fall into a third category of literature on the ‘social model of European citizenship’.119 This model emerged in the 1990s. It supports the view that a stronger set of EU social rights would enhance European integration by putting flesh on the bones of the concept of European citizenship.120 In the early 2000s, Bell, in particular, provided useful reflections on the extent to which EU anti-​discrimination law indeed contributes to such a model by contrast to the ‘market integration model’, on which the process of European integration is largely based.121 Although reference will be made to the ‘social model of European citizenship’ or related concepts that indeed shed light on the dynamics of EU equality law from the 1990s onwards, this book does not seek to further tie EU equality law to this model for a number of reasons.122 115 Somek (n 36); in reaction to these views, see also Colm O’Cinneide, ‘Completing the Picture: The Complex Relationship between EU Anti-​Discrimination Law and “Social Europe” ’ in Nicola Countouris and Mark Freedland, Resocialising Europe in a Time of Crisis (CUP 2013) 118–​37. 116  Alec Stone Sweet and Rachel Cichowski, ‘Sex Equality’ in Alec Stone Sweet (ed), The Judicial Construction of Europe (OUP 2004) Ch 4. 117  This is understood from a historical perspective. 118 This is the case pending developments on the right to private life and the protection of personal data. 119  Commission (EC), ‘For a Europe of Civic and Social Rights’ (n 84) 25, 33; see also Bell (n 50) 12. 120  eg Commission (EC), ‘For a Europe of Civic and Social Rights’ (n 84) 25–​26; see also Siofra O’Leary, ‘The Relationship between Community Citizenship and the protection of Fundamental Rights in Community Law’ (1995) 32 CML Rev 519. 121  Bell (n 50). 122  The reasons listed below build on nuances introduced by Mark Bell at the end of his book in 2002: Bell (n 50) 194–​95 and also 205. While he suggested bridging the gap between the market

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As made clear in the introduction, and as will be elaborated upon in this book, the way EU equality law has developed over the past fifteen years has significantly (although admittedly not entirely) departed from its origins in both EU internal market and EU social policies.123 This field of law is developing along related but distinct lines. In fact, it may be precisely because anti-​discrimination is not a traditional social policy tool that its rapid development at EU level has been possible.124 Second, the development of EU equality law, as it was shaped in the post-​Amsterdam era, has actually been made with little reference to the concept of citizenship outside academic circles. In contrast, there has been heavy reliance on the fundamental rights discourse. Third, EU equality law largely applies to EU and non-​EU citizens alike, thus making it difficult to assimilate its development with that of EU citizenship.

3. Equality and non-​discrimination in EU law Before launching into a substantive analysis, it is important to clarify at the outset that specialists in this field often distinguish between equality and non-​ discrimination—​with discrimination being a symptom, and equality a more ambitious aim.125 From this point of view, eliminating discrimination (or formal inequalities) does not necessarily allow the elimination of deeply enshrined inequalities (hence a substantive understanding of equality). Pursuing equality thus requires going beyond the elimination of discrimination126—​which focuses on a negative understanding of equality127—​and may even at times legitimize certain forms of discrimination. In the quest for a substantive understanding of equality, Nikolaidis defines equality as covering both the ‘need for freedom from arbitrary or irrational treatment’ and a human right to equality that ‘should be understood as aiming . . . to uphold the basic capabilities that are necessary for the maintenance of equal opportunity; thus the individual should be free from social oppression in the form of prejudice, stereotyping and failures to accommodate difference’.128 Yet, EU institutions and the Court itself do not make a clear distinction129 between equality and non-​discrimination. EU law thus uses both expressions alternately. As this book is less an essay on equality law than an enquiry into the way a supranational organization such as the EU develops a fundamental rights policy, it will also treat these expressions as equivalent.

integration and social citizenship model by reference to the market participation model (196–​97), I address it in more simple terms by reference to fundamental rights (detached from social policy as such). 123  See Chapter 3, section A.3.b. 124  Relying on this point to highlight the shortcomings of EU anti-​discrimination policy, see Somek (n 36). 125  eg Alexander Somek, ‘A Constitution for Antidiscrimination: Exploring the Vanguard Moment of Community Law’ (1999) 5 ELJ 243, 243; Aileen McColgan, Discrimination, Equality and the Law (Hart Publishing 2014) 14–​37. 126  eg Koukoulis-​Spiliotpoulos (n 12) 335. 127  Nikolaidis (n 98) 29. 128  ibid 9. 129  See also Tridimas (n 12) 64.

2

2 Checks and Balances in the Process of Fundamental Rights Law-​Making in the EU EU equality law is an EU policy characterized by the coexistence of three types of norms: (i) written law which has constitutional value (the Charter of Fundamental Rights of the European Union or CFEU and treaty rights); (ii) unwritten law with constitutional value (general principles); and (iii) written secondary law (legislation). The existence of principles as well as rights enshrined in constitutional law distinguishes this policy from numerous other policies that depend entirely on the existence of EU legislation.1 Meanwhile, the existence of rights entrenched in specifically related legislation also distinguishes this fundamental right (the fundamental right to equal treatment) from many other fundamental rights only protected in EU law at the constitutional level or incidentally through ad hoc provisions isolated in legislation.2 This area of law therefore includes a broad set of norms that range from ‘principles’ to ‘rights’. While a principle constitutes the ‘medium through which moral values infiltrate a legal system’,3 the language of ‘rights’, which is very much present in the field of EU equality law, allows the stating of general premises of law as well as the expression of a particular conclusion of the law.4 It contributes to putting the principle into practice. An enquiry into ‘the nature and character of the legal rules which concern the conferment of legal rights’5 under EU law will shed light on the specificities of the rights thereby protected and thus set the stage for an enquiry into the specificities of EU equality law. To that effect, this chapter elucidates and reflects on the general characteristics of the rules that constitute EU fundamental rights law. The existence of a multilayered set of legal norms for the design of a system of fundamental rights protection triggers important questions on what the appropriate institutional framework for fundamental rights protection in an integrated supranational legal order may be. The challenge originates in the novelty of the phenomenon by which political institutions adopt legislation giving expression 1  Such as consumer protection policy (Article 169 TFEU) or public health policy (Article 168 TFEU). 2  See also Chapter 1, section C. 3  Charilaos Nikolaidis, The Right to Equality in European Human Rights Law: The Quest for Substance in the Jurisprudence of the European Courts (Routledge 2015) 14. 4  Donald Neil MacCormick, ‘Rights in Legislation’ in PMS Hacker and Joseph Raz (eds), Law, Morality and Society: Essays in Honour of H.L.A. Hart (Clarendon Press 1977) 191. 5  ibid 191. EU Equality Law: The First Fundamental Rights Policy of the EU. Elise Muir © Elise Muir 2018. Published 2018 by Oxford University Press.

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to a fundamental right in the EU. It was primarily triggered by Article 19 of the Treaty on the Functioning of the European Union (TFEU or ‘the Treaty’) and taken one step further with Article 16 TFEU, inserted in the EU Treaties respectively by the Treaties of Amsterdam and Lisbon. While Article 19 TFEU relates to anti-​ discrimination and was promptly used to enable the adoption of anti-​discrimination legislation, Article 16 TFEU relates to data protection and has recently been relied upon in the context of a broad reform of EU data protection law.6 The phenomenon by which EU institutions can and do legislate specifically and explicitly in order to enhance the protection of a fundamental right is therefore fairly recent. This opens up a new era after a period in which the focus had been on elevating fundamental rights beyond the realm of ordinary politics (see section A). The constitutional implications of this new setting emerge from the tension thereby created between political institutions and constitutional adjudication (see section B). These questions are particularly intense in the context of the EU legal order where the interplay between domestic and European legal orders adds to the complexity of the matter (see section C). Each of these aspects will be examined in turn. It will be emphasized that the ability of a supranational organization such as the EU to legislate in order to enhance the protection against discrimination is unique in its technical complexity as well as in the multitude of legitimacy questions that it raises.

A.  Legislating on Fundamental Rights within a Supranational Legal Order Before investigating the tensions among EU institutions as well as between domestic and EU legal orders on matters of fundamental rights protection, it is important to understand the role that legislation plays in shaping systems of fundamental rights protection in European legal orders. Is it common to enhance fundamental rights protection through legislative tools? How does such a trend fit in the broader context of the evolution of fundamental rights protection at the international level and how do these observations apply to the EU?

1. Three stages in the regulation of (fundamental) rights If one looks at contemporary history, three generations of mechanisms of individual rights protection at domestic and international level may be distinguished. First, political and social rights were treated as ordinary rights, the protection of which was entrusted to the state through ordinary laws. Second, selected rights were constitutionalized and internationalized: ‘uploaded’ to higher legal spheres for protection from the dangers of ordinary politics. Third, legislation is being adopted in order to give expression to some of these fundamental rights, thus downloading them and bringing them back into the political sphere. These stages will now be briefly 6  See also Chapter 1, section C.3.

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introduced while highlighting their link with the development of fundamental rights protection at the EU level.

(a) The protection of civil and social rights through ‘ordinary’ laws in Europe The perceived need to protect selected—​particularly important—​rights of man has existed for a long time. The notion of ‘rights of man’ is often said to date back to the Enlightenment but can in fact be traced back to Plato and Deuteronomy’s idea of justice.7 Yet, in terms of their practical implications, these early expressions of unique rights of man were profoundly distinct from today’s understanding of human rights: they could be understood as distinct conceptual tools.8 In any case, they should certainly be understood as entirely distinct legal tools. It is therefore often said that human rights defined in terms of the right to invoke individual protection against the state emerged in the 1970s ‘seemingly from nowhere’.9 It is only in the second half of the twentieth century that human rights developed as a ‘political and legal vocabulary for confronting abuses of disciplinary state power’10 as they are largely understood today. The phenomenon is thus relatively recent. Hoffmann recalls that in the period between the eighteenth-​century revolutions and the twentieth-​century world wars, it was the struggle for political and social rights that took centre stage in constitutions and politics.11 In this context the state was seen as a guarantor of rights, rights which were regulated through laws.12 This period of legal positivism marks the assertion of state laws giving expression to the sovereignty of citizens. What was at issue in that period was no longer the structure of the state as such but the balance of powers within society.13 The political focus within European societies was on the rights of workers and illustrated a politicization of social matters resulting in the adoption of new bodies of law such as labour law.14

(b) ‘Uploading’ fundamental rights protection to the EU level In the mid-​twentieth century, the mass violations that occurred during the Second World War triggered a call to entrench the protection of fundamental values in legal norms beyond the reach of ‘ordinary’ politics.15 This resulted in simultaneous processes of constitutionalization and internationalization of selected rights. As Garbaum puts it, the process of constitutionalization in particular has been characterized by three sets of developments: (i) it was placed in the hands of a constituent 7  Samuel Moyn, The Last Utopia: Human Rights in History (Harvard University Press 2012) 5. 8  ibid  1–​2. 9  ibid 3. 10  Stefan-​Ludwig Hoffmann, ‘Genealogies of Human Rights’ in Stefan-​Ludwig Hoffmann (ed), Human Rights in the Twentieth Century (CUP 2010) 2. 11  ibid 7. 12  ibid 9. 13  Jürgen Habermas, ‘La souveraineté populaire comme procédure. Un concept normatif d’espace public’ (1989) 3 Lignes 29, 39–​40. 14 Meanwhile, citizenship remained fairly exclusive, with women and subjects in colonies not being accounted for. Abolitionism was less concerned with human rights than with evangelicalism: Hoffmann (n 10) 8. 15  Alexander Somek, The Cosmopolitan Constitution (OUP 2014) 73–​74.

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power; (ii) it resulted in enshrining norms in higher ranking legal tools; and (iii) it thereby ensured entrenchment against ordinary methods of amendment.16 These trends have been uniquely reflected in the development of the EU. In fact, the EU could be said to constitute a ‘paradigm of a constitutionalized regime of international law’.17 In that sense EU law combines internationalization and constitutionalization. Internationalization naturally flows from the supranational nature of the structure of the EU legal order. ‘Constitutionalization’, defined by the three benchmarks identified by Garbaum, is twofold. First, within EU norms, EU primary law, the Charter of Fundamental Rights, and general principles of EU law constitute a remarkably broad and extensive set of constitutional norms placed above secondary EU law. Second, from the perspective of domestic legal orders, the whole body of EU law (including, for instance, directives) takes primacy over domestic law and may only be amended subject to mechanisms which are largely exogenous to the national political system and are fairly arduous to activate. As a consequence, the very transfer of competences to the EU level and exercise thereof could be said to amount to a form of constitutionalization process. Although the EU has not been designed as an organization with human rights as its core policy,18 the European integration process has resulted in the ‘upgrading’ of human rights protection beyond domestic legal spheres through two complementary processes. On the one hand, this uploading of human rights protection flows from the increasingly broad ability of the EU judiciary to ensure compliance with human rights by Member States when they act within the scope of EU law. On the other hand, EU political institutions can and do often adopt legislation setting fundamental rights standards that also prevail over domestic legal orders (although such legislation may be shaped so as to allow Member States a margin of manoeuvre in setting their own standards). From the perspective of each of the Member States, it is therefore fair to state that a significant chunk of fundamental rights protection is removed from the ambit of ordinary domestic policy and law-​making owing to the powerful process of European integration.19

(c) ‘Downloading’ fundamental rights protection at the EU level: legislating to give expression to a fundamental right The mechanisms of fundamental rights protection have now entered a third stage. It would be beyond the scope of this book to seek to identify when this third stage 16  Stephan Gardbaum, ‘Human Rights as International Constitutional Rights’ (2008) 19 EJIL 749, 753–​54. 17  ibid 759. 18  See Chapter 1. In the broader European context, the constitutionalization and internationalization of human rights protection also results from the activities of the Council of Europe to which we will shortly return. 19  This is not to say that Member States’ interests are inevitably neglected. It is well established that the fundamental rights protection provided in the general principles of EU law and Charter of Fundamental Rights is strongly inspired by domestic constitutional traditions. Furthermore, the adoption of EU legislation having fundamental rights implications is the outcome of decision-​making processes ensuring representation of Member State interests.

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started at the national level.20 At the EU level, though, this third stage began over a decade ago when legislation began to be adopted in order to give expression to select fundamental rights. Political institutions thus made a conscious choice to give shape to a fundamental right.21 As pointed out by Triantafyllou, rarely does a text with a constitutional function exhaustively regulate the exercise of the fundamental rights. Instead, such texts refer to powers and institutions constituted by it.22 When such powers are exercised, however, legislative intervention provides rights with content, as is particularly clear in the context of fundamental rights legislation.23 The adoption of such legislation is closely related to the uploading process described earlier (in section A.1.b) in so far as legislation is adopted in order to flesh out rights that have been uploaded in a process of internationalization and constitutionalization. In that sense, the process of legislating on select fundamental rights could be described as a complementary ‘downloading’ process, bringing a protected right back into the political arena. The interplay between the two processes is important in so far as political institutions act in full awareness of the link between the legislation and the fundamental right. The relationship between the two layers of the same right is likely to be particularly ambiguous. The setting is thus different from where rights enshrined in legislation simply overlap with rights or principles protected at constitutional level, as is often the case.24 In the latter case fundamental rights protected at constitutional level perform a classic function, acting as benchmarks for review and providing interpretative guidance. Perhaps because it is so recent, this latest—​downward—​trend has been significantly less explored than the earlier stages in the development of tools for the protection of human rights. The reasons for complementing fundamental rights protection with a layer of specific legislation may be multifaceted. It could be that we have reached a more mature stage in the way we think about fundamental rights, with a new understanding that they require the adoption of policy tools to give flesh to such rights and ensure their greater enforceability. We will come back to this reading of fundamental rights as requiring positive intervention for their realization.25 In the context of the EU legal order, and as will be discussed, an additional factor in favour of the adoption of fundamental rights legislation may have been an attempt to enhance the legitimacy of the EU by addressing societal matters through EU politics. What are the implications of this downloading process?

20  See, for instance, in the German context, Robert Alexy, A Theory of Constitutional Rights (OUP 2002) 290–​93; Alexander Somek (n 15) 100 et seq. 21  See Chapter 1, section C. 22 Dimitris Triantafyllou, ‘The European Charter of Fundamental Rights and the “Rule of Law”: Restricting Fundamental Rights by Reference’ (2002) 39 CML Rev 53, 54. 23  ibid 54. 24  See further Chapter 4. 25  See section B.1.b.

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2. Implications of the ‘downloading’ of fundamental rights protection within the EU legal order The adoption of fundamental rights legislation performs three key functions. Legislation defines the scope of political intervention intended to protect selected aspects of a given fundamental right. Legislation clarifies the content of the right and may provide for specific institutional structures so as to make it effective. Legislation may also impact on the function that fundamental rights perform in a given legal order. All three aspects are of particular significance in the EU.

(a) Legislation defines the scope of EU political intervention In clarifying the scope of a given right, legislation defines the scope of political intervention. Certain aspects of a fundamental right will thereby be protected by reference to political guidance while others will remain in the exclusive realm of judicial protection. In the context of the EU, this political intervention further defines the contours of supranational intervention. This is particularly clear when the Treaty does not grant directly effective rights and instead enables the EU legislature to develop binding legislation. In that case, the exercise by the EU legislature of its competence shapes the contours of EU law and restrains the margin of manoeuvre of individual Member States. Indeed, as fundamental rights competences are shared between the EU and the Member States, Member States may not contravene existing EU instruments. In contrast, whatever is not governed by EU intervention is left to the competence of the Member States.26 This specific point has been particularly sensitive in the context of EU equality law, as the broadest legal basis for the adoption of EU anti-​discrimination legislation states that EU institutions shall act ‘within the limits of the powers conferred by the [Treaties] upon the Union’ (Article 19(1) TFEU). The same cross-​reference to the limited scope of EU competences has been incorporated in the definition of the scope of the directives adopted on the basis of Article 19(1) TFEU: ‘Within the limits of the powers conferred upon the Community, this Directive shall apply to . . .’.27 This wording could suggest that the fields covered by EU anti-​discrimination legislation may not exceed the areas of EU competences defined in the EU Treaties. As will be explained in greater detail later in this book,28 EU institutions—​including the Court of Justice of the European Union (‘the Court’)—​have so far largely ignored these possible restrictions on the scope of EU anti-​discrimination legislation.29 As a consequence, it can be asserted that EU equal treatment legislation indeed autonomously defines its scope of application as well as that of EU intervention on the matter. 26  Article 2(2) TFEU. 27  Council Directive (EC) 2000/​43 of 29 June 2000 implementing the principle of equal treatment between persons irrespective of racial or ethnic origin [2000] OJ L180/​22, Article 3(1). 28  See Chapter 3, section A.3.b. 29  See, however, eg CHEZ Razpredelenie Bulgaria AD v Komisia za zashtita ot diskriminatsia [2015] ECLI:EU:C:2015:480, para 44.

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(b) Legislation impacts on the tools available for the protection of fundamental rights Naturally, legislation also defines the content of rights and may provide for procedures to give them effect. Greater visibility is thereby given to selected rights so as to enhance their political relevance and justiciability. Meanwhile, political institutions may engage in a deeper reflection on how to actually improve the protection of such rights through the creation of negative or positive obligations on a plurality of actors as well as the introduction of institutional structures designed to catalyse societal change. Both substantive and procedural aspects of legislation are determinant in ensuring (or failing to ensure) adequate penetration by an exogenous norm in domestic legal orders in the context of multilayered legal orders such as the EU.30 Although legislation makes fundamental rights more prominent, the existence of fundamental rights legislation also creates ambiguities. That prominence may come at the expense of clarity to the extent that the coexistence of several sources—​such as Treaty provisions, general principles of EU law, articles of the CFEU, and of a directive—​may create confusion. To add to that confusion, the provisions contained in each of these instruments may indeed have different scopes of application, content, and instructions for their use. Once again, equality law provides useful examples. The general principle of equal treatment and Article 21 CFEU prohibit discrimination but do not distinguish between direct and indirect discrimination, while the equal treatment directives prohibit both direct and indirect discrimination, in most settings with very narrow justifications of direct discrimination. Similarly for procedural rules, the partial shift in the burden of proof first enshrined in EU legislation by the Burden of Proof Directive,31 which built on earlier case law of the Court32 and which applies to most EU sex equality law and the Article 19 TFEU Directives, does not in principle apply to equal treatment claims based on the general principle of equal treatment or Article 21 CFEU.

(c) Legislation crystallizes a mutation in the function performed by fundamental rights Legislation has further conceptual as well as practical impacts. It can affect the function that selected fundamental rights perform in a given legal order. Legislation may indeed embody the mutation of the right from an instrument protecting individuals against state arbitrariness to a tool regulating interpersonal relationships. This observation relates to a general trend in the contemporary narrative on

30  This is further explored in Chapter 5. 31  Council Directive (EC) 97/​80 of 15 December 1997 on the burden of proof in cases of discrimination based on sex [1998] OJ L14/​6. 32  Handels-​og Kontorfunktionærernes Danfoss Forbund I  Danmark v Dansk Arbejdsgiverforening, acting on behalf of Danfoss [1989] ECLI:EU:C:1989:383; Dr Pamela Mary Enderby v Frenchay Health Authority and Secretary of State for Health [1993] ECLI:EU:C:1993:859.

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fundamental rights: the horizontal effects of such rights33 are understood as prerequisites for the realization of an authentic deliberative democracy.34 Fundamental rights legislation can indeed make it clear that a given fundamental right applies in the private sphere. This is particularly important in legal systems where constitutional rights have no horizontal effects, as this crystallizes the private law function of what is traditionally understood to be a public law concept. In the context of EU equality law, the Article 19 TFEU Directives have indeed operationalized such a mutation by giving expression to the general principle of equal treatment through the prohibition of discrimination in a wide range of settings covering both public and private sectors.35 This conceptual shift in the function performed by a right has important practical consequences in so far as it may be necessary to choose carefully from among several legal instruments the one that enables the claimant to make a claim of a vertical or horizontal nature. Perhaps paradoxically, in EU law, the legal instruments that are most commonly used to give flesh to the prohibition of discrimination—​meaning the anti-​discrimination directives—​cannot per se be invoked in interpersonal disputes. Nevertheless, the Court has developed a creative approach to the applicability of EU instruments concerned with the right to equal treatment in interpersonal disputes, as will be examined further.36

3. The downloading of fundamental rights protection within EU law is only partial The downloading of fundamental rights protection from EU primary law into EU secondary law is thus a recent phenomenon in EU law. This process follows one of intense constitutionalization and internationalization of the fundamental rights discourse in Europe: political institutions are entrusted to shape the scope, content, institutional framework, and function of the fundamental rights at hand. Importantly though, in the EU context, this ‘downloading’ process is only partial. It remains contained within the upper layer of EU norms: a right enshrined in EU primary law becomes the object of EU secondary law, taking primacy over domestic law in its entirety and thus remaining largely removed from the ambit of ordinary domestic policy and law-​making. This partial downloading of fundamental rights protection warrants an enquiry into the constitutional system of checks and balances designed for the elaboration of fundamental rights norms in a complex multilayered legal order such as that of the EU. The next section investigates inter-​institutional tensions arising within a single legal order.

33  Kai Möller, ‘The Global Model of Constitutional Rights: Introduction’ (2013) LSE Law, Society and Economy Working Papers No 4/​2013, 2. 34  Martin Laughlin, ‘Rights, Democracy and Law’ in Tom Campbell, Keith D Ewing, and Adam Tomkins (eds), Sceptical Essays on Human Rights (OUP 2001) 45. 35  eg Council Directive (EC) 2000/​43 (n 27) Article 3(1). 36  See Chapter 3.

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B.  Debating Systems of Fundamental Rights Protection within a Single Legal Order: Inter-​Institutional Tensions We ought at this stage to set out the main parameters of the debate on the respective role of the constitution and legislation as well as constituent powers, courts, and legislature in shaping fundamental rights at domestic (see section B.1) and EU (see section B.2) levels before highlighting the specific relevance of these debates on EU equality law (see section B.3). Whether flexibility and adaptability in the understanding of fundamental rights is desirable underpins uncertainties on the choice of appropriate forms of protection as well as the determination of the institutions in charge. In brief, the debate opposes, on one side, proponents of constitutional forms of protection in the hands of constituent powers and constitutional adjudication and, on the other side, proponents of a more open and regular political debate on fundamental rights placed in the hands of ordinary political institutions and leading to the adoption of legislation.

1. The interplay between constitution and legislation giving expression to fundamental rights in domestic legal orders There are two main ways of examining the relationship between constitutional forms of protection of fundamental rights and legislative intervention elaborating on fundamental rights. Both usefully contribute to identifying conceptual tools to grapple with EU intervention in this field. The tension between constitutional and legislative law-​making is traditionally examined in the context of the debate on judicial review of legislation for compliance with constitutional norms. In this context, the two layers of norms—​constitutional and legislative—​are clearly distinguished and the academic debate revolves around which layer is the most appropriate one to regulate fundamental rights protection (see section B.1.a). Meanwhile, there is also a broader reflection on the changing role of constitutions and fundamental rights protected therein. Political institutions are increasingly often expected to set the conditions for the realization of fundamental rights set out in constitutions. This approach also presupposes the coexistence of two layers of norms—​constitutional and legislative—​but it acknowledges the existence of a particularly complex relationship between them (see section B.1.b). In order to feed into a critical reflection of the high level of constitutionalization of EU equality law, we will emphasize how and why in each of these two approaches much importance is placed on the role of political institutions in shaping fundamental rights through legislative intervention.

(a) The debate on judicial review: rights as limits versus outcomes of political processes As pointed out already, in the aftermath of the Second World War, much emphasis was placed on creating a set of particularly important rights beyond the reach of

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daily politics and politicians. This ‘upgrading’ of selected rights was—​and still is—​ intended to ensure protection of core values against populist assaults in times of elections or political crisis. The concern for greater fundamental rights protection resulted in a dual process of constitutionalization and internationalization of the protection of so-​called ‘human’ or ‘fundamental’ rights that was described earlier as an ‘uploading process’.37 In this rights-​based conception, ‘law provides the frame within which politics is conducted’38 and fundamental rights are understood as necessary to frame political life.39 Yet, the reason why evolution in the phraseology or interpretation of fundamental rights may be important is that it is at times necessary to adjust our understanding of how best to address important societal questions. Whether to allow homosexual marriage, abortion, positive action, or surrogacy, for instance, are highly debated questions in healthy democratic societies. The answers to these questions may be evolving, as illustrated by the shifts in approaches to homosexual marriage in several Member States of the EU in the past few years.40 The different layers of norms protecting the fundamental right at stake ought to be flexible enough to reflect such changes within constituencies. The proponents of politicization of the fundamental rights discourse argue that such adaptability should result from ‘ordinary’ political processes. In such a liberal democratic model, ‘law manifests itself as the outcome of a political process’ instead of constraining it, as in the rights-​based model.41 In the context of a critique of judicial review of legislation giving preference to reliance on constitutional norms, a powerful argument is made by Waldron in favour of the definition of fundamental rights protection through legislation—​which is to be contrasted here to constitutional forms of protection. He explains that the gain of constitutional protection, ‘in terms of an immunity against wrongful legislative abrogation, is more than offset by the loss of our ability to evolve a free and flexible discourse of politics’.42 This is in particular because: ‘The circumstances under which people make judgments about issues like affirmative action . . . the proper extent of welfare provision, and the role of personal desert in economic justice are exactly those circumstances in which we would expect . . . that reasonable people would differ.’43 It must therefore be accepted that people disagree (in good faith) about the common good and in particular about issues of rights. As a consequence, Waldron insists that this prospect of disagreement must be put ‘in the core, not at the periphery’ of one’s understanding of the important role of legislation in shaping fundamental rights.44

37  ie upgrading the legal status of selected rights in a selected legal order. 38  Laughlin (n 34) 56. 39  This may also be referred to as ‘the liberal view’, eg Leonard FM Besselink, ‘Entrapped by the Maximum Standard: On Fundamental Rights, Pluralism and Subsidiarity in the European Union’ (1998) 35 CML Rev 629, 642. 40  eg Spain, Ireland, France. 41  Laughlin (n 34) 56. This may also be referred to as ‘the republican view’, eg Besselink (n 39) 642. 42  Jeremy Waldron, Law and Disagreement (OUP 1999) 221. 43  ibid 112. 44  ibid 93.

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The counter-​argument to Waldron’s claim is that, as Kumm puts it, ‘democracy without judicial review is deficient’.45 The point made in response to Waldron’s call to centre fundamental rights law on ordinary political processes is that judicial review is necessary to make sure that the interests of those excluded from the majority-​ based decision-​making process are protected. Constitutional justice in that sense is not expected to know about theories of justice or policy but to know the questions to ask others.46 Another way of looking at the purpose of judicial review is therefore to understand it as institutionalizing ‘a right to justification’.47 Applying Ely’s thoughts48 to the EU context and reconciling the two lines of arguments above, Dawson stresses that procedural criteria can act as ‘normative benchmarks’ to adjust the degree of judicial review.49 When judicial systems at both national and EU level and the democratic process are functioning normally, judicial deference is justified; in the alternative, though, the judiciary shall step in. The political process is thus placed in a central position in the reflection on fundamental rights law-​making. This debate on how best to articulate the relationship between legislative and constitutional forms of fundamental rights protection—​although largely tailored to the distinct context of the debate on the adoption of a Bill of Rights in the UK as well as of the debate on the role of the US Supreme Court—​is useful to shed light on the underpinnings of the current process of fundamental rights law and policy-​ making in the EU. There is increasing complexity in the interplay between written law with constitutional value, unwritten law with constitutional value, and written secondary law. It is well established that written primary laws—​such as Treaty provisions and the Charter of Fundamental Rights in the context of EU law—​(and, importantly, the interpretation thereof ) can be changed only in very limited circumstances.50 General principles—​as unwritten law with constitutional value—​because they are softly textured, offer more flexibility which is placed in the hands of the judiciary. But where phraseology may actually evolve with the most ease is in legislation which is in the hands of political institutions.51 EU equality law illustrates the tensions between these various sources particularly well. The different layers and types of sources at times complement (as evidenced in the burden of proof directive or legislative efforts to define direct/​indirect discrimination, which are responses to the Court case law) or compete with each other (cases such as Test-​Achats, but also Mangold and Kücükdeveci, as will also be subsequently examined).52 The debate on judicial review, though, is not enough to disentangle this complex web of norms. Such a discussion may be understood as being only the visible part of a broader and deeper reflection. As Somek puts it, ‘debates about judicial self-​restraint necessarily blend into debates over the right judicial methodology’.53 Views on the interpretation and application of the constitution depend on views on 45  Mattias Kumm, ‘Rights, Balancing and Proportionality’ (2010) Law and Ethics of Human Rights 140, 143. 46  Paraphrasing: ibid 140, 153. 47  ibid 140, 143. 48  John Hart Ely, Democracy and Distrust: A Theory of Judicial Review (Harvard University Press 1980). 49  Mark Dawson, The Governance of EU Fundamental Rights (CUP 2017) 35. 50  Treaty amendment or (explicit/​implicit) changes of approach at the Court level. 51  Waldron (n 42) 220–​21. 52  See Chapter 3. 53  Somek (n 15) 64.

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why the authority of the constitution requires the use of certain methods of judicial exposition, as we shall now see.

(b) The positive dimension of fundamental rights: legislative intervention is warranted to ensure their realization The relationship between constitutional norms and legislative guidance fleshing out a fundamental right may also be explored in the context of a broader debate on the role performed by constitutional law and the protection of fundamental rights therein. The process of ‘downloading’ fundamental rights protection described in an earlier section is indeed related to a mutation in the function of constitutions. Constitutions are no longer understood as creating the circumstances for the exercise of public powers only; this is deemed necessary but insufficient. Instead, constitutions are increasingly perceived as calling for positive intervention by the state to ensure the realization of fundamental rights, for instance, through legislation. This transformation of the role of constitutional law is particularly well captured by Somek’s reflections on what he calls ‘Constitutionalism 2.0’.54 In his view, constitutions should now be understood as calling for public authorities to redress private asymmetries of power or violations of rights by private actors. Such a call results in the adoption of legislation specifically designed to give flesh to a fundamental right. This mutation is also connected to the debate on positive obligations as well as on the horizontal effects of fundamental rights.55 Both mechanisms complement the negative, defensive, and vertical use of constitutional norms by allowing them to radiate further in society. Duties are thereby created for public and private authorities to give effect to the fundamental right.56 Such an approach is more comprehensive than the debate on judicial review as it explains the emergence of special forms of legislation. It also offers a less polarized vision of the role of fundamental rights as either framing political life in the form of constitutional norms or constituting the outcome of political processes, as explored in section B.1.a.57 If constitutional norms themselves include both a negative and a positive dimension, then constitutional rights ought to coexist with political activity in an intimate and complex way.58 As Somek puts it, the central question in terms of the relationship between constitution and legislation in this context is:59 . . . how the elaboration of fundamental rights by the ordinary legislature—​i.e. ‘sovereign power’ determining the significance of rights—​could ever be controlled by a court that does not seem to avail itself of a fixed basis in order to determine and enforce the controlling standards.

54  ibid Ch 2. 55  ibid 103 and 109; Kai Möller, The Global Model of Constitutional Rights (OUP 2012) 36 and 40. See also Chapter 2 where horizontal effect is discussed further. 56 Mattias Kumm, ‘Constitutional Rights as Principles:  On the Structure and Domain of Constitutional Justice. A Review Essay on A Theory of Constitutional Rights’ (2004) 2 International Journal of Constitutional Law 574, 584. 57  ibid 574. 58  ibid 574, 587. 59  Somek (n 15) 84.

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When a fundamental right is given effect through positive intervention, the legislature must be afforded some discretion in delimiting individual spheres of freedom, structuring the legal system, and relevant parts of social life.60 Indeed, the positive dimension of fundamental rights is multifaceted: there are many ways of contributing to the realization of a fundamental right through positive intervention. The constitutional principle of equal treatment, for instance, includes alongside its negative dimension (such as a prohibition preventing X from doing something because X is a woman) a positive prong (such as a duty to grant the same benefit to X and Y),61 and there are several practical avenues to remedy a breach of the abstract right to equality. One could decide to extend the granting of a given benefit to all those entitled to equal treatment; but one could also decide to end the benefit completely or to alter its content. As we shall see in Chapter 5, the positive dimension of fundamental rights may furthermore lead to developing infrastructure intended to support change at the domestic level in order to make a fundamental right more effective. In other words, while examining legislation with an apparent interconnection with fundamental rights, one should first check: is there a real necessity to anchor entitlements to legislative rights in constitutional law?62 And if the answer is yes, for instance because the legislator is giving flesh to a fundamental right and purports to enhance the effect of that specific right, then the question left open for constitutional adjudication is whether the state has done too much or not done enough to give effect to fundamental rights.63 Given the existence of multiple options for the state to realize a fundamental right through positive intervention, it is only natural to conclude that constitutional adjudication ought to leave room for the legislature to make choices.64 Constitutional adjudication enforcing the positive dimension of constitutional norms ought therefore to acknowledge the greater discretion that political institutions have in shaping such positive dimensions of fundamental rights in contrast to their negative dimension. To that effect Somek calls for a ‘loose coupling’ of constitutional and legislative tools. This account, as he himself warns, must not be mistaken for an ‘awfully conservative’ argument simply because it amounts to a call to grant greater leeway to the legislature.65 Instead, it represents a sophisticated form of reasoning calling for a cautious approach to the use of constitutional norms when the legislator has chosen to facilitate and give effect to a fundamental right. This is not to say that there is no room for judicial review of legislation that gives flesh to a fundamental right. Judicial control is warranted to ensure that the EU decision-​making process is functioning normally.66 Furthermore, such legislation can interfere with other rights (or even the right itself ).67 It is therefore necessary to have checks on the ‘rationality and reasonableness of legislative action’.68 Yet, judicial review—​and in fact, more broadly, constitutional interpretation—​performed over legislation that realizes the positive dimension of fundamental rights is peculiar. 60  Alexy (n 20) 304. 61  ibid 287. 62  ibid 299. 63  Somek (n 15) 81. 64  ibid 113. 65  ibid 121. 66  Dawson (n 49) 26 et seq. 67  Somek (n 15) 83. 68  ibid 106; see also 110.

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The constitutional question will then be ‘whether and how the legislature creates one legal situation from another which is defensible pursuant to standards of constitutional reasonableness’.69 This approach to the changing role of constitutions and to the role of fundamental rights protection therein is particularly useful to shed light on the constitutional dynamics of EU equality law. After the entry into force of the Amsterdam Treaty, EU political institutions developed a whole body of legislation giving flesh to the principle of equal treatment. As noted in Chapter 1, as well as earlier on in this chapter, this legislation entertains an explicit and sophisticated relationship with the right to equal treatment protected by EU constitutional law. Such a relationship is also highly complex and blurred—​it is indeed ‘loose’. It should perhaps therefore come as no surprise that cases on the horizontal effect of EU equality law (Mangold,70Kücükdeveci,71 Dansk Industri72), as well as those on the scope and coherence of legislative intervention giving effect to the principle of equal treatment (Test-​Achats73), have triggered intense controversies. These cases epitomize a transformation of the fundamental right to equal treatment from a negative right to a positive one, and thus crystallize tensions between the constitutional norm and the legislation elaborating the fundamental right. As we shall see in Chapter 3, EU anti-​discrimination legislation as interpreted in these rulings is strongly anchored in EU constitutional law as it gives expression to the fundamental right to equal treatment. The constitutional authority of the right to equal treatment has had a decisive impact on the possibility to make use of EU legislation before domestic courts in horizontal settings as well as on the shape of EU legislative intervention. In other words, the constitutional norm has had a remarkably strong effect on the positive dimension of the fundamental right. It will be argued later that the points made by Waldron and Somek should be understood as warnings against the constitutional version of a right unduly constraining the legislature in its function as arbiter of political disagreement as well as authority responsible for shaping the positive dimension of fundamental rights. This is so because the arguments made by these authors resonate particularly strongly in an EU context.

2. Constitutional versus legislative guidance on fundamental rights in the EU The complex relationship between EU equality legislation and EU constitutional law ought to be understood in the light of the particularly high degree of constitutionalization of EU law itself (see section B.2.a). In the late 1990s, there was a forceful call for greater attention to be paid to fundamental rights protection in 69  ibid 110. 70  Werner Mangold v Rüdiger Helm [2005] ECLI:EU:C:2005:709. 71  Seda Kücükdeveci v Swedex GmbH & Co KG [2010] ECLI:EU:C:2010:21. 72  Dansk Industri (DI), acting on behalf of Ajos A/​S v Estate of Karsten Eigil Rasmussen [2016] ECLI:EU:C:2016:278. 73  Association Belge des Consommateurs Test-​Achats ASBL and others v Conseil des ministres [2011] ECLI:EU:C:2011:100.

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the daily politics of the EU (see section B.2.b). However, lukewarm responses have emerged out of fear that this would prevent the use of ordinary law to address classic societal imbalances, as well as leading to a blurring of the distinction between legislative and constitutional norms (see section B.2.c).

(a) Constitutionalization as inherent in both fundamental rights and EU law-​making In addition to being a key component of fundamental rights laws in domestic legal orders, constitutionalization is an inherent driver of the EU integration process.74 To start with, the founding Treaties are more determinative and legitimizing for the EU legal order than any domestic constitution is for national legal orders.75 Furthermore, the principle of primacy by which the Court asserted that any norms of EU law ought to take priority over domestic rules is one of the pillars on which the EU legal order is built.76 Soon after asserting the primacy of EU law over national law, the Court was pressured—​or invited—​to include the protection of fundamental rights in this constitutionalization process, although EU law was silent on fundamental rights protection.77 The Court thus progressively developed a broad range of general principles of EU law (unwritten constitutional law) destined to ensure that EU institutions, as well as Member States acting within the scope of EU law, would comply with fundamental rights.78 General principles of EU law thus include ‘fundamental rights, as guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms and as they result from the constitutional traditions common to the Member States’.79 Since the Treaty of Lisbon, general principles have been complemented by a written text, the Charter of Fundamental Rights, which has the same legal value as the EU Treaties.80

(b) The call for political intervention by the EU in matters concerning fundamental rights Although this process of constitutionalization of EU (fundamental rights) law is now well acknowledged,81 there has been much debate in recent years over the 74  Jürgen Habermas, The Crisis of the European Union: A Response (Polity Press 2012) 24–​25. 75  Paraphrasing Piet Eeckhout, ‘The EU Charter of Fundamental Rights and the Federal Question’ (2002) 39 CML Rev 945, 990. 76  Flaminio Costa v ENEL [1964] ECLI:EU:C:1964:66. 77  See further Karen Alter, Establishing the Supremacy of European Law: The Making of an International Rule of Law in Europe (OUP 2001). 78  Erich Stauder v City of Ulm—​ Sozialamt [1969] ECLI:EU:C:1969:57; Internationale Handelsgesellschaft mbH v Einfuhr-​und Vorratsstelle für Getreide und Futtermittel [1970] ECLI:EU:C:1970:114; Elliniki Radiophonia Tiléorassi AE and Panellinia Omospondia Syllogon Prossopikou v Dimotiki Etairia Pliroforissis and Sotirios Kouvelas and Nicolaos Avdellas and others[1991] ECLI:EU:C:1991:254. 79  Article 6(3) TEU. 80  Article 6(1) TEU. 81  See further Gareth Davies, ‘Legislative Control of the European Court of Justice’ (2014) 51 CML Rev 1579, 1582.

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need for, and desirability of, the development of a fundamental rights policy at EU level—​and thus for the EU to develop a political discourse on fundamental rights. One of the triggers for this was the call for deeper European integration in the 1990s. This related to the feeling that perhaps the EU should place fundamental rights at the core of its activities to complement and counterbalance its economic focus and enhance its legitimacy.82 Furthermore, there remains a vivid awareness that the more plural the legal order, the more important the need to debate the shape of fundamental rights protection at the political level, instead of leaving this process to constitutional law-​making and adjudication.83 Weiler and Alston in particular have made a powerful argument in favour of the development of a coherent EU fundamental rights policy in a famous paper entitled ‘An “Ever Closer Union” in Need of a Human Rights Policy: the European Union and Human Rights’.84 The authors argue that the EU needs to bridge the cleavage between its verbal commitment to human rights and its actions. For the purpose of our analysis, this proposal amounts to a call for greater politicization of the human rights discourse at EU level.85 It primarily constitutes an invitation to involve a wide range of actors in giving a more active or ‘positive’ dimension to the EU integration process on matters of fundamental rights protection.86

(c) Responses to the call for political intervention by the EU in matters concerning fundamental rights The Weiler and Alston proposal has triggered multiple reactions. One of the key responses has come from von Bogdandy. He argues that although it is true that the protection against fundamental rights violations in the context of EU intervention should be accompanied by ‘corrective regulative and distributive mechanisms’,87 this should ‘not be cast in human right terms, let alone in terms of human rights policy’.88 This is for two reasons. First, one should be cautious before giving a constitutional anchorage to rights. Casting corrective regulative and distributive mechanisms in human rights terms may ignore the careful balancing process between liberal freedoms, political rights, and social entitlements that political institutions ought to perform.89 The danger 82  Philip Alston and Joseph HH Weiler, ‘An “Ever Closer Union” in Need of a Human Rights Policy: The European Union and Human Rights’ (1999) Harvard Jean Monnet Working Paper No 1/​ 1999, 15. 83  Richard Bellamy, ‘Constitutive Citizenship versus Constitutional Rights: Republican Reflections on the EU Charter and the Human Rights Act’ in Tom Campbell, Keith D Ewing, and Adam Tomkins (eds), Sceptical Essays on Human Rights (OUP 2001) 16. 84  Alston and Weiler (n 82). 85  The authors provide examples of legal bases in the EU Treaties that could be used. Please note that the paper dates back to 1999 but is to a large extent still relevant today. 86  Alston and Weiler (n 82) 10 as well as 16 et seq. 87  Armin von Bogdandy, ‘The European Union as a Human Rights Organization? Human Rights and the Core of the European Union’ (2000) 37 CML Rev 1307, 1315. See also David Kennedy, ‘The International Human Rights Movement: Part of the Problem?’ (2002) 14 HHRJ 101, 109. 88  von Bogdandy (n 87) 1315. 89  ibid 1315.

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here is the encouragement of claims and assertions against a given entity instead of enhancing inter-​group and inter-​individual sensitivity.90 Understood through that lens, the politicization of fundamental rights discourse may create an appeal towards claims to entitlements in terms of ‘fundamental rights’ instead of using better suited tools. Research has evidenced that this danger is materializing in the context of French anti-​discrimination law and policy, for example.91 French anti-​discrimination law now covers more than twenty grounds of discrimination. This creates a significant conceptual as well as technical challenge.92 Some of the grounds, such as ‘physical appearance’, have distinct conceptual underpinnings, as compared to more traditional grounds of discrimination such as ‘sex’. They are not as clearly designed to protect an intrinsic characteristic of the person and its dignity. Take physical appearance, which relates more closely to freedom of expression. In turn, this conceptual nuance may make it difficult to transpose the technicalities of equality law to all (new) grounds. This creates a risk of diluting and blurring the consistency of a field of law designed to protect fundamental values to the extent of incorrectly tackling the genuine origins of a societal problem.93 Second, political debate on fundamental rights in the context of daily decision-​ making procedures will inevitably remain intertwined with a strong ‘constitutional’ framing. This would create pressure on the Court to increasingly engage in a human rights discourse and place this—​as well as itself—​in a position of greater centrality in the European political process.94 Von Bogdandy warns that the Court may not have the necessary legitimacy to depart to such a great extent from its primary function, which is to ensure that the result of the political process be enforced.95 A constitutionalization process mediated by the Court may also remove a broad range of issues from the circumstances of ordinary politics in an unwanted way. Furthermore, and related to the argument just made on problems associated with wording an overly broad range of concerns in terms of fundamental rights, such a constitutional framing creates the risk of ignoring or undermining protection mechanisms that could be developed in the framework of a much broader range of policy areas such as civil, labour, or criminal law. The debate on the desirability of further policy-​making and political guidance in the form of EU legislation on fundamental rights does not call into question the existence of constitutional forms of fundamental rights protection. The point made by von Bogdandy is that legislative intervention at the EU level cast in human rights terms may not be an appropriate pathway to enhance the protection of individuals; 90  Kennedy (n 87) 113. 91  Tatiana Gründler and Jean Marc Thouvenin, La lutte contre les discriminations à l’épreuve de son effectivité (CEDIN and Fédération des Unités de Recherche en Droit, Juin 2016) 20 et seq. 92  I am grateful to Sophie Latraverse for providing helpful examples on this point. 93  For a complementary analysis of the risk of ‘over-​stretching’ the grounds qualifying for protection against discrimination, see also Aileen McColgan, Discrimination, Equality and the Law (Hart Publishing 2014) 63–​66. 94  von Bogdandy (n 87) 1329. See also Bruno de Witte, ‘The Legal Status of the Charter: Vital Question or Non-​Issue?’ (2001) 8 MJ 81, 84. 95  von Bogdandy (n 87) 1325.

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he does not call into question the necessity for the existence of a system of judicial review to ensure the compliance of EU law with fundamental rights.96 The important point made is that the adoption of legislation elaborating on fundamental rights cannot easily be disconnected from constitutionalization processes, thus creating risks of interferences between two layers of norms. Such interferences are unique in and to the EU legal order for two reasons. On the one hand, the interplay between legislative law-​making and constitutional interpretation on matters of fundamental rights creates a particularly strong case for ‘uploading’ the rights at hand. EU law is characterized by a particularly high level of constitutionalization—​namely, of norms being enshrined in EU primary law (when it comes to economic law in particular)—​because of the particular process by which EU integration has been engineered.97 Greater emphasis on fundamental rights discourses would only enhance the appeal to intensify the constitutionalization process due to the inherent ‘fundamental’ nature of such a discourse. On the other hand, the emphasis placed on either legislative intervention or constitutional guidance implies inter-​institutional tensions which differ in a supranational legal order from those present in a domestic legal order. The debates on judicial review and the positive dimension of fundamental rights outlined in the previous section provide valuable tools to reflect on the legitimacy implications of the various sources of fundamental rights protection in the EU legal order. Nevertheless, both debates are largely shaped in the context of domestic legal orders.98 The important role given to the legislator by the relevant theories developed in the US, UK, or German contexts is to be related to the existence of large democratically accountable assemblies which have no EU equivalent. Similarly, the role of the Court as a constitutional adjudicator differs from that of domestic constitutional courts. The theoretical debate between proponents of constitutional forms of protection and those who support heavier reliance on legislative intervention on fundamental rights is thus mirrored by a vivid debate on whether and how the EU could further develop policy tools to enhance fundamental rights protection. The precise implications of this debate for EU equality law remain, however, to be unpacked.

3. Constitutional versus legislative guidance on equality law in the EU The EU legal order is distinct from domestic legal orders: it is ‘derivative’ and ‘dependent upon’ (historically) state-​based systems while also being independent (normatively) from state-​based systems.99 As a result, the features of the institutional 96  See also Joseph HH Weiler, ‘Fundamental Rights and Fundamental Boundaries: On Standards and Values in the Protection of Human Rights’ in Nanette A Neuwahl and Allan Rosas (eds), The European Union and Human Rights (Martinus Nijhoff Publishers 1995) 52. 97  Mark Dawson, ‘The Political Face of Judicial Activism: Europe’s Law-​Politics Imbalance’ in Mark Dawson, E Muir, and Bruno de Witte (eds), Judicial Activism at the European Court of Justice (Edward Elgar 2013) 11 et seq; Davies (n 81) 1582. 98  Neil Walker, ‘Human Rights in a Post-​National Order: Reconciling Political and Constitutional Pluralism’ in Tom Campbell, Keith D Ewing, and Adam Tomkins (eds), Sceptical Essays on Human Rights (OUP 2001) 127. 99  ibid 129.

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framework in which policy-​making on fundamental rights would or does take place differ significantly from those of a domestic legal order. We shall briefly sketch out the respective roles of the four key EU institutions in law and policy-​making on fundamental rights issues. As the EU has no general fundamental rights competence and as the precise circumstances in which legislation-​making takes place depend on the exact wording of the provision enabling the EU legislature to intervene (or ‘legal basis’), the practical implications of the theoretical debates highlighted above can be best measured by reference to a specific domain of legislative intervention. We will take the example of EU equality law which, in addition to being the focus of this book, consists of several legal bases and illustrates the complexity and nuances of the respective roles of the European Parliament, the Council, the Commission, and the Court of Justice of the EU. To start with, the involvement of the European Parliament in decision-​making greatly differs from the role of domestic elected chambers. As will be examined in further detail later,100 at best, it is a co-​legislator together with the Council. For instance, for the purpose of EU equality law-​making, the European Parliament has only been a co-​legislator for the adoption of legislation on sex discrimination in employment and in self-​employment since the Treaty of Amsterdam. This was illustrated by the large 2006 recast of EU sex equality law in employment (Directive 2006/​54)101 and in the 2010 revised version of the directive on self-​employment (Directive 2010/​41).102 In contrast, the initial version of Article 19 TFEU, which is the broadest legal basis for the adoption of EU equality, only granted the European Parliament a consultative power. Some of the key directives in this field, such as the Race Directive and the Framework Employment Directive (which prohibits discrimination on grounds of religion or belief, sexual orientation, disability, and age), have thus been adopted after mere consultation of the European Parliament. Furthermore, the representativeness of the European Parliament is continuously called into question due to the lack of a fully unified electoral system, the weak Europeanization of the party system, and the particularly low participation rate in its election process.103 In contrast, the Council (composed of representatives of each Member State at ministerial level) has a prominent role in EU policy and legislation-​making.104 This is particularly clear in the context of EU equality legislation, where the vast majority of the key directives have been adopted by that institution. This is the case for the five directives preceding the large recast from 2006 on sex equality in employment105 100  See Chapter 3, section A. 101  Article 157(3) TFEU. Directive (EC) 2006/​54 of 5 July 2006 on the implementation of the principle of equal opportunities and equal treatment of men and women in matters of employment and occupation (recast) [2006] OJ L204/​23. 102  Directive (EU) 2010/​41 of 7 July 2010 on the application of the principle of equal treatment between men and women engaged in an activity in a self-​employed capacity and repealing Council Directive 86/​613/​EEC [2010] OJ L180/​1. 103  See, for instance, Habermas (n 74) 43. 104  See also ibid 30. 105  Council Directives (EEC) 76/​207 of 9 February 1976 on the implementation of the principle of equal treatment for men and women as regards access to employment, vocational training and promotion, and working conditions [1976] OJ L39/​40; 86/​378 of 24 July 1986 on the implementation of the principle of equal treatment for men and women in occupational social security schemes [1986] OJ

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and for the directive on sex equality in self-​employment preceding the 2010 modernization, as mentioned.106 This is also the case for sex equality in statutory security schemes107 and in access to goods and services.108 Finally, it is also the case for the directives from 2000 prohibiting discrimination on grounds of race or ethnic origin,109 on the one hand, and discrimination on grounds of religion or belief, disability, age, or sexual orientation, on the other.110 Furthermore, in the adoption of these instruments, the Council at times voted by qualified majority,111 but most often did so by unanimity.112 In other words, one can certainly say that EU equality law has been primarily shaped by the Council113 and with a strong influence from each Member State. While the European Parliament and the Council are the main institutions involved in policy-​making over fundamental rights, a word should be added on the European Commission as well as the Court. The European Commission, which has less democratic standing than the two institutions just examined,114 has a so-​called ‘monopoly’ over legislative initiatives. This implies that proposals for EU legislation on fundamental rights matters may not be analysed by either the European Parliament or the Council unless they are tabled by the Commission. Only the Commission could thus propose to amend or broaden the scope of EU equality law by reference to one of the legal bases provided for in the TFEU.115 The European Parliament does not have any powers of that kind. The Commission may also play an important role in steering a policy in its status as administrator of certain funding programmes, as well as in its capacity as ‘guardian of the treaties’.116

L225/​40; 75/​117 of 10 February 1975 on the approximation of the laws of the Member States relating to the application of the principle of equal pay for men and women [1975] OJ L45/​19; and (EC) 97/​ 80 (n 31). 106  Council Directive (EEC) 86/​613 of 11 December 1986 on the application of the principle of equal treatment between men and women engaged in an activity, including agriculture, in a self-​ employed capacity, and on the protection of self-​employed women during pregnancy and motherhood [1986] OJ L359/​56. 107  Council Directive (EEC) 79/​7 of 19 December 1978 on the progressive implementation of the principle of equal treatment for men and women in matters of social security [1979] OJ L6/​24. 108  Council Directive (EC) 2004/​113 of 13 December 2004 implementing the principle of equal treatment between men and women in the access to and supply of goods and services [2004] OJ L373/​ 37. 109  Council Directive (EC) 2000/​43 (n 27). 110  Council Directive (EC) 2000/​78 of 27 November 2000 establishing a general framework for equal treatment in employment and occupation [2000] OJ L303/​16. 111  eg Council Directive (EC) 97/​80 (n 31). 112  This is certainly the case for Directives 2000/​43 (n 27), 2000/​78 (n 110), and 2004/​113 (n 108). 113  Please note that even when the European Parliament has been a co-​legislator together with the Council, the legislation thereby adopted largely relied on earlier instruments adopted by the Council only. 114  Article 17 TEU. 115  eg Commission (EC), ‘Proposal for a Council Directive on implementing the principle of equal treatment between persons irrespective of religion or belief, disability, age or sexual orientation’ COM (2008) 426 final, 7 July 2008. 116  See further Mark Dawson and Elise Muir, ‘Individual, Institutional and Collective Vigilance in Protecting Fundamental Rights in the EU: Lessons from the Roma’ (2011) 48 CML Rev 751.

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As for the Court of the EU, it plays a crucial part in the process of cons­ titutionalization of EU fundamental rights—​and more specifically equality—​law. As the Court is competent not only to review the lawfulness of EU legislation, but also to interpret EU law in general, there is a broad range of settings in which the Court may rule on fundamental rights matters.117 The preliminary ruling procedure is a tool to guide domestic courts on the interpretation of EU law in any sort of domestic litigation, thus allowing its rulings to reach far into domestic legal orders.118 Nico Krisch understands the relationship between European courts on matters of human rights as a heterarchical system of protection allowing for a form of ‘judicial politics’.119 According to him, judges in a pluralist legal order such as that of the EU may show ‘readiness to leave questions of principle open’, while domestic judges would tend to favour solutions enshrined in domestic law.120 Other observers warn against the Court making use of human rights arguments to place itself in a more central position in the EU legal order.121 As clearly emerges from this swift institutional overview, the tension between politicization and constitutionalization in EU equality law has a distinct flavour that distinguishes it from a similar debate related to the fundamental rights discourse at domestic level. In essence, as regards EU equality law: (i) the European Parliament has limited involvement; (ii) the Council has a decisive impact as—​more often than not—​each Member State has a veto right;122 (iii) the Commission has a monopoly of initiative which significantly limits the ability of the European Parliament to influence the scope of EU legislation; and (iv) there is a supranational judiciary whose rulings can be requested by any domestic judge and take primacy over domestic rulings from higher instances. One could wonder if the process by which the Charter of Fundamental Rights of the EU (CFEU) has been adopted could at least partially compensate for the significant lack of democratic input in the shaping of fundamental rights law-​making. This matter has been examined by Bellamy and Schönlau.123 The CFEU has indeed been drafted during an innovative and remarkably open process: a Convention. It gathered fifteen representatives of the Heads of State and Government, thirty representatives from national parliaments, sixteen representatives of the European 117  For an overview in the context of EU equality law see: Mark Dawson, Elise Muir, and Monica Claes, ‘Enforcing the EU’s Rights Revolution: The Case of Equality’ (2012) 3 EHRLR 276. 118  Monica Claes and Šejla Imamović, ‘National Courts in the New European Fundamental Rights Architecture’ in Vasiliki Kosta, Nikos Skoutarisand, and Vassilis Tzevelekos (eds), The EU Accession to the ECHR (Hart Publishing 2014) 159–​74. 119  Nico Krisch, ‘The Open Architecture of European Human Rights Law’ (2008) 71 MLR 183, 185. 120  ibid 214. 121  von Bogdandy (n 87) 1329. 122  See, for instance, the position of Germany on the current proposal to expand the material scope of the prohibition of discrimination on grounds of religion or belief, disability, age or sexual orientation beyond employment (Commission (EC), ‘Proposal for a Council Directive on implementing the principle of equal treatment between persons irrespective of religion or belief, disability, age or sexual orientation’ COM (2008) 426 final, 7 July 2008). 123  Richard Bellamy and Justus Schönlau, ‘The Normality of Constitutional Politics: An Analysis of the Drafting of the EU Charter of Fundamental Rights’ (2004) 11 Constellations 412. See also Gráinne de Búrca, ‘The Drafting of the European Union Charter of Fundamental Rights’ (2001) 26 EL Rev 126, 130, and 138.

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Parliament, and one from the Commission. Yet, Bellamy stresses that in the end the final decision rested in the hands of delegates of the Member States, thus removing the text from the broad political process that the Convention was intended to generate. He also highlights that the CFEU creates a system of fundamental rights protection that is too unitary and which lacks flexibility and subtlety.124 Bellamy would have favoured a legislative body empowered to interpret and update the text on a regular basis.125 In that sense, the CFEU does not as such affect or change the observation that overall there is limited democratic input in the shaping of EU fundamental rights law. All in all, therefore, the ancillary involvement of the European Parliament in legislation-​making significantly blurs the role of the EU legislature in seeking to achieve a legitimate political compromise in the context of disagreement on the shape and scope of EU rights.126 This seemingly runs counter to Waldron’s idea of deliberative democracy as a pre-​condition for the sound politicization of the fundamental rights discourse. In particular, this makes it unlikely that the views of political minorities would be taken into account in the decision-​making process and understood as respectable.127 Even a greater involvement of the European Parliament might not fully address these concerns, as it has been argued that the European Parliament may represent national views more than pan-​European interests of individuals per se.128 Similarly, one may question the ability of the Council, an entity representing the executives of the Member States, to represent individual interests in good faith and in a public-​spirited way. Finally, the weightiness of decision-​making at EU level (such as unanimity requirements at the Council) makes it particularly difficult to ‘undo’ legislation,129 thus limiting re-​politicization. Do these ‘democratic weaknesses’ suggest that the EU legislature should be deprived of the possibility, or severely constrained in the use of its powers, to elaborate fundamental rights? The answer is negative. Although EU political processes have weaknesses in terms of their democratic credentials, the legitimacy of constitutional law-​making and adjudication on fundamental rights law-​making can also be seen as shaky, as illustrated by the vivid debate on the role of the Court in the EU legal order.130 Yet, and in any case, the question does not need to be posed in such drastic terms. The point being made here is more nuanced. The call for legislative guidance on the elaboration of the positive dimension of fundamental rights, voiced by Waldron and Somek in different terms, is very useful in the EU context. It helps to enhance our understanding of the role and legitimacy of political guidance in addressing highly sensitive societal questions. As Somek explains, legislative intervention is in many ways warranted by modern constitutions. One must simply keep in 124  Bellamy (n 83) 31–​33. 125  ibid 37. 126  See also, on the role of the European Parliament in decision-​making on fundamental rights, Alston and Weiler (n 82) 16. 127  Waldron (n 42) 111. 128 Bellamy (n 83)  33. Contrast with the findings obtained by François Foret, ‘Religion and Fundamental Rights in European Politics: Convergences and Divisions at the European Parliament’ (2014) 14 Human Rights Review 53–​63. 129  Davies (n 81) 1582–​83. 130  ibid 1582.

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mind that, in the EU, the political process leading to the adoption of legislation has unique characteristics that may make political decision-​making particularly complex and vulnerable to criticism. An additional complexity comes from the coexistence of national and EU layers of fundamental rights protection, as we shall now see.

C.  Tensions between Domestic and EU Legal Orders in the Process of Europeanization of the Fundamental Rights Discourse To reflect critically on the high level of constitutionalization of EU equality law, earlier sections drew attention to legal theories explaining the importance of legislative elaboration of fundamental rights. One line of argument, epitomized by the work of Waldron on judicial review, emphasizes the role of legislation in placing disagreement on the nature and shape of fundamental rights protection at the core of political activity.131 According to another line of thought, illustrated by Somek’s work on constitutionalism, constitutions that require public intervention to elaborate rights and political institutions ought to be given leeway to choose how to flesh out the positive dimension of a fundamental right. This section analyses the implications that such an emphasis on legislative guidance on the nature and scope of fundamental rights protection may have on the interaction between the EU and domestic legal orders. The EU legal order is indeed unique in so far as it is ‘derivative’ and ‘dependent upon’ state-​based systems, while also being independent (normatively) from state-​ based systems, to reiterate the narrative of Walker.132 In this context, an EU discourse on fundamental rights may be a source of cohesion as much as a source of discord (see section C.1). It may, in particular, be divisive if it proves unable to adjust to legitimate claims to diversity. Such claims may be worded in terms of subsidiarity (see section C.2), which is the classical EU tool to regulate the relationship between domestic and EU levels. Yet, unlike the ECHR law, EU law is not a subsidiary system of protection (see section C.3). It actually pre-​empts domestic intervention in many ways, which makes it difficult for claims to diversity to be heard once legislation is adopted. Certain conceptual tools, however, call for judicial self-​restraint in the interpretation of relevant legislation, as we shall see. It is in the light of these words of caution that the supranationalization of EU equality law-​making and the call for deference to political guidance on the elaboration of fundamental rights (see section C.4) ought to be examined.

1. Constitutive versus divisive effects of supranationalization of fundamental rights discourse If disagreement is so central to the fundamental rights discourse and thus potentially so divisive, why develop it in the form of a ‘policy’ at European level? This question 131  Waldron (n 42) 93.

132  Walker (n 98) 129.

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was already partly answered in the debate from the late 1990s on the need and desirability to develop a fundamental rights policy at the EU level. At that time there was a strong feeling that deeper European integration and a more central role for fundamental rights protection in EU politics would enhance the legitimacy of the EU legal order.133 Walker, in particular, calls for an argument to be made beyond the democratic critique (as briefly outlined at the end of section B) of the EU fundamental rights regime.134 His reasoning is twofold. On the one hand, the protection of fundamental rights may be perceived as a way of consolidating democratic scrutiny and control in the EU. On the other, this would compensate for the initial economic bias of the common market.135 To start with the first prong of Walker’s argument, a greater focus on fundamental rights protection at the EU level might actually attract greater political attention and thus act as a trigger for greater democratic activity at that level.136 In that sense, Walker stresses that the strength of the fundamental rights argument in such a legitimizing function is that the definition of fundamental rights would be entrusted to EU political institutions (such as by Article 16 TFEU on data protection or Article 19 TFEU on non-​discrimination)—​however imperfect these institutions may be from the perspective of democratic accountability. What is desirable, then, is a ‘human rights policy’ (emphasis in original)137 with specific emphasis on the role of ordinary politics, so as to pay tribute to the ‘sensitive and deliberative context for assessing the force and deciding the practical import for various compensatory arguments within the extended chain of rights’.138 Understood through that lens, policy-​making on fundamental rights matters at the EU level ought to be protected from ‘constitutionalization’ or ‘ossification’139 to avoid reintroducing the democratic objection.140 Moving to the second prong of Walker’s argument, there is an appeal for fundamental rights to address the criticism according to which the process of EU integration has largely focused on economic values without providing adequate avenues to mitigate such a normative bias.141 According to a well-​established line of reasoning, this could be counterbalanced by enhancing the relevance of, and discourse on, fundamental rights at the EU level.142 Both sets of arguments remain strongly self-​centred to the extent that they seek to enhance the legitimacy of the very structure—​the EU—​that they pledge to consolidate; they do not take into account arguments and interests exogenous to the 133  Alston and Weiler (n 82) 15. See also, for instance, Mark Bell, Anti-​Discrimination Law and the European Union (OUP 2002) 13. 134  Walker (n 98) 135. For another attempt at addressing the issue of legitimacy in the face of a possible deficit of the democratic juridification of governance beyond the nation state, see further Habermas (n 74) 41; this analysis, however, mostly focuses on constitutional law-​making in the EU rather than policy-​making. 135  Walker (n 98) 135. 136  See also Dawson (n 49) 20. 137  Walker (n 98) 141. 138 ibid. 139  Opinion of Advocate General Trstenjak, Maribel Dominguez v Centre informatique du Centre Ouest Atlantique and Préfet de la région Centre [2011] ECLI:EU:C:2011:559, para 157. 140  Walker (n 98) 137. See also von Bogdandy (n 87). 141  See, for instance, Davies (n 81) 1582; Dawson (n 97). 142  Alston and Weiler (n 82).

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EU legal order. One may wonder why it may be felt that certain fundamental rights questions should be tackled at the European level instead of at the domestic level. The most powerful and valuable external argument in favour of supranational protection of fundamental rights relates to the need for review. The existence of an exogenous set of actors monitoring fundamental rights compliance in national legal orders may indeed permit the calling into question of the bias deeply enshrined in domestic and/​or local systems.143 Leaving aside the question of whether this role should be fulfilled in Europe by the EU or the Council of Europe for now,144 one of the implications of this approach is that the supranational level is indeed used as a tool to review, or ‘a check on’, domestic policy-​makers. In this context, the danger of enhanced supranationalization of fundamental rights questions is that it triggers or feeds a feeling among national constituencies that their political preferences are being disregarded. Enhanced supranationalization may not rely on channels that allow for genuine participation of all the stakeholders because of the disjuncture between domestic and the EU legal order.145 This disjuncture is related to specific criticisms of the EU institutional framework, as aforementioned, as much as to the general dynamics of supranational human rights governance. Sociologists have shown that while the supranational level offers multiple opportunities for human rights actors to support and shape progressive agendas despite reticence at the domestic level, the same ‘circumvention logic’ explains why the outcome reached at the supranational level may trigger domestic resistance. As Ruzza puts it, the conflict results from the fact that ‘different social actors line up differently’ at the domestic and supranational levels.146 By couching their policy and fundamental rights arguments at the supranational level in cosmopolitan terms or in terms of a broader European identity, civil society actors may create a source of resistance within domestic spheres related to the ‘perceived threat to national identities and allegiances’.147 This is well exemplified in the case studies reported in Chapter 5.148 In other words—​precisely, those of Kennedy—​the rights discourse developed at the European level may encourage reliance on actors perceived as ‘knowledge elites’ while alienating domestic constituencies from the vocabulary and conceptual framework of their governance.149 Furthermore, norms established at the supranational level in order to prevail over domestic norms—​as EU law does—​may appeal to universality and neutrality in a way that results in a (perceived) lack of attention for the contextual sociological and political conditions that shape the meaning of a right in

143  Weiler (n 96) 52 and 74. 144  To the extent that this book investigates policy-​making on fundamental rights matters, the focus is on the EU legal order where political debates on the content of fundamental rights may lead to the adoption of related legislation. 145  See, for instance, Bell (n 133). 146  Carlo Ruzza, ‘Civil Society Actors and EU Fundamental Rights Policy:  Opportunities and Challenges’ (2014) 15 Human Rights Review 71. 147  ibid. For a contrasting view specific to the feminist movement, see Catherine Hoskyns, Integrating Gender: Women, Law and Politics in the European Union (Verso 1996) 17. 148  See Chapter 5, section B.1. 149  Kennedy (n 87) 117.

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a given context.150 That thereby possibly deters all sorts of promising local initiatives from contesting local conditions in other terms.151 The danger here is that an EU fundamental rights discourse becomes so detached from the domestic sphere or is perceived as so exogenous that it is ultimately rejected altogether. In order to achieve the objective of acting as a source for cohesion, EU intervention elaborating on the positive dimension of fundamental rights thus ought to be mediated through political discourse as well as being able to accommodate claims for divergent national sensitivities. The infrastructures of EU law, however, do not make it particularly easy to address claims to diversity.

2. The EU principle of subsidiarity is ill-​suited to regulate EU legislative intervention in fundamental rights matters An attempt at reconciling the need for supranational intervention in fundamental rights with that of respect for domestic peculiarities leads us to turn to the principle of subsidiarity. The principle is indeed often alluded to in order to articulate the relationship—​or alleviate tensions—​between domestic legal orders and European legal orders by ensuring that decisions are made as closely as possible to citizens.152 Although useful, the EU version of this principle is imperfect in terms of enabling the sophisticated interplay between EU and national law in the field of fundamental rights protection to be fully grasped.153 As it is defined in EU law, the principle of subsidiarity only provides limited guidance to justify EU intervention in fundamental rights matters. According to Article 5(3) TEU and as it is commonly understood, the principle relies on a two-​ tier comparative efficiency test. The EU may intervene only if the Member States cannot achieve the desired objective to a sufficient degree and if the EU can actually do better on the matter. This comparative efficiency test may not be appropriate to guide fundamental rights standard-​setting by political institutions. Indeed, it does not allow tensions between values that are central to controversies on the EU fundamental rights discourse to be addressed.154 The (non-​exhaustive) competence catalogue in Articles 3 to 6 TFEU does not provide much guidance on whether EU fundamental rights competences are exclusive or shared. Nevertheless, it would seem logical that fundamental rights standard-​ setting (whenever such a competence is granted to the EU) is a shared competence of the EU and the Member States.155 Indeed, Member States should, as a matter of principle, be able to provide protection in the absence of EU legislative intervention 150  ibid 110. 151  ibid 108. 152  eg Recital (1) of the Protocol (No 2) on the Application of the principles of subsidiarity and proportionality [2008] OJ C115/​206. 153  See further the distinction between functional and normative subsidiarity in Laurence R Helfer, ‘Redesigning the European Court of Human Rights: Embeddedness as a Deep Structural Principle of the European Human Rights Regime’ (2008) 19 EJIL 125, 128. 154  See by analogy Fritz W Scharpf, ‘The Double Asymmetry of European Integration; or: Why the EU cannot be a Social Market Economy’ (2009) MPIfG Working Paper No 09/​2012, 21–​22. 155  See also Article 4(1) TFEU.

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on the matter. Article 5(3) TEU on subsidiarity thus, in principle, applies whenever political institutions exercise an EU competence with the effect of setting fundamental rights standards or establishing mechanisms for the protection of fundamental rights. Although technically the principle is thus doctrinally relevant, its practical implications in the context of fundamental rights protection are unclear. In particular, the enforceability of the principle as a ground for the annulment of a provision of EU law is knowingly limited. Although the subsidiarity argument is often invoked in political negotiations preceding the adoption of a text,156 so far the Court has been very reluctant to second guess the political agreement reached by political institutions on matters of subsidiarity.157 Such averseness is likely to be even stronger in the context of EU legislation that has fundamental rights implications. The reasons for such a limited practical and legal relevance have been explored by several authors,158 and are twofold. The first explanation is that the function of fundamental rights protection in EU law (as that of consumer protection or employment law, for instance) differs from that of competences that have a cross-​border component. That makes the EU principle of subsidiarity inappropriate to provide useful guidance. The definition of the principle of subsidiarity provided for in Article 5(3) TEU relies on the assumption that the principle articulates the relationship between the EU and the Member States in a transnational context.159 However, certain EU fundamental rights competences—​especially in the case of legislation designed to ‘give specific expression’ to a fundamental right—​are concerned with regulating relationships within states;160 they go further in deepening European integration rather than merely regulating relationships among states. Scharpf has pointed out that contemporary EU anti-​discrimination law cannot normatively be supported by the traditional discourse on European integration.161 Instead, it may represent a contribution to a new Europeanization: an ideal to be employed both as a normative justification and for the purpose of developing a European model that involves neither economic liberties nor transnational mobility.162 There is thus a mismatch between the function of the principle of subsidiarity as defined 156  See eg debates at the Council on Commission (EC), ‘Proposal for a Council Directive on implementing the principle of equal treatment between persons irrespective of religion or belief, disability, age or sexual orientation’ COM (2008) 426 final, 2 July 2008; and in national parliaments on Commission (EU), ‘Proposal for a Council Regulation on the exercise of the right to take collective action within the context of the freedom of establishment and the freedom to provide services’ COM (2012) 130 final, 21 March 2012. 157 eg United Kingdom of Great Britain and Northern Ireland v Council of the European Union [1996] ECLI:EU:C:1996:431. 158  eg Gareth Davies, ‘Subsidiarity: The Wrong Idea, in the Wrong Place, at the Wrong Time’ (2006) 43 CML Rev 63; Paul Craig, ‘Subsidiarity: A Political and Legal Analysis’ (2012) 50 JCMS 72. 159 Thomas Horsley, ‘Subsidiarity and the European Court of Justice:  Missing Pieces in the Subsidiarity Jigsaw’ (2012) 50 JCMS 267, 275. 160  Andreas von Staden, ‘The Democratic Legitimacy of Judicial Review Beyond the State: Normative Subsidiarity and Judicial Standards of Review’ (2011) Jean Monnet Working Paper No 10/​2011, 9. 161  Fritz W Scharpf, ‘Perpetual Momentum: Directed and Unconstrained?’ (2012) 19 JEPP 127. 162 ibid.

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in EU law and the function of fundamental rights standard-​setting in the EU. As pointed out earlier, the EU’s main aim is ‘to bring into being a European public sphere based on a shared understanding of rights and so motivate agreement on a federal structure for Europe that in various ways goes beyond national allegiances and political cultures’.163 A subsidiarity test concerned with the appropriate (national versus EU) level for the regulation of fundamental rights standards is thus foreign to the dynamics of fundamental rights standard-​setting through EU legislation. This is especially so when such legislation is specifically designed to give expression to a fundamental right.164 The second—​and closely related—​element explaining the difficulty of applying the traditional EU subsidiarity test to legislation involving fundamental rights relates to the nature of fundamental rights standard-​setting. As pointed out by Davies, genuine dilemmas and controversies on matters of fundamental rights protection primarily originate in shocks between objectives or values.165 In contrast, the subsidiarity test, as it is defined by EU law, is based on an assessment of the effectiveness of the law to pursue a pre-​established objective. Key conflicts on the definition of fundamental rights standards thus cannot be solved by comparative efficiency tests: they are instead concerned with prioritizing and balancing values.166 This observation is particularly relevant for EU legislation designed to ‘give specific expression’ to a fundamental right such as EU equality law.167 These legislative acts prioritize one fundamental right over other fundamental rights and objectives. A key problem will be that controversies are likely to result from the interaction with other values that will not form part of the subsidiarity test.168 As Davies stressed, ‘the value-​violence [which is being done to] some states, or the autonomy cost which [is thereby imposed], is considerable . . . Subsidiarity, however, will not be involved’.169 A subtle and highly sensitive balance between various values as well as levels of authority is therefore encapsulated in EU legislation giving expression to a fundamental right.

3. The EU is not a subsidiary organ Claims to diversity and related tensions between domestic legal orders and the EU can thus hardly be captured by the principle of subsidiarity as defined in EU law. The difficulty for the EU in addressing concerns raised by domestic sensitivities on

163  Richard Bellamy, ‘Still in Deficit: Rights, Regulations, and Democracy in the EU’ (2006) 12 ELJ 725, 733. 164  See also Horsley (n 159) 275. 165  Davies (n 158) 67–​72. 166  Acknowledging that it is more difficult to apply precepts of comparative efficiency that underpin subsidiarity to heads of competence that are other than economic, Paul Craig (n 158) 75. 167 See further Elise Muir, ‘The Fundamental Rights Implications of EU Legislation:  Some Constitutional Challenges’ (2014) 51 CML Rev 219. 168  See also Davies (n 158) 67–​72. 169  Gareth Davies, ‘Subsidiarity as a Method of Policy Centralisation’ (2006) Hebrew University International Law Research Paper No 11/​2006, para 5.

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fundamental rights matters is affected by another feature of the EU legal order: it is anything but a subsidiary organ. Somek argues that the success of a system of fundamental rights protection such as that of the ECHR lies in the fact that it leaves participants sufficient leeway on the intensity of their involvement, allowing for a degree of self-​determination.170 The ‘weak supranational character of the system’, as well as techniques such as that of the ‘margin of appreciation doctrine’, help states to balance the costs of the narrowing of their sovereignty over the matter.171 The ECHR thus relies on an element of subsidiarity, understood in the broad sense (not in the EU sense as just discussed), that acknowledges national representative institutions as the central political bodies in the process of realization of fundamental rights protection.172 This allows for a combination of external monitoring and supervision of fundamental rights with internally driven mechanisms of change. In contrast, the EU is not designed to be ancillary to national mechanisms of human rights protection.173 This places the EU in a distinct position from that of the ECHR, the function of which is primarily to provide minimum standards, after the exhaustion of domestic remedies, for all rights identified as human rights in the Convention.174 The EU is an entity with a broad range of legislative powers that may lead to the unification of selected fundamental rights. The system of allocation—​ and exercise—​of EU competences results in circumstances in which EU law, since it takes primacy over national law,175 may deprive Member States of any discretion in setting fundamental rights standards. This may naturally arise in fields where the EU has exclusive competence but also in fields of shared competences where the EU legislator has exercised the competence in a way that pre-​empts further domestic intervention. The Court’s Melloni case illustrates this second situation.176 The European Framework Decision 2002/​ 584177 was so detailed in terms of the application of the European Arrest Warrant mechanism to the situation of trials in absentia, that Member States were left with no discretion and ‘human rights protection [was] fully supranationalised’.178 In other examples, Member States may be granted greater discretion, and thus the EU may 170  Somek (n 15) 180; see also Dawson (n 49) 5–​7. 171  Somek (n 15) 181–​83. 172  ibid 188. 173  On the ECHR, see further Helfer (n 153) 128–​30. Helfer stresses that even in the context of the ECHR, the evolution of the type of problems brought before the ECtHR weakens the persuasiveness of treating the mechanism as subsidiary. 174  See further Lord Hoffmann, ‘The Universality of Human Rights’ (Judicial Studies Board Annual Lecture, 19 March 2009), 12; and Robert Spano, ‘Universality or Diversity of Human Rights? Strasbourg in the Age of Subsidiarity’ (2014) 14 Human Rights Law Review 487, 493. Nuancing the distinction between the EU and the ECHR, see Giuseppe Martinico, ‘Is the European Convention Going to Be “Supreme”? A Comparative-​Constitutional Overview of ECHR and EU Law before National Courts’ (2012) 23 EJIL 401. 175  Besselink (n 39) 664. 176  Stefano Melloni v Ministerio Fiscal [2013] ECLI:EU:C:2013:107. 177  Council Framework Decision 2002/​584/​JHA of 27 November 2008 on the European arrest warrant and the surrender procedures between Member States [2002] OJ L190/​1. 178  Daniel Thym, ‘Separation versus Fusion—​or: How to Accommodate National Autonomy and the Charter? Diverging Visions of the German Constitutional Court and the European Court of Justice’ (2013) 9 EuConst 391, 402.

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well be acting as a more ancillary organ. This is illustrated aptly by the Fransson case in which, although the Court asserted its jurisdiction over the matter, the actual implementation of the effect of the fundamental right at hand was left to the domestic court.179 Yet, as Daniel Thym puts it, in both Melloni and Fransson, the Court determined the freedom of action of the Member States, unlike the European Court of Human Rights (ECtHR) where greater leeway is usually left to constitutional courts or domestic authorities.180 Whenever the EU exercises a fundamental rights competence, such as in the field of equal treatment, the EU may provide minimum as well as high levels of protection—​thus clearly departing from an ancillary role.181 EU legislation that gives expression to a fundamental right largely harmonizes the way in which a fundamental right has to be conceptualized and implemented. The strong harmonizing power of EU legislation giving expression to a fundamental right is epitomized by the controversies triggered by the Court’s rulings in Achbita182 and Bougnaoui.183 These first two preliminary rulings on private employment, triggered by allegations of discrimination on the grounds of religion or belief, were rendered on the same day. They allowed the Court to spell out its understanding of the relevant provisions of the Framework Employment Directive. Without delving into the details of the cases, it is worth noting that the Court clarified several aspects of the fundamental right not to be discriminated against on the grounds of religion or belief. The Achbita ruling is the most interesting for our purposes. To start with, the Court took a broad approach to the scope of the notion of ‘religion’, which is not defined in the Directive itself. It should cover both ‘the forum internum, that is the fact of having a belief, and the forum externum, that is the manifestation of religious faith in public’.184 Second, the Court considered that an internal rule referring to the wearing of visible signs of political, philosophical, or religious beliefs, and therefore the covering of any manifestation of such beliefs without distinction, does not constitute direct discrimination.185 In Achbita, the application of this rule led to the dismissal of women wearing an Islamic headscarf; but the Court noted that it was not evident from the file that the internal rule was applied differently to certain workers.186 Third, the Court stated that, were the national court to conclude that the rule at hand introduces a difference of treatment indirectly affecting a person due to her religion or belief, a policy of neutrality must be considered legitimate in relations with both public and private sector customers.187 The employer’s wish to project an image of neutrality ‘relates to the freedom to conduct a business that is 179  Åklagaren v Hans Åkerberg Fransson [2013] ECLI:EU:C:2013:280; Thym (n 178) 403. 180  Thym (n 178) 405–​06. See also Krisch (n 119) 214. 181  See eg Advocate General Poiares Maduro, S Coleman v Attridge Law and Steve Law [2008] ECLI:EU:C:2008:61, para 24. 182  Samira Achbita and Centrum voor Gelijkheid van Kansen en voor Racismebestrijding v G4S Secure Solutions NV [2017] ECLI:EU:C:2017:203. 183  Asma Bougnaoui and Association de Défense des Droits de l’Homme (ADDH) v Micropole SA [2017] ECLI:EU:C:2017:204. 184  Samira Achbita and Centrum voor Gelijkheid van Kansen en voor Racismebestrijding v G4S Secure Solutions NV [2017] ECLI:EU:C:2017:203, para 28. 185  ibid paras 30 and 32. 186  ibid para 31. 187  ibid para 37.

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recognised in Article 16 of the Charter’.188 Fourth, the fact that workers are prohibited from visibly wearing signs of political, philosophical, or religious beliefs is appropriate to achieve the legitimate objective thereby identified, provided that that policy is genuinely pursued in a consistent and systematic manner.189 Fifth, it must be ascertained whether the prohibition covers only workers who interact with customers, in which case the prohibition must be considered strictly necessary.190 In the case of a worker refusing to give up wearing an Islamic headscarf in such circumstances, it is for the referring court to ascertain whether, taking into account the inherent constraints to which the undertaking is subject, and without the employer being required to take on an additional burden, it would have been possible to offer her a post not involving any visual contact with those customers.191 The ruling has attracted criticisms. Among others, it has been argued that in adopting an approach based on indirect discrimination, the Court turns a blind eye on the special weight that such rules—​even formulated in neutral terms—​will have on Muslim women. It has also been noted that by elevating the right of the employer to project an image of neutrality to the rank of fundamental right, and framing the proportionality test in such a way that women wearing a headscarf could legitimately be sent to the back office, the Court prevented Member States from adopting policies requiring employers to be more open.192 Similarly, national judges may, in principle, no longer prevent undertakings from justifying a ban on visible signs on the grounds of corporate neutrality if formulated in a neutral way and specific to contacts with clients.193 Irrespective of the normative choices made by the Court in this context, it should be noted that the institutional setting of the dispute placed the Court in a remarkably delicate situation. One day or another, legislation giving expression to a fundamental right—​as any other piece of legislation—​will require interpretation. The resulting interpretation bears the harmonizing power of the said piece of legislation, and may therefore dictate a detailed and uniform understanding of a fundamental right which will be applied across the EU in both horizontal and vertical relationships. The criticisms against the ruling become all the more intense that the ruling severely constrains the domestic sphere in its ability to articulate its vision of fundamental rights. Which EU law concepts could be used to address such concerns? Cloots has suggested that the Court could be more deferential towards domestic courts and enable each Member State to have discretion194 when interpreting legislation regulating fundamental rights at a domestic level. This approach can be supported by reference to Article 4(2) TEU, according to which the EU shall respect the national identities ‘inherent in their fundamental structures, political and constitutional’. The concept of national identity is thus a tool that can be used to support self-​restraint in 188  ibid para 38. 189  ibid para 40. 190  ibid para 42. 191  ibid para 43. 192 See, for instance, Eleanor Spaventa, ‘What is the Point of Minimum Harmonization of Fundamental Rights? Some Further Reflections on the Achbita Case’ (2017) EU Law Analysis. 193  Elke Cloots, ‘The CJEU’s Headscarf Decisions: Melloni Behind the Veil?’ (2017) Verf Blog. 194 ibid.

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judicial interpretation of legislative texts.195 Along these lines, the French government in the Achbita case argued that Article 4(2) TEU ‘requires . . . that the application of that directive must not adversely affect the national identities of the Member States’ (emphasis added).196 National identity ‘must be duly taken into account in the interpretation of the principle of equal treatment [enshrined in the Framework Employment Directive] and of the grounds of justification for any differences of treatment’.197 Yet, there was uncertainty as to whether the claim of national identity could be used in the same way to defend diversity of national approaches in the public and private sphere.198 In this context, national identity is used to call for judicial self-​restraint in the interpretation of legislation giving expression to fundamental rights, and thereby to temper the corrosive effects of that legislation on domestic fundamental principles.199 A counter-​argument to these claims is that, in the EU legal order, the role of the Court is to provide clear guidance on the interpretation of EU law. Both an integrationist vision of the EU legal order and arguments drawn from legal certainty call for a uniform interpretation of EU legislation across participating Member States. The tension between the two lines of reasoning—​one asking for deference and the other for uniformity and clarity—​is particularly salient in relation to the interpretation of legislation giving expression to a fundamental right. Such an exercise indeed crystallizes the structural difference between subsidiary forms of fundamental rights protection (such as the ECHR and ECtHR) and the harmonizing powers of EU legislative intervention.

4. The supranationalization of equality law-​making in the EU Despite the ability of EU law to be highly intrusive in domestic spheres, and the difficulty of concepts such as subsidiarity (as defined in EU law) and national identity to accommodate claims to diversity within EU law-​making, there has been a strong call for the development of an EU fundamental rights policy at the European level. Although this has not (to date) succeeded in such general terms, remarkable developments have taken place in specific fields, such as that of EU equality policy. As noted earlier, unlike most other EU policies, the substance of EU equality law is not inherently transnational. Yet, both sides of the argument made by Walker (at section C.1) could explain the appeal to ‘upload’ or ‘Europeanize’ equality policy: (i) 195  Elke Cloots, National Identity in EU Law (OUP 2015) 323–​26 and 327–​29. 196  Opinion of Advocate General, Samira Achbita and Centrum voor gelijkheid van kansen en voor racismebestrijding v G4S Secure Solutions NV [2016] ECLI:EU:C:2016:382, para 32. 197  ibid para 32. 198 In Achibta, the French government had only relied on the national identity argument in relation to employment in the public service, while the Advocate General proposed to extend the claim in relation to private employment by reference to the constitutional principle of secularism in certain Member States: ibid paras 31 and 125. 199  National identity can also guide legislative intervention: Member States within the Council may, for instance, call for restraint to protect their identity. In that sense it performs a function comparable to that of subsidiarity upstream of the decision-​making process; yet, to date it has not been used to support the invalidity of EU legislation.

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this may enhance the legitimacy of the EU by calling for greater democratic debate, and (ii) it would counterbalance the economic focus of the EU. This is very much the narrative that was relied upon in the 1990s to support the insertion of what is today Article 19 TFEU in the EU Treaties. It has been observed that the insertion of this provision in the EU Treaties was perceived by the Member States ‘comme une façon peu coûteuse de paraître “politiquement correct” ’ (‘as an inexpensive way to appear “politically correct” ’).200 Adoption of the first two directives on this basis (the Racial Equality Directive and the Framework Employment Directive) has been remarkably rapid. Pro-​active work from the non-​governmental sector, political reactions to the accession to power of Haider’s party in Austria, and with a strong desire to assert common European values contributed to the swift adoption of these instruments.201 The process of expansion of EU equality law came to a halt at the political level in 2008, when the Commission tabled its last proposal for new legislation.202 While the EU would be competent to go further than it currently does on equality matters, there has been a retrenchment from the political momentum of the late 1990s. There may be a multiplicity of reasons for this. First, an abrupt change of political climate may have been triggered by the economic and financial crisis, as well as the rise of Eurosceptic parties in several Member States.203 Second, it may be that rulings of the Court expanding the scope or impact of EU equality legislation on domestic legal orders have made EU political institutions, or some of their components, reluctant to legislate further in this field.204 Third, there may be a feeling that the EU is not the appropriate forum to undertake further development of an equality policy. In particular, the weighing of interests performed at the European level may not be deemed appropriate. For instance, economic freedoms may be too severely constrained by European equality rules.205 This last point is heavily debated by academics in Germany, which is the source of the strongest opposition to the 2008 Commission.206 While certain traits of this retreat relate to macro-​political considerations that are beyond the scope of this book, others are closely related to the criticisms expressed against the general dynamics of EU human rights architecture as just discussed. Criticism of the EU legislative process, and the actual harmonizing power of 200  Virgine Guiraudon, ‘Construire une politique européenne de lutte contre les discriminations’ (2004) 53 Sociétés Contemporaines 11, 18. 201  Inspection Générale des Affaires Sociales, ‘Rapport annuel 2006: La dimension européenne des politiques sociales’ (La documentation française) (2006), 419–​23; Guiraudon (n 200) 23–​24. 202  Commission (EC), ‘Proposal for a Council Directive on implementing the principle of equal treatment between persons irrespective of religion or belief, disability, age or sexual orientation’ COM (2008) 426 final, 7 July 2008. The text was still under discussion at the Council in 2017. 203  Note that this does not seem to be the case in Germany, which was the source of much of the reluctance to expand the scope of EU equality legislation. 204  Such case law is discussed further in Chapter 3. 205  eg Norbert Reich, ‘The Impact of the Non-​Discrimination Principle on Private Autonomy’ in Dorota Leczykiewicz and Stephen Weatherill (eds), The Involvement of EU Law in Private Relationships (Hart Publishing 2013). Further illustrating the tension between equal treatment rights and other values, see McColgan (n 93) 64–​65. 206  See further Chapter 5, section B.1.

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legislation, as well as the engineering role of the Court, may feed into resistance at a domestic level. Subsidiarity may also be relied upon to explain current opposition to the further expansion of EU equality law. The sudden halt in the process of the expansion of EU equality law brings the principle to the fore. As already explained, the notion of subsidiarity, as it is currently defined in EU law, lacks the conceptual clarity to articulate the relationship between EU and domestic legal orders on matters of fundamental rights protection.207 Nevertheless, couched in general political terms, subsidiarity arguments express a genuine discomfort with certain aspects of EU equality law-​making. Although currently halted at legislative level, the Europeanization of equality law remains undeniable and vast. In that sense, equality law understood as a fundamental rights policy benefits from the powerful infrastructures of EU law, with its harmonizing power and supremacy over domestic law. For such a project to remain a source of cohesion, as hoped for by the proponents of stronger EU intervention on fundamental rights matters, this policy ought to accommodate claims to diversity and national sensitivities. Given that the EU principle of subsidiarity and the concept of national identity are ill-​suited to address such concerns, it is particularly important to locate disagreement on the elaboration of the relevant fundamental rights at the core of political processes (see Chapters 3 and 4), as well as to reflect on how to engage directly with domestic arenas (see Chapter 5).

D.  Conclusions: The Political Dimension of EU Equality Law-​Making This chapter has reviewed fundamental rights law-​making from three perspectives. First, there was a historical overview of the processes through which fundamental rights have been regulated in modern history. The novelty lies in the process through which fundamental rights are increasingly being ‘downloaded’, to the effect that political decisions are made through ‘ordinary’ EU law to put flesh on the bones of a fundamental right. Second, the doctrinal debate was set out, and the views of supporters of constitutional forms of protection were contrasted with those of authors in favour of giving some leeway to political institutions elaborating fundamental rights though legislation. Much emphasis was placed on the deeply political nature of fundamental rights law-​making in modern constitutionalism. Finally, the additional complexity created by the multilayered nature of the legal order in which downloading processes take place in the European context was sketched out. We recalled the atypical—​arguably messianic—​rationale for regulating fundamental rights at the EU level, as well as the highly intrusive nature of EU intervention in domestic spheres in this field. All three angles complement each other. The downloading of fundamental rights protection is a process called for by constituent powers to allow the political sphere to reflect on the function performed by a fundamental right in a given 207  See section C.2.

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legal order, on the scope of political intervention needed, and on the means of action. In creating opportunities to download, constituent powers purportedly transfer authority to political institutions to substantiate a fundamental right: meeting Waldron’s as well as Somek’s call to give some leeway to the putting into effect of fundamental rights through legislative processes. In the context of the EU, this invitation to download fundamental rights protection is all the more important as it has implications for the vertical allocation of powers between the EU and its Member States. Given that the rationale for EU intervention on such matters is inherently political and intended to contribute to the legitimacy of the Europeanization process as a whole, the delineation of supranational intervention in the field is particularly important. Whether we look at fundamental rights law-​making as entering a new stage in terms of its historical evolution, as a subject of inter-​institutional tensions within a legal order, or as a controversial domain of supranational intervention, much emphasis is being placed on the political tensions underlying the process. This emphasis has been met most clearly in the context of EU equality law by the insertion of Article 19 TFEU in the European constitutional norm, to which we will now turn in greater detail. Indeed, this article is both the broadest and most explicit transfer of competences and powers for the EU to develop fundamental rights instruments. Such law-​making is to be placed in the hands of political institutions. Yet, Article 19 TFEU does not operate in isolation. It coexists with a vast array of other norms that may shed light on, or blur, the political mandate contained therein, hence the need to map out this mosaic of instruments at the outset. It would be expected that a healthy EU fundamental rights policy, such as that called for by Article 19 TFEU, should be built on two pillars. First, the constitutional value of the rights protected ought to be maintained in order to ensure compliance with the initial and legitimate objective of uploading fundamental rights protection. Second, the political dimension of decision-​making on the matter ought to be acknowledged and respected. This is requested by the relevant constitutional framework but is also necessary to address disagreement on policy-​making in the field through appropriate dialogue and to ensure the legitimacy-​building function of the relevant policy. As pointed out previously, this is not to say that EU legislation giving expression to fundamental rights shall be subject to no judicial review or no constitutional interpretation. The point is more nuanced—​where the EU decision-​ making process is functioning normally, with a clear legal basis and full legislative process, judicial deference may be justified.208 Yet, as we have seen, political processes may not easily be disconnected from their constitutional framework, especially in an intensely constitutionalized legal order such as that of the EU. This creates a risk that the dynamics inherent to the EU legal order and to the powerful dynamics of uploading of fundamental rights protection could pre-​empt, hinder, or hijack attempts at addressing important questions on 208  Dawson (n 49) 35 and 80.

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the function, scope, and tools for fundamental rights protection through political dialogue. We have also noted that the language of fundamental rights may hinder, if not prevent, political discussions on key corrective, regulatory, and distributive choices. We will now illustrate how these challenges have materialized in the context of EU equality law.209

209  As defined in Chapter 1.

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3 EU Equality Law at a Constitutional Crossroads This chapter applies the parameters of the doctrinal debate on the role of various actors in shaping fundamental rights protection in the EU legal order, as just examined, to EU equality law. In the context of EU law, the players in charge of shaping fundamental rights law and the functions performed by different legal tools are atypical when compared to those involved in domestic or international legal orders. The fact that the constituent powers regularly seek to broaden the ambit of this policy field points to a truism: EU equality law is finite. Unlike the meta-​principle of equality, policies designed to further equality among people are shaped by a tight legal framework. Each prong of equality law identifies specific grounds of differential treatment as well as specific fields in which differences of treatment are suspected. Differences of treatment on grounds other than those identified or in other fields than those covered fall outside the scope of EU equality law. For instance, until a decade ago, EU equality law addressed sex discrimination but not discrimination on grounds of sexual orientation, which was deemed to be a distinct concept.1 EU equality law is also fragmented. The constitutional framework for the adoption of the relevant tools is defined by a mosaic of provisions spread across the Treaty on the Functioning of the European Union (TFEU or ‘the Treaty’). As a consequence, different legal bases, institutions, and procedures define the contours of the corresponding branches of EU equality law. Furthermore, the precise applicable legal tools may—​and often do—​differ from one ground to another and from one field to another. The rules on sex equality in employment are, for instance, distinct from those relating to statutory social security schemes. EU equality law specifies for (i) each ground, (ii) the fields in which the prohibition of discrimination applies, and (iii) the corresponding legal regime without it being possible to dissociate the three elements. The definition of grounds and fields is therefore a precondition to the identification of the relevant legal instruments; and upstream, identification of the relevant constitutional provisions has a decisive influence on the way in which rules are being shaped. We ought to identify more precisely the main components of this legal framework (see section A) before considering the inter-​institutional tensions that the 1 eg Grant v South-​West Trains Ltd [1998] ECLI:EU:C:1998:63, para 47. EU Equality Law: The First Fundamental Rights Policy of the EU. Elise Muir © Elise Muir 2018. Published 2018 by Oxford University Press.

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‘downloading’2 of the fundamental right to equal treatment has created. This will indeed allow for a critical examination of case law illustrating the peculiar interplay between political institutions and the judiciaries at both the EU and national levels in the shaping of EU equality law (see section B). As the boundaries between EU primary and secondary law are increasingly blurred in this field, the important role of EU political institutions in defining the scope and content of EU fundamental rights intervention will be recalled.

A.  Plurality in the Making of EU Equality Law: Mapping Provisions, Their Functions, and Key Actors The complexity created by the fragmentation of EU equality law has several origins.3 A first set of reasons relates to the nature of the EU legal order. EU competences to develop an equality policy have only progressed in stages. Although today’s version of the TFEU includes a Part entitled ‘Non-​Discrimination and Citizenship of the Union’, with a prohibition on nationality discrimination (Article 18 TFEU) directly followed by an enabling provision to combat discrimination on grounds of sex, racial or ethnic origin, religion or belief, disability, age, or sexual orientation (Article 19 TFEU), multiple expressions of the prohibition of discrimination are spread throughout the Treaty. In particular, Article 157 TFEU concerns equal treatment between men and women in matters of employment and occupation. There are also external constraints affecting the shape of equality law. EU law is influenced by several international instruments on fundamental rights, such as the European Convention on Human Rights (ECHR)4 and the United Nations Convention on the Rights of Persons with Disabilities, since December 2010.5 A second set of reasons is more specific to equality policy as such. For certain Member States, the very choice of equality law as a tool to address social injustices has demanded a significant shift of regulatory paradigm that contributes to explaining the gradual approach adopted at the European level. In France, for instance, illegitimate differential treatment was primarily a problem tackled through criminal law but not through employment and civil law; the EU approach thus demanded profound legal changes.6 Besides, the specific need to structure this discipline by reference to different grounds is in fact dictated by the distinct characteristics of each of these grounds and the perception thereof. For instance, while anti-​discrimination 2  As described in Chapter 2. 3  Further elaborating on the main features of EU equality law as introduced here:  Elise Muir, ‘Pursuing Equality in the EU’ in Anthony Arnull and Damian Chalmers (eds), The Oxford Handbook of European Union Law (OUP 2015) 919. 4  eg Article 14 Convention for the Protection of Human Rights and Fundamental Freedoms (as amended), Protocol 12 ECHR. 5  This is further discussed later. 6  Sophie Latraverse, ‘Le droit français en matière de discriminations’ in Sophie Latraverse (ed), Pour une société plus juste: Le droit international, communautaire et française en matière de discriminations (Organisation Internationale pour les Migrations 2004) 126. See further Chapter 5, section B.

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law is usually symmetrical in so far as the two groups (such as men and women) should in principle be treated in the same way, disability discrimination is often said to be asymmetrical. The specific situation of disabled people generally justifies that they be protected while the reverse is not true.7 Similarly, the prohibition of age discrimination is atypical in so far as, as a matter of fact, everyone will experience being part of a different age group.8 As a consequence, policy-​makers may be given a certain leeway in structuring age-​related policies. It may also be argued that practice or conduct based on religion or conviction is—​unlike physical features or personal characteristics such as gender,9 skin colour, ethnic origin, age, disability, or sexual orientation—​an aspect of private life based on a subjective decision. As such, the exercise of religion or convictions may be understood as a fact on which one can choose to exert an influence so as to ensure a delicate balance with other interests at hand.10 More generally, the limits of equality policy ought to be understood in the light of other forms of intervention in favour of disadvantaged groups11 as well as in the context of the relationship between the right to equal treatment and other fundamental rights. The legislature may, for instance, be reluctant to expand the scope of equality law where the duty of non-​discrimination leads to a head-​on conflict with the freedom to conduct a business or the fundamental right to private autonomy.12 Furthermore, in the more specific context of EU law, the level of political support for equality legislation is affected by the perception that the EU should focus on economic integration, leading constituent powers to be more reluctant to support intervention in non-​economic domains such as access to housing or education; hence the requirement that the legal basis of Article 19(1) TFEU be used only ‘within the limits of the powers conferred by the [Treaties] upon the Union’13—​such powers being predominantly concerned with economic law. (As will be discussed further, this aspect of Article 19(1) TFEU has, however, not prevented EU intervention in this field to deal with non-​economic aspects of individuals’ lives.) As it stands, EU equality law features several types of constitutional provisions giving expression to the meta-​principle of equal treatment. These provisions complement and interact with one another and can best be introduced by reference to the function that they perform in the EU legal order. A first category of instruments are classic expressions of a fundamental right at constitutional level,14 in so far as 7  Lisa Waddington, ‘Implementing the Framework Employment Directive’ in Anna Lawson and Caroline Gooding (eds), Disability Rights in Europe, From Theory to Practice (Hart Publishing 2005) 113–​17. 8  See further Peter H Schuck, ‘The Graying of Civil Rights Law: The Age Discrimination Act of 1975’ (1979) 89 Yale LJ 27, 82. 9  Save in exceptional circumstances. 10  eg Advocate General’s Opinion, Samira Achbita and Centrum voor Gelijkheid van Kansen en voor Racismebestrijding v G4S Secure Solutions NV [2016] ECLI:EU:C:2016:382, paras 45 and 116. 11 See further Sandra Fredman, Human Rights Transformed:  Positive Rights and Positive Duties (OUP 2008). 12  eg Advocate General’s Opinion, Samira Achbita and Centrum voor Gelijkheid van Kansen en voor Racismebestrijding v G4S Secure Solutions NV [2016] ECLI:C:2016:382, paras 81 and 134 and see Chapter 5, section B. 13  See also Chapter 2, section A.2; and section A of this chapter. 14  See Chapter 2, section A.1.

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they are intended to protect individuals against the arbitrariness of public intervention (see section A.1.a). A second category of tools act both as a constitutional check and as a (constitutional) competence tool; they may be used as constitutional benchmarks within the classic meaning while also constituting the expression and exercise of an EU competence (see section A.1.b). A third category consists of enabling articles; they create a competence to be exercised by EU political institutions (see section A.1.c).

1. The prohibition of discrimination as a constitutional check The first set of provisions that demonstrate the principle of equality in EU constitutional law act as benchmarks against which the actions of public entities within the EU legal order, whether at the EU or domestic level, may be checked. These provisions also serve as a source of inspiration for the dynamic interpretation of lower instruments. As with other fundamental rights, the prohibition of discrimination is protected through a combination of written and unwritten constitutional sources—​understood as sources having the value of primary EU law or largely performing a comparable function in the EU legal system.

(a) The general principle of equality The initial European Economic Treaty did not provide for a specific system for the protection of individuals’ rights against possible arbitrariness from the European institutions or Member States acting within the scope of European law. Yet, the Court of Justice of the European Union (‘the Court’) filled that lacuna by asserting that fundamental rights formed an integral part of the general principles of Community—​now Union—​law whose observance the Court ensures,15 as is clear today from Article 6(3) TEU. This unwritten source of protection is inspired by the constitutional traditions common to the Member States.16 International treaties for the protection of human rights on which the Member States have collaborated, or of which they are signatories, can also ‘supply guidelines to be followed’ within EU law.17 In that respect the ECHR, and in particular its Article 14 (prohibition of discrimination in the enjoyment of the rights and freedoms set forth in the Convention) and Protocol 12 (general prohibition of discrimination), play a

15  Internationale Handelsgesellschaft mbH v Einfuhr-​und Vorratsstelle für Getreide und Futtermittel [1970] ECLI:EU:C:1970:114, para 4. The formula was repeated on numerous occasions after that and extended to apply as a check not only against EU institutions but also against Member States acting within the scope of Union law: Elliniki Radiophonia Tiléorassi AE and Panellinia Omospondia Syllogon Prossopikou v Dimotiki Etairia Pliroforissis and Sotirios Kouvelas and Nicolaos Avdellas and others [1991] ECLI:EU:C:1991:254, para 42. 16  J Nold, Kohlen-​und Baustoffgroßhandlung v Commission of the European Communities [1974] ECLI:EU:C:1974:51, para 13; and now Article 6(3) TEU. 17  J Nold, Kohlen-​und Baustoffgroßhandlung v Commission of the European Communities [1974] ECLI:EU:C:1974:51, para 13.

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specific role.18 A recent attempt at implementing the EU’s duty to access the ECHR by virtue of Article 6(2) TEU having failed,19 the status of the law of the ECHR in the EU to date remains unchanged.20 The general principle of equality is one of the fundamental principles of EU law. According to an early statement from the Court on this principle, in the context of the common agricultural policy, the principle of equality requires that similar situations shall not be treated differently unless differentiation is objectively justified.21 More specifically, the Court has further stated that ‘there can be no doubt that the elimination of discrimination based on sex forms part of . . . fundamental rights’, the observance of which the court must ensure.22 The prohibition of age discrimination must also be regarded as a general principle of EU law.23 In other words, the prohibition of discrimination on specific grounds such as sex or age seem to constitute mere expressions of the principle of equal treatment,24 all deserving constitutional protection.

(b) Equality in the Charter of Fundamental Rights of the European Union The general principle of equal treatment now coexists with the Charter of Fundamental Rights of the European Union (CFEU or ‘the Charter’) which has the same legal value as the Treaties.25 The Charter provides several manifestations of the principle of equality. To start with, Article 20 CFEU states that everyone is equal before the law, and thus acts as an ‘umbrella’ function in a similar way to the broad version of the general principle of equal treatment. The equality before the law clause is complemented by three more specific expressions of the principle of equality. First, Article 21(1) CFEU provides for an open-​ ended list of prohibited grounds of discrimination, including sex, race or ethnic origin, religion or belief, age, sexual orientation, and disability, on which the EU may also enact legislation by virtue of Article 19 TFEU as well as Article 157 TFEU. Yet, Article 21(1) CFEU also covers other grounds than those included in specific legal bases (colour, social origin, genetic features, language, political or any other opinion, membership of a national minority, property, birth), and is not exhaustive. 18  J Nold, Kohlen-​und Baustoffgroßhandlung v Commission of the European Communities [1974] ECLI:EU:C:1974:51, para 12; and now Article 6(3) TEU. 19  Opinion of the Court on Accession of the European Union to the European Convention for the Protection of Human Rights and Fundamental Freedoms ECLI:EU:C:2014:2454. 20  JN v Staatssecretaris voor Veiligheid en Justitie [2016] ECLI:EU:C:2016:84, paras 45–​46. 21  Albert Ruckdeschel & Co and Hansa-​Lagerhaus Ströh & Co v Hauptzollamt Hamburg-​St Annen; Diamalt AG v Hauptzollamt Itzehoe [1977] ECLI:EU:C:1977:160, para 7. 22  Gabrielle Defrenne v Société anonyme belge de navigation aérienne Sabena [1978] ECLI:EU:C:1978:130, para 27. 23  Werner Mangold v Rüdiger Helm [2005] ECLI:EU:C:2005:709, para 75. 24  ibid para 76. Note that to date, the Court has carefully avoided referring to a possible general principle prohibiting discrimination on grounds of sexual orientation (see Tadao Maruko v Versorgungsanstalt der deutschen Bühnen [2008] ECLI:EU:C:2008:179; Jürgen Römer v Freie und Hansestadt Hamburg [2011] ECLI:EU:C:2011:286; Frédéric Hay v Crédit Agricole Mutuel de Charente-​Maritime et des Deux-​ Sèvres [2013] ECLI:EU:C:2013:823. 25  Article 6(1) TEU.

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Second, Article 21(2) CFEU duplicates Article 18(1) TFEU26 and specifies that discrimination on the ground of nationality is subject to a specific legal regime in so far as it is only prohibited ‘within the scope of application of the Treaties and without prejudice to any of their specific provisions’. As will be further discussed in this chapter, the prohibition of discrimination enshrined in EU law has indeed so far been understood as only being applicable to EU citizens27 in cross-​border situations, and as regards a specific set of circumstances. This is why the drafters of the Charter wanted to prevent the Charter from being used to extend the scope of the relevant treaty rules.28 Third, Article 23 CFEU is specifically devoted to equality between women and men in all areas, including employment, work, and pay. The second recital makes it clear 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’. This article is thus partly redundant in the light of Article 21(1) CFEU, which includes non-​discrimination on grounds of sex. Nevertheless, the wording in terms of ‘equality’ instead of ‘non-​discrimination’29 and the proviso on positive action act as a vivid reminder of the long history of case law and legislative developments in the field of sex equality in employment, work, and pay.

(c) EU membership of select international human rights treaties As mentioned earlier, international human rights treaties on which the Member States have collaborated or to which they are signatories can supply guidelines to be followed within EU law. They are sources of inspiration for the Court to assert the existence of general principles of EU law.30 As also noted previously, since the Lisbon Treaty entered into force it has also been expected that the EU ‘shall’ accede to the ECHR, but this has not happened yet.31 In addition, the EU can sign international agreements in its areas of competence.32 An example is the recent accession of the EU to the United Nations Convention on the Rights of Persons with Disabilities (UNCRPD). International treaties to which the EU is a party are binding on EU institutions and Member States by virtue of EU law and within the scope of EU law.

26  Article 18(1) TFEU has been present since the origins of the European Economic Community in the form of Article 7(1) of the Treaty Establishing the European Economic Community (TEEC). 27  And third-country nationals in very specific circumstances (family members or posted workers). 28  Although this may be redundant given the wording of Article 6(1) Recital (2) TEU and Article 51(2) CFEU. 29  On the possibility to read substantive nuances in the distinction between ‘non-​discrimination’ and ‘equality’, see Chapter 1, section D.3. 30  J Nold, Kohlen-​und Baustoffgroßhandlung v Commission of the European Communities [1974] ECLI:EU:C:1974:51, para 13. 31  See the Opinion of the Court, Accession by the Community to the European Convention for the Protection of Human Rights and Fundamental Freedoms [1996] ECLI:EU:C:1996:140; Article 6(2) TEU; and the Opinion of the Court, Accession of the European Union to the European Convention for the Protection of Human Rights and Fundamental Freedoms [2014] ECLI:EU:C:2014:2454. 32  Article 216 TFEU.

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Such treaties therefore contribute to the network of norms that have traditional fundamental rights functions. The UNCRPD is the first human rights treaty which the EU negotiated, signed, and ratified.33 It is also the most progressive international human rights treaty to date. It combines provisions on non-​discrimination with a set of rights. Its purpose is to ‘promote, protect and ensure the full and equal enjoyment of all human rights and fundamental freedoms by all persons with disabilities, and to promote respect for their inherent dignity’.34 This ambitious array of aims is matched by a particularly dynamic definition of the notion of persons with disabilities: it includes a broad range of impairments35 which ‘in interaction with various barriers may hinder their full and effective participation in society on an equal basis with others’.36 This definition reflects a model that places emphasis on the failures of society to meet the needs and aspirations of persons with disabilities37 instead of focusing on the person alone. The innovative nature of such a definition is particularly important because it is the only definition of disability found in EU law. It has already had a significant impact on the Court’s case law on the definition of disability.38 By virtue of Article 5 UNCRPD, parties to the Convention shall prohibit all discrimination on the ground of disability and guarantee to persons with disabilities equal and effective legal protection against discrimination on all grounds.39 Furthermore, disability discrimination includes denial of reasonable accommodation40 and parties to the Convention shall take all appropriate steps to ensure the provision of reasonable accommodation.41 Mention is made of positive actions, as ‘specific measures which are necessary to accelerate or achieve de facto equality of persons with disabilities shall not be considered discrimination’.42 Specific provisions relate to multi-​discrimination, which might be suffered by women or children with disabilities.43 Others set out the very broad material scope of the Convention. It covers not only classical civil rights, such as access to justice44 or employment (Article 27), as is common for EU anti-​discrimination law, but also education (Article 24), health (Article 25), and the standard of living and social protection (Article 28), all of which may interact with EU anti-​discrimination law in the future. An important provision is Article 9, which relates to the parties’ duty to ensure 33 Council Decision (EC) 2010/​48 of 26 November 2009 concerning the conclusion, by the European Community, of the United Nations Convention on the Rights of Persons with Disabilities [2010] OJ L23/​35. 34  Article 1(1) UNCRPD. 35  Long-​term physical, mental, intellectual, or sensory impairments in accordance with Article 1(2) UNCRPD. 36  Article 1(2) UNCRPD. 37  Lisa Waddington, ‘A New Era in Human Rights Protection in the European Community: The Implications the United Nations’ Convention on the Rights of Persons with Disabilities for the European Community’ (2007) 4 Maastricht Faculty of Law, Working Paper 4. 38  For a critical overview see Lisa Waddington, ‘Saying All the Right Things and Still Getting It Wrong: The Court of Justice’s Definition of Disability and Non-​Discrimination Law’ (2015) 22 MJ 576. This will be discussed further. 39  Article 5(2) UNCRPD. 40  Article 2(3) UNCRPD. 41  Article 5(3) UNCRPD. 42  Article 5(4) UNCRPD. 43  Articles 6 and 7 UNCRPD. 44  Article 13 UNCRPD.

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persons with disabilities can access a broad range of aspects of social life, such as transportation, information, and communications, in both urban and rural areas. The UNCRPD plays a role that is similar to that of general principles and the Charter.45 Indeed, international agreements to which the EU is party rank higher than EU secondary law, take primacy over domestic law, and therefore provide binding interpretative guidance.46 The Court has declined to examine whether the ‘nature and the broad logic’ of this international treaty would permit a review of the validity of the EU legal acts against it.47 Instead, the Court highlighted the ‘programmatic’ nature of the provisions of the Convention addressed to contracting parties48 and therefore the inability of these provisions to qualify as ‘unconditional and sufficiently precise’ in order to meet the direct effect criteria.49 Consequently, the Court has refused to review the validity of EU secondary legislation in some preliminary ruling procedures in which private litigants wished to rely on the UNCRPD.50 Influential authors, such as Waddington, argue that the Convention should have effects that go beyond those suggested above.51 She has scrutinized the process by which the EU became a member of this Convention and its implications for the EU legal order. The competence of the EU to become a member of the UNCRPD alongside the Member States resulted primarily from Article 19 TFEU. This article (inserted into EU primary law by the Treaty of Amsterdam) empowers the EU to combat discrimination based on disability. Waddington, however, stresses that many other areas in which the EU has competence to act, such as EU internal market or transport policies, also have a ‘disability dimension’. As a consequence, not only does the EU have competence to sign the Convention that goes beyond the

45  Petya Milkova v Izpalnitelen direktor na Agentsiata za privatizatsia i sledprivatizatsionen control [2017] ECLI:EU:C:2017:198, paras 47–​48. 46  These general rules have been applied to the UNCRP in HK Danmark, acting on behalf of Jette Ring v Dansk almennyttigt Boligselskab and HK Danmark, acting on behalf of Lone Skouboe Werge v Dansk Arbejdsgiverforening, acting on behalf of Pro Display A/​S [2013] ECLI:EU:C:2013:222, paras 28–​32; as well as in Z v A Government department and The Board of management of a community school [2014] ECLI:EU:C:2014:159, para 71. 47  Z v A  Government department and The Board of management of a community school [2014] ECLI:EU:C:2014:159, para 90. See also Wolfgang Glatzel v Freistaat Bayern [2014] ECLI:EU:C:2014:350, para 69. These rulings are unclear as to the distinction between the conditions for the direct effect of international agreements and the conditions for a control of the validity of EU secondary law in the light of an international agreement. 48  Z v A  Government department and The Board of management of a community school [2014] ECLI:EU:C:2014:159, para 88; see further Opinion of Advocate General Wahl, delivered on 26 September 2013 in the same case, ECLI:EU:C:2013:604, para 114. 49  Z v A  Government department and The Board of management of a community school [2014] ECLI:EU:C:2014:159, para 90. 50  The procedural framework in which these rulings emerged may have an influence on the impact of the rulings: Z v A Government department and The Board of management of a community school [2014] ECLI:EU:C:2014:159, para 90; and Wolfgang Glatzel v Freistaat Bayern [2014] ECLI:EU:C:2014:350, para 69. As noted, these rulings are unclear as to the distinction between the conditions for the direct effect of international agreements and the conditions for a control of the validity of EU secondary law in the light of an international agreement. 51  See Lisa Waddington, ‘The European Union and the United Nations Convention on the Rights of Persons with Disabilities: A story of Exclusive and Shared Competences’ (2011) 18 MJ 431; and Waddington (n 37).

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scope of Article 19 TFEU but the EU could also be said to have strong incentives under the Convention to take action in a wide range of matters.52 Numerous policy areas affected by the UNCRPD relate to competences that are shared between the EU and the Member States. Waddington argues that, as a result, the Convention’s requirement to set up structures to promote, protect, and monitor the implementation of the Convention warrants an active role for the EU to coordinate the Member States’ actions in these fields.53

(d) Fundamental rights protection within the scope of application of EU law The core function of the principle of equality, protected as a general principle of EU law through the Charter and international treaties, is to act as a traditional fundamental right. The principle protects private parties against the arbitrariness of public entities and influences the interpretation of lower ranking rights. This dimension of the protection of the EU principle of equality results from the process of uploading fundamental rights protection, as described in Chapter 2.54 Importantly, the system of fundamental rights protection thereby established only applies within the EU legal order to ‘the institutions, bodies, offices and agencies of the Union’55 and to the Member States when they act within the scope of Union law.56 In other words, the applicability of EU law entails the applicability of the fundamental rights guaranteed by the Charter. In contrast, where a situation does not fall within the scope of EU law, the Court does not have jurisdiction and EU fundamental rights cannot, in and of themselves, form the basis for such jurisdiction.57 These clarifications on the scope of application of EU fundamental rights, understood in its traditional sense, may be seen as a source of frustration as well as offering promising perspectives. Frustration often arises when situations fall outside the scope of EU law or domestic jurisdictions do not establish the link with EU law clearly enough: that leaves the domestic jurisdiction and claimants without EU benchmarks or guidance on how to address fundamental rights claims.58 Conversely, when the situation falls within the scope of EU law, the protection of equal treatment as part of EU fundamental rights may enable enhancement of the protection

52  Waddington (n 37) 8. 53  Waddington (n 51) 449 et seq. See, for instance, Commission (EU), ‘Proposal for a Directive of the European Parliament and of the Council on the approximation of the laws, regulations and administrative provisions of the Member States as regards the accessibility requirements for products and services’ COM (2015) 615 final, 2 December 2015; see also Petya Milkova v Izpalnitelen direktor na Agentsiata za privatizatsia i sledprivatizatsionen control [2017] ECLI:EU:C:2017:198, paras 47–​48. 54  See Chapter 2, section A. 55  Article 51(1) CFEU. 56  Åklagaren v Hans Åkerberg Fransson [2013] ECLI:EU:C:2013:105, para 19. 57  ibid paras 21–​22. 58 Illustrations involving the principle of equal treatment include:  Sindicato dos Bancários do Norte and others v BPN—​Banco Português de Negócios SA [2013] ECLI:EU:C:2013:149; Sindicato Nacional dos Profissionais de Seguros e Afinscontre Fidelidade Mundial—​Companhia de Seguros SA [2014] ECLI:EU:C:2014:2036; and see further Claire Kilpatrick, ‘Are the Bailouts Immune to EU Social Challenge Because They Are Not EU Law?’ (2014) 10 EuConst 393.

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against discrimination in a wide range of matters, whether or not they are as remote from EU equality policy as the regulation of driving licences or blood donations.59 A point worthy of attention is that the principle of equal treatment is addressed in EU constitutional law in a fragmented way, ie it is expressed in several provisions. This fragmentation is clearly visible through the juxtaposition of Articles 20, 21(1), 21(2), and 23 CFEU, each constituting manifestations of different aspects of the principle of equal treatment. This reflects the historical evolution of EU equality policy introduced earlier and further explained in the next two sections (sections A.2 and A.3). The coexistence of these Charter provisions together with general principles of EU law and international treaties may create confusion as to the sources that are best to use in different claims. One indeed fears that this complex setting triggers ambiguous use of sources or divergent standards of scrutiny.60 These questions will be considered further in this chapter and the next.

(e) Fundamental rights, constituent powers, and the Court Who, then, are the main actors responsible for shaping this dimension of EU fundamental rights protection? It is largely accepted that the Court asserted the constitutional importance of fundamental rights in the EU legal order, despite the original reluctance of the treaty-​makers.61 The assertion of fundamental rights as general principles of EU law is in fact a prime example of intense judicial activity.62 The Court shaped its institutional profile in two ways. It confirmed its position as a guardian of the ‘constitutionality’ of EU acts, thereby enhancing its authority over other EU institutions. Perhaps even more importantly, it asserted its centrality in a sophisticated and novel legal order and in particular in its relationship with Member States, whose actions it was ready to review for compliance with EU fundamental rights standards. In Maastricht, the authors of the Treaties—​ the constituent powers—​ acknowledged that the EU should indeed respect fundamental rights in its action.63 This is why they rubber-​stamped the approach of the Court in its early fundamental rights case law. More recently, the constituent powers formalized the rights protected at EU level by giving the Charter constitutional status in the Treaty of Lisbon.64 The 59 eg Wolfgang Glatzel contre Freistaat Bayern [2014] ECLI:EU:C:2014:350; Geoffrey Léger contre Ministre des Affaires sociales, de la Santé et des Droits des femmes et Etablissement français du sang [2015] ECLI:EU:C:2015:288; Petya Milkova v Izpalnitelen direktor na Agentsiata za privatizatsia i sledprivatizatsionen control [2017] ECLI:EU:C:2017:198. See further later text under ‘(d) Incorporating the outcome of the political process back into the constitutional norm?’ in section B.1. 60  eg Vojtech Belling, ‘Supranational Fundamental Rights or Primacy of Sovereignty? Legal Effects of the So-​Called Opt-​Out from the EU Charter of Fundamental Rights’ (2012) 18 ELJ 251, 255. 61  See the historical research performed in that regard by Gráinne de Búrca, ‘The Evolution of EU Human Rights Law’ in Paul Craig and Gráinne de Búrca (eds), The Evolution of EU Law (2nd edn, OUP 2011). 62  See also Bruno de Witte, ‘The Past and Future Role of the European Court of Justice in the Protection of Human Rights’ in Philip Alston, The EU and Human Rights (OUP 1999) 860 and 865–​66. 63  Article F TEU (Maastricht), see also the new Articles 2 and 6 TEU. 64  Article 6(1) TEU. At the same time, the EU was granted competence and even mandated to accede to the ECHR (Article 6(2) TEU).

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Member States also took an important step forward in concluding a remarkably modern international human rights agreement, the UNCRPD. The shape of the new architecture for the protection of fundamental rights in the EU as it has crystallized since the entry into force of the Lisbon Treaty thus enhances the political legitimacy of fundamental rights protection in the EU. This results from the drafting procedure of the Charter, based on a Convention, as well as from the legal effects given to the Charter and the UNCRPD. Nevertheless, the Court remains in a central position to interpret the Charter as well as articulating the relationship between the Charter, the UNCRPD, general principles of EU law, and other aspects of the process of European integration in matters of fundamental rights protection. This is well illustrated by the Court’s negative opinion on the draft agreement in view of accession of the EU to the ECtHR.65

2. The prohibition of discrimination as a constitutional check and an EU competence A second category of instruments perform a dual function. These instruments are seen as benchmarks against which the activities of EU and national organs falling within the scope of EU law may be reviewed, and in the light of which such activities must be interpreted. In that respect, these treaty provisions largely overlap with both the Charter provisions and the general principle. In addition, such treaty provisions define the scope and content of EU regulatory intervention in domestic policies. This dual function distinguishes this second source of rights and obligations in the field of non-​discrimination from the other categories of instruments which only perform one function at a time. Such ambivalence is characteristic of the specific nature of the EU legal order.66 The normative content of the TFEU often performs the function of a constitutional benchmark. Meanwhile, as a ‘derivative’ legal order,67 the exercise of EU powers depends upon the allocation of specific competences to the EU so that the TFEU provides a set of provisions authorizing EU regulatory intervention. The process of European integration has resulted in embedding an atypical amount of normative content in the very same provisions that define the scope for EU regulatory intervention. This means that the scope and content of EU intervention are often actually merged, leading to an exceptionally high level of constitutionalization.

65  Opinion of the Court, Accession of the European Union to the European Convention for the Protection of Human Rights and Fundamental Freedoms ECLI:EU:C:2014:2454. 66  This is why Tamara Hervey rightly observed in 2005 that EU sex equality law has ‘contributed to our understanding of the nature of EU law’: Tamara K. Hervey, ‘Thirty Years of EU Sex Equality Law: Looking Backwards, Looking Forwards’ (2005) 4 MJ 307, 319. 67  Neil Walker, ‘Human Rights in a Post-​National Order: Reconciling Political and Constitutional Pluralism’ in Tom Campbell, Keith D. Ewing, and Adam Tomkins (eds), Sceptical Essays on Human Rights (OUP 2001) 129.

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(a) Treaty provisions performing a dual function: the prohibition of nationality and sex discrimination in relation to pay Two key sets of provisions perform this dual function:68 they relate to the prohibitions of nationality and to a specific aspect of sex discrimination. Article 45(2) TFEU requires the abolition of any discrimination based on nationality between workers of the Member States in view of the worker’s right to freedom of movement.69 The twins to this Article are the prohibition of restrictions on the freedom of establishment of nationals of a Member State in the territory of another Member State (Article 49(1) TFEU), and the prohibition of restrictions on freedom to provide services in respect of nationals of Member States who are established in a Member State other than that of the person for whom the services are intended (Article 56(1) TFEU). Read in conjunction, these rules prohibit discrimination on grounds of nationality in relation to employment, establishment, and access to and provision of services. That gives expression to the prohibition of discrimination as stated in Article 18(1) TFEU.70 It may be added that the treaty provisions on EU citizenship have been read in conjunction with Article 18(1) TFEU to prohibit discrimination on grounds of nationality against certain non-​economic actors.71 Article 21(1) TFEU, according to which EU citizens ‘shall have the right to move and reside freely’ within the EU, also complements the prohibition of nationality discrimination to protect non-​economic actors.72 As will be explained in a subsequent section, recent case law suggests that the Court may place renewed emphasis on legislative guidance in this field, after having relied heavily on the constitutional provisions in its early case law involving equal treatment rights.73 Equal treatment on grounds of sex in relation to pay is covered by Article 157(1) TFEU: ‘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’. Like the treaty articles on nationality discrimination against economic actors, Article 157(1) TFEU has existed in the Treaty since the origins of the European integration process.74 It remains the most prescriptive provision of the Treaty Title on Social Policy. Hoskyns has explained the ‘unexpected force’ of this article.75 The principle of equal pay was initially included in a section of the Treaty dealing with distortions of competition;76 its tone was thus close to that of the provisions on free movement and nationality 68  eg Mark Bell, Anti-​Discrimination Law and the European Union (OUP 2002) Ch 1. 69  As defined in Article 45(1) TFEU. 70  For an in-​depth and horizontal analysis of these provisions, see Catherine Barnard, The Substantive Law of the EU: The Four Freedoms (3rd edn, OUP 2010) 237 et seq. 71 eg María Martínez Sala v Freistaat Bayern [1998] ECLI:EU:C:1998:217, paras 62–​63. 72  This provision is directly effective: Baumbast and R v Secretary of State for the Home Department [2002] ECLI:EU:C:2002:493, para 86. 73  See section B.2.b.ii. 74  See Articles 48, 52, 59, 119 TEEC. 75  Catherine Hoskyns, Integrating Gender: Women, Law and Politics in the European Union (Verso 1996) 57. 76  Differences in the methods of addressing pay gaps between men and women across the Member States were seen as possible distortions of competition.

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discrimination. It was shifted in the last stages of the treaty negotiation process to the social policy title, without amendment. That paved the way for a wealth of legal developments, as will be illustrated later. Article 157(2) and (4) TFEU further specify the scope of the principle. They define the notion of ‘pay’ as well as the relationship between the principle of equal treatment and the possibility for the Member States to have recourse to affirmative action to ensure full equality in practice.

(b) The dual function: its implications and institutional actors The dual function of these provisions (other than those on citizenship, to which we will return later77), in particular their impact on EU regulatory intervention in the domestic arena, explains why they can be invoked more forcefully, and why they are more precise in content than the provisions acting uniquely as fundamental rights benchmarks. According to established case law on Articles 45(2), 49(1), 56(1), and 157(1) TFEU, they are sufficiently clear, precise, and unconditional to produce direct effect in domestic legal orders.78 It is also commonly accepted that these provisions prohibit not only direct but also indirect discrimination within their respective fields of application.79 Similarly, the implementation of the prohibition of discrimination in the context of all four provisions allows for a partial shift in the burden of proof. In the context of the internal market provisions (Articles 45(2), 49(1), and 56(1) TFEU) the partial shift in the burden of proof results from the so-​called ‘obstacles approach’ of the Court:80 establishing the existence of a restriction or potential restriction to free movement is enough to shift the burden on to the defendant to justify the measure and explain its proportionality. In the context of sex equality, the Court has asserted in several cases81—​and the legislature has confirmed82—​that the Member States must ensure, subject to limited exceptions,83 that the applicant only

77  See section B.2.c.ii. 78  Commission of the European Communities v French Republic [1974] ECLI:EU:C:1974:35, para 41; Jean Reyners v Belgian State [1974] ECLI:EU:C:1974:68, para 32; Johannes Henricus Maria van Binsbergen v Bestuur van de Bedrijfsvereniging voor de Metaalnijverheid [1974] ECLI:EU:C:1974:131, para 27; Gabrielle Defrenne v société anonyme belge de navigation aérienne Sabena [1976] ECLI:EU:C:1976:56, para 39. 79  Giovanni Maria Sotgiu v Deutsche Bundespost [1974] ECLI:EU:C:1974:13, para 11; John O’Flynn v Adjudication Officer [1996] ECLI:EU:C:1996:206, paras 18–​19. 80 See, for instance, the test adopted by the Court in Manfred Säger v Dennemeyer & Co Ltd [1991] ECLI:EU:C:1991:331, para 12; Dieter Kraus v Land Baden-​ Württemberg [1993] ECLI:EU:C:1993:125, para 32; Reinhard Gebhard v Consiglio dell’Ordine degli Avvocati e Procuratori di Milano [1995] ECLI:EU:C:1995:411, para 37; Alpine Investments BV v Minister van Financiën [1995] ECLI:EU:C:1995:126, para 35 and 38; Union royale belge des sociétés de football association ASBL and others v Bosman and others [1995] ECLI:EU:C:1995:463, para 103. 81  Handels-​og Kontorfunktionærernes Forbund I Danmark v Dansk Arbejdsgiverforening, acting on behalf of Danfoss [1989] ECLI:EU:C:1989:383, para 16; Dr Pamela Mary Enderby v Frenchay Health Authority and Secretary of State for Health [1993] ECLI:EU:C:1993:859, para 14. 82  Council Directive (EC) 97/​80 of 15 December 1997 on the burden of proof in cases of discrimination based on sex [1998] OJ L14/​6; see further Chapter 5, section A. 83  This does not apply to proceedings in which it is for the court or competent body to investigate the facts of the case. Also note that Member States may have rules of evidence which are more favourable to plaintiffs.

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needs to establish facts from which it may be presumed that there has been discrimination. The burden of proof is then passed on to the respondent to prove the principle of equal treatment has not been breached.84 This makes it easier for applicants to enforce their right to equal treatment on grounds of sex in pay and employment. These provisions have hardly changed since the Rome Treaty. It is therefore the Court of Justice that drives them into shape through interpretation. The preceding paragraph is indeed an acute illustration of the role of the judiciary in defining principles on the use of the relevant provisions, types of behaviour covered, and allocation of the burden of proof. The controversial nature of the central role given to the Court in this context is a direct consequence of the ambivalent nature of these provisions. As these rules have the status of primary law, they cannot be amended through ordinary political processes. Meanwhile, as these provisions define the scope and content of EU regulatory intervention in the field, their jurisdictional interpretation has a decisive constitutional impact.85 Such an impact is also visible as regards the third type of EU law provision, to which we now turn.

3. EU competences to adopt legislation giving effect to the prohibition of discrimination The third type of constitutional provision is a set of legal bases. These mandate the EU decision-​makers to adopt legislation that fleshes out the right to equal treatment. Use of them has led to the development of numerous directives,86 through which the EU legislature has been able to influence the scope and content of EU intervention on equal treatment. However, the precise institutional setting varies depending on the legal bases in question.

(a) ‘Old’ branches of equality law: ordinary legislative procedure The main legal bases through which EU decision-​makers can give effect to the prohibition of discrimination on grounds of nationality are Articles 18, 21, 46, 50, and 59 TFEU.87 Today, all these legal bases require the ordinary legislative procedure for the adoption of EU legislation. This observation holds true for the extension of the prohibition of nationality discrimination to EU citizens who do not have an economic activity in the aftermath of the Maastricht Treaty, as is clear from Article 21(2) TFEU today. That is to say, the Commission makes a proposal to the European Parliament and the Council, who come to a joint decision after consulting appropriate actors.88 These articles have been used (separately or in combination89)

84  Council Directive (EC) 97/​80 (n 82) Article 4. 85  See, for instance, Fritz Scharpf, ‘The Double Asymmetry of European Integration Or: Why the EU Cannot Be a Social Market Economy’ (2009) MPIfG Working Paper 09/​12. 86  Alec Stone Sweet, The Judicial Construction of Europe (OUP 2004) 147. 87  Taken in conjunction with Article 20 TFEU on citizenship of the EU. 88  The full procedure is detailed at Article 294 TFEU. 89  eg taken in conjunction with Article 20 TFEU on citizenship of the EU.

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for the adoption of the instruments giving effect to the principle of equal treatment to EU citizens,90 and more specifically to mobile EU citizens engaged in an economic activity.91 Other legal bases such as Article 48 (in the field of social security), Article 115 (internal market legal basis), or Article 352 (flexibility clause) TFEU include heftier legislative procedures92 and are less directly related to eradicating discrimination. As regards equal treatment on grounds of sex in matters of pay, as well as more broadly in matters of employment and occupation, the EU legislature had initially relied on the connection between EU sex equality policy and the internal market to adopt legislation in this field.93 At the time, the prevailing decision-​making procedures placed the ultimate powers in the hands of the Council. After the Treaty of Maastricht was passed, Article 2(2) of the Agreement on social policy94 empowered the Council to adopt legislation related to equality between men and women with regard to labour market opportunities and treatment at work.95 This legal basis made its way into the Treaty of Lisbon after the Treaty of Amsterdam,96 in what is today’s Article 157(3) TFEU.97 The ordinary legislative procedure including 90  Directive (EC) 2004/​38 of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States amending Regulation (EEC) No 1612/​68 and repealing Directives 64/​221/​EEC, 68/​360/​EEC, 72/​194/​EEC, 73/​148/​EEC, 75/​34/​EEC, 75/​35/​EEC, 90/​364/​EEC, 90/​365/​EEC and 93/​96/​EEC [2004] OJ L158/​77, Article  24. 91  Regulation (EU) 492/​2011 of 5 April 2011 on freedom of movement for workers within the Union (Text with EEA relevance) [2011] OJ L141/​1, Article 7; Directive (EU) 2014/​54 of 16 April 2014 on measures facilitating the exercise of rights conferred on workers in the context of freedom of movement for workers (Text with EEA relevance) [2014] OJ L128/​8. 92  See Article 48(2), 114(2) and the very design of Article 352 TFEU. 93  Council Directive (EEC) 75/​117 of 10 February 1975 on the approximation of the laws of the Member States relating to the application of the principle of equal pay for men and women [1975] OJ L45/​19 was based on an internal market provision (the equivalent of today’s Article 115 TFEU); Council Directive (EEC) 76/​207 of 9 February 1976 on the implementation of the principle of equal treatment for men and women as regards access to employment, vocational training and promotion, and working conditions [1976] OJ L39/​40 was adopted on the basis of the flexibility clause (the equivalent of today’s Article 352 TFEU); Council Directive (EEC) 79/​7 of 19 December 1978 on the progressive implementation of the principle of equal treatment for men and women in matters of social security [1979] OJ L6/​24 has been adopted on the basis of the flexibility clause (the equivalent of today’s Article 352 TFEU); Council Directive (EEC) 86/​378 of 24 July 1986 on the implementation of the principle of equal treatment for men and women in occupational social security schemes [1986] OJ L225/​40 was based on a combination of both legal bases (internal market and flexibility clause); Council Directive (EEC) 86/​613 of 11 December 1986 on the application of the principle of equal treatment between men and women engaged in an activity, including agriculture, in a self-​employed capacity, and on the protection of self-​employed women during pregnancy and motherhood [1986] OJ L359/​56 was based on a combination of both legal bases (internal market and flexibility clause). 94  The Agreement was annexed to the Protocol (No 14) on social policy, itself annexed to the Treaty establishing the European Community. The agreement did not involve the United Kingdom of Great Britain and Northern Ireland. 95  Council Directive (EC) 97/​80 (n 82). 96  Article 141(3) TEC (consolidated version after Amsterdam). 97  On the relationship between Article 157 and Article 153 TFEU: see Articles 153, 155(2) TFEU; contrast in particular Article 153(1)(i) TFEU on the EU supporting and complementing the activities of the Member States with Article 157(3) TFEU in ensuring the application of the principle of equal treatment. The wording of Article 157(3) TFEU seems much more powerful and is not covered by the measures on collective bargaining introduced by Article 155(2) TFEU read in conjunction with Article 153 TFEU. See further Bell (n 68) 128–​31.

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consultation of the Economic and Social Committee has also been used here. This is the procedure that has been used for the main instrument in this field, as illustrated by the great 2006 recast of EU sex equality law in employment98 and the 2010 revised version of the Directive on self-​employment.99 As things stand today, the two branches of EU equality law that have existed since the Treaty of Rome—​the prohibition of nationality discrimination and the prohibition of sex discrimination in employment (‘old’ branches of EU law)—​therefore allow for the revision of old legislation and the adoption of new legislation through the ordinary legislative procedure.

(b) ‘New’ branches of equality law: special legislative control mechanisms Take, in contrast, the more recent branches of EU equality policy developed in the aftermath of the Treaty of Amsterdam on the basis of what is today Article 19 TFEU. This includes discrimination based on racial or ethnic origin, religion or belief, disability, age, sexual orientation, and sex outside the employment sphere (‘new’ branches of EU equality law).100 They have remained shielded from the expansion of the ordinary legislative procedure:101 this article indeed requires unanimity at the Council. The only procedural change since the Treaty of Amsterdam has been the rather modest upgrading of the European Parliament’s powers from consultative to that of a binary right of consent or veto resulting from the Treaty of Lisbon. As a consequence, all key instruments in these ‘new’ branches of EU law have been the subject of a vote of unanimity at the Council, with limited formal channels for the European Parliament to influence the wording of legislation.102 The unanimity requirement allows the Member States gathered in the Council to retain a quasi-​constitutional control over decision-​making in the field. In theory

98  Article 157(3) TFEU. Directive (EC) 2006/​54 of 5 July 2006 on the implementation of the principle of equal opportunities and equal treatment of men and women in matters of employment and occupation (recast) [2006] OJ L204/​23. 99  However, note the older Directive 79/​7 on the progressive implementation of the principle of equal treatment for men and women in matters of social security instruments, that has not been revised, and has been adopted through the heavier legislative procedures requested to use the internal market legal bases. 100  On the evolution of EU competences leading to the adoption of Article 13 TEC in the Treaty of Amsterdam and inclusion of race and sexual orientation see Bell (n 68) 63–​74, 104–​07, and 119–​20. Note the special history of EU citizenship law that admittedly sits uneasily with the suggested classification. I am most grateful to Gillian More for pointing that out. Provisions on EU citizenship are addressed in section A.3.a, as they are closely related to EU law on non-​discrimination on grounds of nationality and legislation has developed owing to the ordinary legislative procedure. We will return to the specificities of that sub-​area of EU equality law in Chapter 3, section B.2.c.ii. 101  On the soft law initiatives preceding EU competences, see Bell (n 68) 52, and more generally Ch 3 on race discrimination. 102  Council Directive (EC) 2000/​43 of 29 June 2000 implementing the principle of equal treatment between persons irrespective of racial or ethnic origin [2000] OJ L180/​22; Council Directive (EC) 2000/​78 of 27 November 2000 establishing a general framework for equal treatment in employment and occupation [2000] OJ L303/​16; and Council Directive (EC) 2004/​113 of 13 December 2004 implementing the principle of equal treatment between men and women in the access to and supply of goods and services [2004] OJ L373/​37.

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they have the final say on the scope and content of EU intervention in domestic policies. It is interesting to observe that the Portuguese presidency decided to make the adoption of the Race Equality Directive a political priority,103 and that the European Parliament has been able to use time pressure as leverage to influence the content of the text.104 This Directive was then largely used as a model for the adoption of another equality directive. The European Parliament might actually have had more influence on the content of EU equality legislation than foreseen by the drafters of the Treaty.105 Along with this special legislative procedure, Article 19 TFEU includes another control mechanism. According to Article 19(1) TFEU institutions shall act ‘within the limits of the powers conferred by the [Treaties] upon the Union’.106 As already pointed out,107 this could be read as a restraint on the EU legislature’s margin to act.108 The relevant legislation also picked up on this word of caution so that, for instance, the material scope of the Framework Employment Directive is circumscribed by the expression ‘within the limits of the powers conferred upon the Community . . .’.109 To date, however, EU political institutions do not seem to have actually been restricted by this proviso. Despite some initial hesitations,110 the Article 19(1) TFEU Directives were made remarkable in scope. EU powers in relation to education might be rather weak, but education falls within the scope of the Race Equality Directive and is currently the subject of infringement actions by the European Commission.111 Another example from that Directive’s field of application is ‘access to and supply of goods and services which are available to the public, including housing’,112 which does not seem to relate to any other EU competences.113 The question of whether these specific settings fell within the scope of EU competences or powers therefore has not yet been an obstacle to the adoption of legislation covering new matters nor of triggering the informal stages of infringement proceedings. In that sense, the EU legislature as well as the Commission—​which proposed the legislation and is now enforcing it—​have been having a direct impact on the definition of the scope of EU (anti-​discrimination)  law. As for the Court of Justice, so far it has indicated that a material overlap between the facts at hand and the topics covered by the Article 19 TFEU Directives was enough to bring the situation within the scope of EU law without there being need 103  Further examining the background of this instrument, Bell (n 68) 63–​72. 104  ibid 74. 105  ibid 74. 106  Article 19(1) TFEU. 107  See Chapter 2, section A. 108 Leo Flynn, ‘The Implications of Article 13 EC—​ after Amsterdam, will Some Forms of Discrimination be More Equal than Others?’ (1999) 36 CML Rev 1127, 1134–​35. 109  Council Directive (EC) 2000/​78, of 27 November 2000 establishing a general framework for equal treatment in employment and occupation [2000] OJ L303/​16, Article 3(1). 110  Flynn (n 108) 1134 et seq; arguing along similar lines, see Piet Eeckhout, ‘The EU Charter of Fundamental Rights and the Federal Question’ (2002) 39 CML Rev 945, 986 et seq. 111  See letters of formal notice against the Slovak and Czech Republic as well as Hungary (European Commission, ‘May infringements’ package: key decisions’, 2016). 112  Council Directive (EC) 2000/​43 (n 102) Article 3(1)(h). 113  Eeckhout (n 110) 986. See also the remark in n 114 on the CHEZ case.

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for a further enquiry into other EU competences.114 As Eeckhout has pointed out, a strong legal challenge to the validity of EU equality law beyond the scope of ‘general’ (ie not related to anti-​discrimination policy) EU powers ‘would be a truly hard case for the Court, in which the principle of limited powers would be pitted against the noblest of legislative acts ever to have been produced by the EU’.115 It should be noted that even if certain provisions of Article 19 TFEU Directives were declared invalid, Member States may decide to retain implementation measures as part of their domestic law so that the imprint of EU law in these areas would remain strong.116

(c) The ‘invisible’ branch of EU equality law A third dimension of EU equality law is characterized by the relative silence of the Treaty. Many treaty provisions allow for the adoption of legislation that includes equal treatment clauses despite the fact that there is no legal basis that mentions equal treatment or non-​discrimination as such (identified as the ‘invisible’ branch of EU equality law). This omission can be explained by the fact that the pursuit of equal treatment is not the main policy objective pursued. Yet, legislation adding flesh to the principle of equality has actually blossomed in the context of employment and migration law, as will be detailed later.117 In this context, equal treatment clauses are thus tools contributing to the achievement of a broader socio(-​economic) objective, such as the better integration of third country nationals who are long-​term residents in a Member State118 or improvements of the rights of atypical workers.119 Here the institutional setting is as diverse as the policy areas, such as migration law and social law. Nevertheless, a common feature is that the relevant treaty provisions are always mere enabling tools and do not perform the dual function discussed previously.120 The main challenge for our purpose is qualifying the link between these diverse equal treatment clauses and the fundamental right to equal treatment or general principle of equal treatment. At a conceptual level, one could indeed 114 eg Seda Kücükdeveci v Swedex GmbH & Co KG [2010] ECLI:EU:C:2010:21, paras 24–​26. See further Mirjam de Mol, ‘The Novel Approach of the Court on the Horizontal Direct Effect of the EU Principle of Non-​Discrimination: (Unbridled) Expansionism of EU Law?’ (2011) 18 MJ 109, 126–​27. However, in CHEZ, note the reference to provisions of EU law other than those of the Framework Employment Directive to support the finding that the making available to final consumers of individual electricity meters is within the scope of EU law for the purpose of applying that Directive (‘CHEZ Razpredelenie Bulgaria’ AD v Komisia za zashtita ot diskriminatsia [2015] ECLI:EU:C:2015:480, paras 43–​44). 115  Eeckhout (n 110) 987. 116  ibid 987. Cf, for instance, the fate of domestic rules implementing the Data Retention Directive annulled by Digital Rights Ireland Ltd v Minister for Communications, Marine and Natural Resources and others and Kärtner Landesregierung and others [2014] ECLI:EU:C:2014:238. 117  Also introducing these aspects of the principle together, Mark Bell, ‘The Principle of Equal Treatment: Widening and Deepening’ in Paul Craig and Gráinne de Búrca (eds), The Evolution of EU Law (2nd edn, OUP 2011) 611. 118  eg Council Directive (EC) 2003/​109 of 25 November 2003 concerning the status of third-​ country nationals who are long-​term residents [2004] OJ L16/​44, Article 11. 119  eg Council Directive (EC) 1999/​70 of 28 June 1999 concerning the framework agreement on fixed-​term work concluded by ETUC, UNICE and CEEP [1999] OJ L175/​43, Clause 4. 120  See section A.2.

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wonder if these equal treatment clauses give expression to the fundamental right to equal treatment despite the absence of an explicit link with the grounds covered in Articles 21(1), 21(2), and 23 of the Charter; or if, in more general terms, these equal treatment clauses are tied up with the general principle of equal treatment or the general equal treatment clause in Article 20 of the Charter, and whether one or the other option makes a difference. The implications of this query go beyond purely theoretical perspectives as the answer may have an impact on the ability to invoke, if not the substantive reading of, the relevant equal treatment clauses, as will be examined further.121

4. Conclusion: constitutional asymmetries This overview emphasizes the existence of several asymmetries enshrined in the EU constitutional framework for EU equality law. The first asymmetry becomes apparent when comparing the institutional settings of the different branches of EU equality law: ‘substantive-​institutional asymmetry’. The ‘old’ branches of EU equality law feature a remarkably strong constitutional framework with the same treaty provisions largely acting as fundamental rights benchmarks as well as defining the scope and content of EU regulatory intervention.122 This framework is coupled with the power for EU institutions to develop legislative instruments through the ordinary legislative procedure. In contrast, the ‘new’ branches are to be defined by EU political institutions through a special legislative procedure. There is no treaty provision defining the scope and content of EU regulatory intervention—​Article 19 TFEU is not capable of direct effect, it is merely an enabling provision. More precisely, Flynn has noted that, in general, there had been opposition to any direct effect of such a non-​discrimination provision.123 Finally, the third and ‘invisible’ branch of equality law is as diverse as the legal bases involved and is not organically related to provisions of a constitutional nature embedding the fundamental right to equal treatment. The second asymmetry flows directly from the last one and relates to the powers of different key players: ‘institutional-​institutional asymmetry’. As is now clear, the constituent powers play different roles in each of the constitutional settings identified, and at times within each of these settings. As regards ‘old’ branches of EU equality, treaty provisions as well as legislation may impact the scope and content of EU intervention in domestic policies. One may thus expect tensions between the Court when it interprets treaty provisions that have a normative content, and the EU legislature when it uses treaty provisions to shape the field. As for ‘new’ branches of equality law, one could have expected the Member States to be in the driving seat when it comes to defining the scope and content of legislation adopted by unanimity on the basis of Article 19 TFEU. Although this has largely 121  See Chapter 4. 122  See section A.2. 123  He further observed that at least one Member State—​the UK—​had had doubts about the insertion of general non-​discrimination provisions in the Treaties and that Denmark had expressed no views: Leo Flynn (n 108) 1129, note 6 and 1132–​33.

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been the case, remarkable jurisprudential developments have emphasized the Court’s strong presence and influence on both the ability to invoke and the scope of EU equality legislation. Meanwhile, the ‘invisible’ branches of EU equality law seem to lie primarily in the hands of the EU legislature, although their interplay with the fundamental right to equal treatment may be open to the EU judiciary’s interpretative creativity. In essence, these substantive as well as institutional asymmetries place the Court and a multi-​faceted EU legislature largely at the core of the process of shaping EU equality law. Asymmetries between law and politics, and also between different players at the EU and domestic level, have been subject to much attention from Scharpf. Scharpf ’s reflections primarily relate to the deregulation of domestic social and political constructions of solidarity triggered by the Court’s case law on the four freedoms. As such, this is not immediately relevant to our analysis of fundamental rights standard-​setting at EU level. He has, however, highlighted the importance of taking these asymmetries seriously as, in contrast to federal states, EU intervention is not intended to ‘identify and protect a stable balance between the mandates, legitimacy bases and functional requirements of both levels of government . . . [it] is an instrument for promoting a dynamic process of ever increasing European integration’.124 These concerns bridge the present analysis of plurality and asymmetries in the constitutional framework shaping the contours of EU equality law with the tensions between constitutional and political approaches to fundamental rights policy-​making, as introduced in Chapter 2. We now ought to turn to applying the analytical benchmarks identified therein to the constitutional dialogues and tensions observed, as more and more clearly, EU equality law has been shaped as an autonomous fundamental rights policy.125

B.  Institutional Competition for the Shaping of EU Equality Law This complex constitutional setting must be read in the light of the increasingly autonomous status of EU anti-​discrimination policy. As explained in Chapter 1, the fundamental rights dimension of EU equality policy, by contrast with its internal market and social policy dimensions, became unquestionable in the early years of the new millennium. As a consequence, the anti-​discrimination directives adopted within the constitutional framework described previously constitute the expression of a fundamental human right.126 These directives embody the process of ‘downloading’ the protection of the fundamental right to equal treatment. In so far 124  Scharpf (n 85) 20. 125  See above Chapter 1, section C. 126  Deutsche Post AG v Elisabeth Sievers [2000] ECLI:EU:C:2000:76, paras 55–​57; see also Deutsche Telekom AG v Lilli Schröder [2000] ECLI:EU:C:2000:72, paras 55–​57. See also Werner Mangold v Rüdiger Helm [2005] ECLI:EU:2005:709, paras 74–​76 and Seda Kücükdeveci v Swedex GmbH & Co KG [2010] ECLI:EU:C:2010:21, para 50.

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as the adoption of EU legislation gives expression to the fundamental right to equal treatment, it: (i) defines the scope of EU political intervention, (ii) impacts on the tools for the protection of fundamental rights, and (iii) solidifies a mutation in the function performed by fundamental rights. As this downloading process takes effect in a highly asymmetrical constitutional context,127 the tensions between key players as well as between law and politics are particularly vivid and equally visible. The Court’s position in interpreting fundamental rights legislation resulting from such downloading is remarkably delicate. The judiciary is requested to exercise its jurisdiction over an act that was itself negotiated with the aim of enhancing fundamental rights protection. The Court may thus more ostensibly replace its assessment with that reached by the political authorities. It does so on behalf of a norm that is allegedly of a superior nature hierarchically, but the content of which may have been left for political institutions to define by the relevant legal basis in the Treaty (such as directives adopted on the basis of Article 19 TFEU). As such, the uploading and subsequent downloading processes128 that characterize the latest trends in EU equality law provide an excellent case study to test the observations put forward in Chapter 2 on the possible challenges raised by policy-​ making on fundamental rights matters. It was stressed earlier that fundamental rights policy-​making at the EU level may be hindered by a strong appeal to constitutional forms of protection to the detriment of political debate leading to legislation, and that the legitimacy of the transfer of fundamental rights competences to the EU level may be called into question if not sufficiently politicized.129 The following section further points out the practical problems associated with the conceptual challenges thereby identified. The following developments shed light on the difficulties caused by a heavy reliance on constitutional forms of protection despite the existence of legislative guidance, and highlight opportunities for renewed emphasis on political debates (or re-​politicization). The approach is twofold. This first section (section B.1) unravels tensions between constitutional adjudication and legislative guidance throughout the evolution of EU equality law over time. It identifies the key players that have influenced the functions that equality norms perform in the EU legal order. These actors may allow, hinder, prevent, or recall political debates on fundamental rights. It will be argued that EU equality law is too often approached through the lens of constitutional norms, thereby limiting the scope for political debates on EU intervention in the field. The second section (section B.2) is more forward looking. It investigates options for judicial interpretation to be able to accommodate the political dimension of fundamental rights policy-​making. To that effect, it examines the details of techniques for the interpretation of legislation in the light of the fundamental rights to which it gives expression.

127  See section A.4.

128  See Chapter 2, section A.1.

129  See Chapter 2.

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1. The fine line between setting a framework for and hindering political debate The definition of the functions and powers attached to various EU equality norms impacts on the relationship between primary law and secondary law. It also has implications for the allocation of competences between the EU and the Member States. The more purposive and the more powerful a constitutional provision, the more constrained key players will be, namely EU political institutions in shaping secondary law and Member States in exercising their competences at the domestic level. In this context, an apex is reached in the tensions between those in favour of constitutional forms of protection of fundamental rights and those in favour of political processes leading to legislation, as well as between supporters of national approaches and those favouring supranationalization. The use of the said EU equality norms can also intensify or distort the system of checks and balances enshrined in the TFEU. A purposive reading of constitutional norms or the constitutionalization of non-​constitutional norms may pre-​empt or impose a straitjacket on further decision-​making in the field, thus having a decisive impact on the possibility—​or absence—​of political debate via the downloading process. The practical implications of this theoretical debate are highly visible in an analysis of the evolution of EU equality law: different processes have interacted to enhance supranational and constitutional forms of protection hand in hand with judicial intervention. This resulted in a move away from domestic as well as political players, as will now be illustrated.

(a) Framing the debate in European terms and placing the EU judiciary in a central position: Defrenne II The Defrenne II case was the first in which the Court asserted that EU law can be relied upon in disputes between private parties before domestic courts. In doing so the Court placed what is now Article 157(1) TFEU on equal pay between men and women for work of equal value in a central position to influence what would soon become EU equality law. It also put itself in an influential position in doing so. Despite being what could be perceived as rather ‘vague and aspirational’,130 the ruling has had major implications for the shape of today’s equality policy. Ms Defrenne, an air hostess, brought a legal action against her employer, the Sabena airline. She invoked Article 157(1) TFEU to seek compensation for having been paid less than her male colleagues who performed the same work as cabin stewards. In stressing that the principle of equal pay between men and women ‘forms part of the social objectives of the [Union], which is not merely an economic union, but is at the same time intended . . . to ensure social progress and seek the constant improvement of the living and working conditions’,131 and subsequently enabling 130  Hervey (n 66) 320. 131  Gabrielle Defrenne v Société anonyme de belge de navigation aérienne Sabena [1976] ECLI:EU:C:1976:56, para 10.

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the applicant to rely directly on Article 157(1) TFEU against her private employer before domestic courts, the Court did two things. From a functional perspective, the Court revealed the transformative mandate of EU equality law (as defined in Chapter 1). The intervention of EU law on matters of equal treatment is thereby directly aimed at regulating private relationships.132 This assertion placed the provisions of the European Economic Treaty, a treaty between states, and the law deriving from those provisions, at the core of domestic social and employment law. The Member States were thus informed or reminded—​depending on how one may want to look at it—​that they had signed up for an ambitious transfer of competences allowing the EU to intervene (even if only on fairly narrow aspects at the time) in the regulation of domestic labour markets. Defrenne II also resulted in a stronger mandate for the Commission to propose EU legislation in the field.133 From an operational perspective, the concept of horizontal direct effect allowed EU law to be broadly used as such in domestic litigation, thereby increasing the potential for change under the impulsion of EU law. This process of rights-​based integration is all the more powerful as juridicization is placed in the hands of domestic courts—​higher as well as lower—​owing to the combined mechanisms of supremacy, direct effect, and procedure for preliminary rulings.134 Indeed, the latter procedure allows any judge hearing a dispute involving individual rights flowing from EU law to address the Court of Justice for guidance on the interpretation of EU provisions. These judges are then compelled, by virtue of the supremacy of EU law, to give effect to the interpretation of EU law adopted by the Court—​irrespective of whether a domestic higher court might disagree with this. The process thus allows litigants to question state measures from within their domestic jurisdictional system. Article 157(1) TFEU as interpreted in Defrenne II resulted in the Court being placed in a central position to shape the field. To frame this in the terms set out in Chapter 2, Defrenne II intensified the supranationalization of equality policy and created the circumstances for it to be largely driven by judicial law-​making. The Court took the same approach to the prohibition of nationality discrimination.135 The Court made it clear that the prohibition of nationality discrimination, like the prohibition of sex discrimination in relation to pay, is designed to ensure that there is no discrimination on the labour market and applies to private persons.136 Observers agree: ‘The forum of private litigation avoided the political difficulties embedded in 132  As suggested by the earlier adoption of Council Directive (EEC) 75/​117 (n 93); and Council Directive (EEC) 76/​207 (n 93). 133  Bell (n 68) 45. 134  See further Gareth Davies, ‘Activism Relocated. The Self-​Restraint of the European Court of Justice in its National Context’ (2012) 19 JEPP 76. 135 See BNO Walrave and LJN Koch v Association Union cyclist international, Koninklijke Nederlandsche Wielren Unie and Federación Espanola Ciclismo [1974] ECLI:EU:C:1974:140, para 17; Union royale belge des sociétés de football association ASBL v Jean-​Marc Bosman, Royal club liégeois SA v Jean-​Marc Bosman and others and Union des associations européennes de football (UEFA) v Jean-​Marc Bosman [1995] ECLI:EU:C:1995:463; Roman Angonese v Cassa di Risparmio di Bolzano SpA [2000] ECLI:EU:C:2000:296, paras 33–​36. 136  See Chapter 1.

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the process of integration through legislation, and also, largely, avoided the glare of publicity arising from media attention. The Court was available to go about quietly creating an integrated EU.’137 This led Hervey to conclude, thirty years after the adoption of the first sex equality directive, that ‘the most exciting element of EU sex equality law, during its thirty year life span to date, is the opportunities EU law brings to challenge policy and interpretative choices of institutions or other actors with political power, including courts’.138 The case law on the horizontal direct effect of the prohibition of sex and nationality discrimination thus enshrined the asymmetry between EU political actors and the EU judiciary in the constitutional framework for EU sex and nationality equality law, referred to here as the ‘institutional-​institutional asymmetry’. This took place at a time when there were few challenges to the central dynamics of the European integration process and the Court relied heavily on the political agenda that it considered to be embedded in the relevant treaty provisions.139 Subsequent political intervention has been largely framed by the Court’s dynamic reading of Articles 45 and 157(1) TFEU. This judicial construction of EU sex equality law enhanced supranational governance, organized the work of the EU legislature, and eroded the capacity of governments to use veto powers to block change.140

(b) Consolidating political entrapment: legislative codification of constitutional case law The definitions of most of the legal concepts accompanying the prohibitions of sex and nationality discrimination have in fact been defined by the judiciary.141 In the context of sex equality law, however, the case law of the Court of Justice largely fed into equality directives that refined the reach and methods for the application of the principle of equal treatment to public and private actors alike. The definition of pay for the purpose of Article 157 TFEU, for instance, has been strongly influenced by the dynamic—​if not aggressive142—​case law of the Court, as will be discussed later. This is to the extent that legislative reforms have at times been considered to be a mere codification of the Court’s case law.143 This can be said, for example, of the definitions of direct and indirect discrimination,144 or of rules governing the burden of 137  Hervey (n 66) 319. See also, commenting on nationality discrimination case law, Gareth Davies, ‘Freedom of Contract and the Horizontal Effect of Free Movement Law’ in Dorota Leczykiewicz and Stephen Weatherill (eds), The Involvement of EU Law in Private Law Relationships (Hart Publishing 2013) Ch 4; Fritz W Scharpf, ‘Perpetual Momentum: Directed and Unconstrained?’ (2012) 19 JEPP 127; Susanne K Schmidt, ‘Who Cares about Nationality? The Path-​Dependent Case Law of the ECJ from Goods to Citizens’ (2012) 19 JEPP 8. 138  Hervey (n 66) 323. 139  This is further elaborated in the Conclusion to this chapter. 140  Paraphrasing Alec Stone Sweet and Rachel Cichowski, ‘Sex Equality’ in Alec Stone Sweet, The Judicial Construction of Europe (OUP 2004) Ch 4, 154. 141  Bell (n 117) 615. 142  Deirdre Curtin, ‘Scalping the Community Legislator:  Occupational Pensions and “Barber” ’ (1990) 27 CML Rev 475. 143  eg Alec Stone Sweet and Kathleen Stranz, ‘Rights Adjudication and Constitutional Pluralism in Germany and Europe’ (2012) 19 JEPP 92, 93. 144  JP Jenkins v Kingsgate [1981] ECLI:EU:C:1981:80, paras 13–​14.

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proof,145 that were nowhere to be found in the initial directives. The relevant case law was then incorporated into codifying legislation from the late 1990s.146 The adoption of the said legislation has broadened the scope of the case law to cover most instruments of EU equality law. As a result of this process, technical provisions now exist that are largely common to most instruments of EU equality legislation and are modelled on the Court’s approach to the fundamental right to equal treatment. The Court’s dynamic reading of the constitutional norm initiated by the Defrenne saga has thus largely (although not fully147) pre-​empted the possibility for political debate on the choice of conceptual and legal tools to address discrimination on grounds of sex and nationality. The situation is slightly different as regards the prohibition of nationality discrimination. Here too, the key implications of the prohibition of nationality discrimination have been primarily defined by the Court.148 Yet, in contrast with sex equality, where a broad codification exercise has taken place, the substance of the prohibition of nationality discrimination against economic actors remains largely governed by constitutional provisions. Internal market legislation provides little guidance on how to implement Article 18 TFEU or the more specific expressions of the principle of non-​discrimination on the ground of nationality.149 Rather than fleshing out the prohibition of nationality discrimination, most of the internal market legislation concerning mobile and economically active EU citizens seeks to avoid the occurrence of and temper the effects of discrimination by coordinating domestic social systems.150 Separate developments are devoted to the de-​constitutionalization of EU law prohibiting nationality discrimination against mobile but economically inactive EU citizens and to the role of EU legislation in that regard.

145  Dr Pamela Mary Enderby v Frenchay Health Authority and Secretary of State for Health [1993] ECLI:EU:C:1993:859, para 18. 146  Starting with Council Directive (EC) 97/​80 (n 82); see also later discussion on the development of legislation related to new grounds of discrimination, yet building on pre-​existing legal concepts. 147  See, for instance, Chapter 5, section A. 148  In early cases on nationality discrimination, the Court asserted that ‘[t]‌he rules regarding equality of treatment . . . forbid not only overt discrimination by reason of nationality but also all covert forms of discrimination which, by the application of other criteria of differentiation, lead in fact to the same result’ (Giovanni Maria Sotgiu v Deutsche Bundespost [1974] ECLI:EU:C:1974:13, para 11). In O’Flynn, the Court further defined the test for indirect discrimination (John O’Flynn v Adjudication Officer [1996] ECLI:EU:C:1996:206, paras 18–​19), which is in line with the definition of indirect discrimination that is now to be found in most EU equality directives. O’Flynn is explicitly mentioned in the explanatory memorandum (footnote 8) of the Commission (EC), ‘Proposal for a Council Directive implementing the principle of equal treatment between persons irrespective of racial or ethnic origin’ COM (99) 566 final, 25 November 1999. See also the explanatory memorandum of the Commission (EC), ‘Proposal for a Council Directive on the burden of proof in cases of discrimination based on sex’ COM (96) 340 final, 17 July 1997, in which the first legislative definition of indirect discrimination was given. 149  For instance, the prohibition of nationality discrimination is reproduced in Regulation (EU) 492/​2011 of 5 April 2011 on freedom of movement for workers within the Union [2011] OJ L141/​1, Articles 7 and 8. These articles clarify the material scope of the prohibition but do not explain how to articulate the test for discrimination. 150  eg Regulation (EC) 883/​2004 of 29 April 2004 on the coordination of social security systems [2004] OJ L166/​1.

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(c) Bridging the constitutional asymmetry between ‘old’ and ‘new’ branches of equality law: Mangold and Kücükdeveci As discussed, the Court relied on Articles 157(1) TFEU in Defrenne II, which then triggered a rich constitutional case law. Marking a sharp contrast with the wording of that article, the drafters of the Treaty of Amsterdam decided to broaden the competence of the EU on matters of equal treatment. The wording of Article 19 TFEU was ‘conspicuously and deliberately neutered, lacking any statement of principle which could be seen as implicitly addressing an obligation to Member States’.151 This was done specifically with the intention of avoiding further developments akin to those in the Defrenne saga. As already noted, this created an asymmetry in the constitutional framework for ‘old’ and ‘new’ branches of equality policy, referred to as ‘substantive-​institutional asymmetry’.152 In Mangold, as confirmed with greater precision in Kücükdeveci, the Court bridged the asymmetry and aligned the ‘new’ branches of EU law with the ‘old’ ones by enhancing the constitutional status of the former. The Court emphasized that EU legislation adopted on the basis of Article 19 TFEU only gives expression to a fundamental right of a constitutional nature, thereby filling in the constitutional void created by the soft wording of Article 19 TFEU. Ms Kücükdeveci sued her employer (a private actor) for breach of an obligation enshrined in Directive 2000/​78 which prohibited age discrimination in employment. The employer had made use of provisions of national law excluding periods of employment completed before reaching the age of 25 from the calculation of the length of employment for the purpose of assessing the notice period for dismissal. The Court requested the referring court to set aside—​if need be—​the provision of national legislation. This was because it ran counter to the general principle of EU law prohibiting age discrimination,153 as set out concretely in Directive 2000/​78. This finding was held to be true, even in a dispute between private parties,154 and has been subsequently confirmed,155 although in slightly different terms.156 Since Kücükdeveci, it has thus been established that the existence of secondary legislation giving specific expression to a fundamental right157 allows EU law to have a direct impact on the outcome of an inter-​personal dispute.158 This outcome surprised observers familiar with the traditional case law of the Court, according 151  Flynn (n 108) 1133. 152  See section A.4 of this chapter. 153  In subsequent cases, an explicit link was made between the general principle prohibiting discrimination on grounds of age and Article 21(1) CFEU, eg Association de médiation sociale v Union locale des syndicats CGT and others [2014] ECLI:EU:C:2014:2, para 47. 154  Editorial, ‘Out with the Old’ (2006) 31 EL Rev 1; de Mol (n 114) para IV.3.a. The ruling has since then been confirmed, although in slightly different terms (see further Chapter 4, section A.1.), in Dansk Industri (DI), acting on behalf of Ajos A/​S v Estate of Karsten Eigil Rasmussen [2016] ECLI:EU:C:2016:278. 155  Dansk Industri (DI), acting on behalf of Ajos A/​S v Estate of Karsten Eigil Rasmussen [2016] ECLI:EU:C:2016:278. 156  See further Chapter 4, section A.1. 157  And more precisely, a general principle of EU law in the cases at hand. 158  Further discussing the point of whether this constitutes direct effect or not see: E. Muir, ‘Of Ages in—​and Edges of—​EU Law’ (2011) 48 CML Rev 39.

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to which directives cannot be relied upon against other individuals in national courts. But perhaps more importantly for our purpose, the case is interesting as the Court relies on legislation combined with general principles to reach a result close to what would have been achieved if Article 19 TFEU had been modelled on Article 45 or 157(1) TFEU. That was precisely what the constituent powers were avoiding.159 From the perspective of applicants in cases such as Kücükdeveci, aligning the applicability of the prohibition of age discrimination with the prohibition on sex discrimination makes a lot of sense. It ensures consistency within EU equality law. Yet, in bridging a substantive-​institutional asymmetry, the Court’s engineering not only exports, but also enhances, the effect of another asymmetry:  institutional-​ institutional this time, as initially created by the Defrenne II case law. The Court once again places itself in a central position to define the function and powers of different norms of EU equality law. The imbalance between judicial interpretation of constitutional provisions and the expression of political choices through legislative guidance is becoming greater for two reasons. First, the material scope of EU equality law now covers a whole set of new grounds that goes beyond sex and nationality, showing that the Court has placed itself in a central position for a much broader field of law. Second, the asymmetry between law and politics is all the more spectacular regarding the ‘new’ branch of equality law, which the constituent powers had intended to place in the hands of political institutions by opting for a legal basis without specific content in itself. Admittedly, the ‘emptiness’ of Article 19 TFEU is partly compensated for by Article 21 of the Charter, which explicitly prohibits discrimination on a set of grounds—​including those covered by Article 19 TFEU. The wording of Article 21 of the Charter was indeed inspired by that of Article 19 TFEU, as well as Article 14 ECHR, and Article 11 of the Convention on Human Rights and Biomedicine.160 Nevertheless, as explained earlier, Article 19 TFEU and Article 21 of the Charter perform different constitutional functions.161 Article 21 of the Charter acts as a constitutional review mechanism whereas Article 19 TFEU allocates and regulates the exercise of EU competences.162 Using the Charter to achieve objectives that are not aimed at in Article 19 TFEU departs from the guidance given by the drafters of the Treaty.163

159  Flynn (n 108) 1129, note 6 and 1132–​33. 160  Eddy de Smijter and Koen Lenaerts, ‘A “Bill of Rights” for the European Union’ (2001) 38 CML Rev 273, 283 as well as Explanations Relating to the Charter of Fundamental Rights [2007] OJ C303/​ 17. 161  See section A. 162  Observers have wondered how Article 21 CFEU could warrant stronger protection that of Article 19 TFEU: Smijter and Lenaerts (n 160) 284; Eeckhout (n 110) 980–​81. 163  See further Article 51 CFEU as well as corresponding Explanations Relating to the Charter of Fundamental Rights [2007] OJ C303/​17.

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(d) Incorporating the outcome of the political process back into the constitutional norm? A further dimension of the Kücükdeveci case relates to the way the Court, after asserting the constitutional status of the equal treatment norm at hand and giving it unprecedented effects, proceeds to an examination of the case on the basis of the legislative text. In other words, the reasoning combines the substance of the legislation with the legal effects of the constitutional right. In Dansk Industri, the Court built on this approach. The Court stressed that Directive 2000/​78 gives concrete expression to the principle. The Directive, noted the Court, is intended to facilitate the practical implementation of the principle by specifying exceptions to the principle.164 It further stated that the principle can only be directly applicable to disputes between private parties in situations that fall within the scope of the said Directive.165 The two layers of norms thus entertain a very intimate relationship. A related example of the confusion between the substance of secondary law and the authority of primary law can be found in the earlier Rinke case.166 It should be noted at the outset that the setting in this case was clearly distinct from those discussed earlier; it was primarily concerned with the judicial review of an EU act, instead of the effects at a domestic level of EU acts in horizontal disputes.167 On the one hand, the Court was faced with a tension between the wording of Articles 5(1) of Directive 86/​457 on specific training in general medical practice168 and 34(1) of Directive 93/​16 to facilitate the free movement of doctors and the mutual recognition of their diplomas, certificates and other evidence of formal qualifications169 and, on the other hand, the principle of equal treatment between men and women enshrined in Directive 76/​207 on sex equality in employment. The first set 164  Dansk Industri (DI), acting on behalf of Ajos A/​S v Estate of Karsten Eigil Rasmussen [2016] ECLI:EU:C:2016:278, para 23. 165  ibid, paras 24–​25. 166  Katharina Rinke v Ärztekammer Hamburg [2003] ECLI:EU:C:2003:435. Illustrating the confusion of the stakeholders: Opinion of Advocate General Geelhoed, Katharina Rinke v Ärztekammer Hamburg [2003] ECLI:EU:C:2003:77, paras 76–​79. This approach can usefully be contrasted with that adopted in Glatzel (Wolfgang Glatzel v Freistaat Bayern [2014] ECLI:EU:C:2014:350); and Léger (Geoffrey Léger v Ministre des Affaires sociales, de la Santé et des Droits des femmes and Etablissement français du sang [2015] ECLI identifier: ECLI:EU:C:2015:288); as well as Fries (Werner Fries v Lufthansa City Line GmbH [2017] ECLI:EU:C:2017:513), where no such confusion between legislation and constitutional law prohibiting disability and sexual orientation takes place. Instead, in Glatzel as well as Fries, the Court reasons by analogy when similar concepts exist in both layers of norms and indeed allow for parallels to be drawn. This technique is distinct from the use of concepts borrowed from one layer of norms in order to apply another layer of norms without explanation. See also Petya Milkova v Izpalnitelen direktor na Agentsiata za privatizatsia i sledprivatizatsionen control [2017] ECLI:EU:C:2017:198 with an odd situation falling within the scope of Directive 2000/​78 (n 109) without the technicalities of that directive being applicable. Note the reference to case law on Directive 2000/​78 to support the analysis of comparability for the purpose of applying the general principle of equal treatment, at paras 56–​57. 167  See also the discussion of the ruling in Strack in Chapter  4, section A, where the setting is similar: European Commission v Guido Strack [2013] ECLI:EU:C:2013:570. 168  Council Directive (EEC) 86/​457 of 15 September 1986 on specific training in general medical practice [1986] OJ L267/​26. 169  Council Directive (EEC) 93/​16 of 5 April 1993 to facilitate the free movement of doctors and the mutual recognition of their diplomas, certificates and other evidence of formal qualifications [1993] OJ L165/​13.

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of provisions required a certain number of periods of full-​time training for the preparation of general medical practitioners. According to the standard case law of the Court on sex equality in employment, it was fairly clear that a rule weighing more heavily on women (such as a requirement to be present on a full-​time basis) could constitute indirect discrimination unless it was objectively justified. As the facts of the case related to access to employment, though, it was not possible to test the compatibility of Articles 5(1) of Directive 86/​457 and 34(1) of Directive 93/​16 against Article 157(1) TFEU, which only prohibits sex discrimination in pay. Nor was it possible to test the validity of a directive addressed to the Member States against that of another directive equally addressed to the Member States. Back in 2003, the only higher ranking norm was therefore the general principle of equal treatment for men and women.170 While the Court relied on the authority of this norm of primary law for the purpose of judicial review, it reasoned with the conceptual tools (eg the distinction between direct and indirect discrimination171), and by reference to established case law related to secondary law on equal treatment, such as Directive 76/​ 207 itself, without explaining its reasons for doing so.172 In thereby blurring the boundaries between primary and secondary rights, the Court may be limiting the possibility for the EU’s political institutions to redefine the format and limits of EU fundamental rights policy through legislation in the future and thereby pressing the brake on the downloading and related political process.173 Admittedly, the emphasis on constitutional rights in Mangold, Kücükdeveci, and Dansk Industri post-​dates and builds on political guidance expressed in the form of legislation intended to give expression to the relevant fundamental right. Unlike in the field of sex equality, where, as explained earlier, many legal concepts were first defined by the Court through the interpretation of constitutional norms, in the age discrimination cases political institutions have expressed their preferences through legislation before the Court shifted emphasis on the corresponding constitutional norm. Nevertheless, the role of political guidance in this context remains limited for two reasons. First, the legislation shaping this new field of EU equality law partly builds on concepts developed in the context of sex equality law and is thus highly influenced by constitutional case law. Second, the new legislation is ‘ossified’174 at the outset. Amending such legislation will be difficult. Unanimity at the Council is 170  Katharina Rinke v Ärztekammer Hamburg [2003] ECLI:EU:C:2003:435, paras 24–​25. 171  ibid paras 32–​33. 172  ibid para 33. The reasoning of the Advocate General is more explicitly on that matter (Opinion of Advocate General Geelhoed, Katharina Rinke v Ärztekammer Hamburg [2003] ECLI:EU:C:2003:77, para 80) and so was the General Court in subsequent case law (European Commission v Guido Strack [2012] ECLI:EU:T:2012:588, para 42). The Advocate General also proposes a partial shift in the burden of proof: para 46. See also Evelyn Ellis and Philippa Watson, EU Anti-​Discrimination Law (OUP 2012), 138. 173  See also the Opinion of Advocate General Trstenjak, Maribel Dominguez v Centre informatique du Centre Ouest Atlantique and Préfet de la region Centre [2011] ECLI:EU:C:2011:559; and Maribel Dominguez v Centre informatique du Centre Ouest Atlantique and Préfet de la region Centre [2012] ECLI:EU:C:2012:33. 174  Opinion of Advocate General Trstenjak, Maribel Dominguez v Centre informatique du Centre Ouest Atlantique and Préfet de la région Centre [2011] ECLI:EU:C:2011:559, para 157.

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necessary in accordance with Article 19 TFEU and the content of any reform may have to be checked against the content of the old directive, which is informative as to the substance of the constitutional right to equal treatment.175 While EU sex and nationality equality law had been marked by supranational and constitutional forms of protection that largely pre-​empted political debate, the Article 19 TFEU directives are the outcome of political debates but have been largely removed from the political sphere since being adopted as a result of the case law.

(e) Conclusions: from pre-​empting to hindering political debate EU equality law is thus highly constitutionalized, not only due to the multiple references to equal treatment in EU constitutional law but also as a result of the Court’s dynamic reading of the key treaty provisions and legislation. One development leading to another, this approach risks pre-​empting political debate in the context of sex and nationality discrimination and re-​politicization as regards the Article 19 TFEU directives. As a result, the EU political institutions as well as the Member States have limited the possibilities of debating the supranationalization of this policy and its extent. Besides, articulating—​and blurring—​the relationship between different sources of EU law, the action of constituent powers, the judiciary, and the legislature may also end up in tension over the interpretation of the content and scope of equality law itself, as will now be seen.

2. Soul-​searching: how and where to acknowledge the political dimension of fundamental rights law-​making In a derivative legal order such as that of the EU, the interpretation of legislation adopted at the supranational level may raise questions of a constitutional nature. As important branches of EU equality law constitute shared competences and depend on the adoption of legislation, such legislation indeed defines the scope of EU intervention in the domestic sphere.176 It was noted earlier that these branches of EU equality law relate to the prohibition of discrimination on the new grounds covered in Article 19 TFEU (racial or ethnic origin, religion or belief, disability, age, or sexual orientation) as well as to the prohibition of discrimination on grounds of sex in employment contained in Article 157(3) TFEU (other than pay that is also directly regulated by Article 157(1) TFEU). EU legislation therefore defines the edges of EU intervention in relation to both prongs of equality law. The prohibition of nationality is constructed in a more complex way but similarly depends on EU legislation in so far as the rights of non-​economically active citizens are concerned. Indeed, Article 18 TFEU prohibits any discrimination on grounds of nationality within the scope of application of the Treaties and without prejudice to any special provisions contained therein. The scope of application of the Treaty is 175  See also the later discussion on Test-​Achats. 176  Protocol 25 on the exercise of shared competences, Sole Article.

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in particular determined by Article 21(1) TFEU on EU citizens’ right to move and reside freely but this right is also subject to limitations and conditions laid down in the Treaties and measures adopted to give them effect (ie legislation, for our purpose). The same holds true for Article 20 TFEU, which establishes EU citizenship, lists a set of related rights, and refers to the conditions and limits defined by the Treaty and by the measures adopted thereunder. In contrast with the rights of mobile and economic actors, which have long been regulated by specific and directly effective treaty provisions, the rights of non-​economically active citizens are more closely intertwined with EU legislation on the matter. The existence or absence of legislation may therefore mark the cut-​off point of active intervention by the EU in matters of equal treatment as covered by the said equal treatment provisions. In such settings, the interpretation of the content and scope of legislation has direct implications for the relationship between domestic and EU competences. Judicial interpretation of the perimeters of EU legislation giving expression to a fundamental right is a delicate exercise: the process by which political institutions have thought to circumscribe EU intervention may be reviewed against the fundamental right that the legislation is intended to shape. The Court’s views on the fundamental right at hand thus more ostensibly competes with those expressed by political authorities. There is also a risk of hijacking political debate by significantly interfering with the content and scope of rights defined in legislation. Three different settings in which the views of the judiciary and those of political institutions have been at odds over the content of EU equality legislation will now be presented. In each of them, the interaction between the relevant institutions was structured differently and also led to different results. Section B.2.a recalls early attempts at addressing the political dimension of sex equality law-​making. In those early cases, heavy reliance on treaty provisions made it difficult for the relevant actors to express and address disagreement. Section B.2.b illustrates a head-​on clash between judiciary and political institutions. Here the reason behind the clash may be not so much the level at which the debate was located (constitutional versus legislative) as the tone used by the key players: they competed to speak a strictly fundamental rights language so that the policy choices underlying the equal treatment legislation were hardly visible. Section B.2.c is more forward looking and seeks to draw lessons from the first two case studies. It illustrates the possibility for the judiciary to clearly acknowledge and follow political guidance identified as such by political institutions and provided through secondary legislation. Both the tone of the debate—​with political institutions making clear policy choices—​and the forum in which it takes place—​ie resisting the temptation of locating the discussion at constitutional level—​create interesting opportunities to articulate the political dimension of fundamental rights policy-​making.

(a) Discomfort with addressing disagreement at constitutional level In the cases discussed herein, the EU judiciary placed an interpretative straitjacket on legislative clauses intended to give leeway to the Member States. Either the Court,

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in the Barber saga on the scope of the prohibition of discrimination on grounds of sex in matters of pensions, or the constituent powers, in the positive action cases, framed the controversy in constitutional terms. The problem with this approach, as will now be illustrated, is that the constitutional nature of the debate significantly hinders opportunities for adjustments to respond to policy arguments. (i) Reluctance by treaty-​makers to reverse the Court’s case law framed in constitutional terms: the Barber saga A case devoid of references to fundamental rights but usefully illustrating the tension between constitutional and legislative forms of protection is the Barber case of 1990.177 In that case, the Court asserted that contracted-​out private occupational pension schemes were covered by the notion of ‘pay’ as enshrined in Article 157(1) TFEU.178 That assertion was made despite the fact that an earlier Directive on sex equality in occupational social security179 from 1986 authorized Member States to defer compulsory implementation of the principle of equal treatment with regard to the determination of pensionable ages for the purpose of granting an old-​age pension and possible consequences thereof for other benefits (Article 9(a) of the 1986 Directive).180 In bringing contracted-​out private occupational pension schemes within the scope of Article 157(1) TFEU,181 the Court provided a ‘sotto voce indication that the exception contained in Article 9 of the Directive . . . was contrary to the directly effective terms of [Article 157(1) TFEU]’.182 Indeed, the ruling meant that exceptions to the principle of equal treatment between men and women enshrined in the Directive on sex equality in occupational social security could be found to breach the higher norm. As a token of acknowledgement of this interference in political guidance available through EU legislation, and out of concern for legal certainty,183 the Court limited the temporal effect of its judgment. Claims directly based on Article 157(1) TFEU could not relate to entitlement to a contracted-​out occupational pension scheme ‘with effect from a date prior to the Barber ruling’.184 This limited the ability of

177  Douglas Harvey Barber v Guardian Royal Exchange Assurance Group [1990] ECLI:EU:C:1990:209. 178  ibid para 28. 179  Council Directive (EEC) 86/​378 (n 93). 180  Douglas Harvey Barber v Guardian Royal Exchange Assurance Group [1990] ECLI:EU:C:1990:209, para 42. Note that Article 9(1) of Directive 86/​378 (n 93) read as follows: ‘Member States may defer compulsory application of the principle of equal treatment with regard to: (a) determination of pensionable age for the purposes of granting old-​age or retirement pensions, and the possible implications for other benefits: either until the date on which such equality is achieved in statutory schemes, or, at the latest, until such equality is required by a directive.’ 181  Note that the ruling in Barber built on earlier jurisprudential developments in which the Court asserted that supplementary pension schemes fell within the scope of Article 157(1) TFEU but that pre-​dated the adoption of Council Directive (EEC) 86/​378 (n 93): Bilka-​Kaufhaus GmbH v Karin Weber von Hartz [1986] ECLI:EU:C:1986:204, paras 20–​21, pre-​dating by a few weeks the adoption of Directive 86/​378 on the implementation of the principle of equal treatment for men and women in occupational social security schemes. 182  Curtin (n 142) 476, 482, and 490. 183  Douglas Harvey Barber v Guardian Royal Exchange Assurance Group [1990] ECLI:EU:C:1990:209, paras  42–​43. 184  ibid para 45.

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litigants to rely directly on Article 157(1) TFEU in equal treatment claims on matters that could ‘reasonably’ have been considered not to be covered by that treaty article in the light of available legislative guidance.185 The exact timeframe set by the Court, however, was unclear. In a subsequent protocol attached to the Treaty on European Union in 1992,186 it was further stated that benefits shall not be considered as pay ‘if and in so far as they are attributable to periods of employment prior to 17 May 1990’.187 The so-​called ‘Barber Protocol’ effectively meant that the principle of equality in pension schemes, as mandated by Article 157 TFEU, would not be fully introduced for another forty years.188 In other words, the constituent powers adopted an extensive reading of the temporal limitation introduced by the Court in Barber.189 In bringing the matter of subcontracted private occupational pension schemes within the scope of Article 157(1) TFEU, the Court relocated the constitutional embedding of this subcategory of equality law: it went from being governed by mere enabling provisions to being covered by treaty provisions performing a dual function, including the immediate definition of EU regulatory intervention in domestic policies.190 Reliance on Article 157(1) TFEU thus allowed the Court to directly define the scope and content of EU intervention in the field irrespective of the existing legislative guidance. It has been argued that the Court thereby ‘scalped the Community legislator’,191 which had attempted in the Directive of 1986 to define itself the (complex and sensitive) interplay between the principle of sex equality and occupational social security schemes.192 In more nuanced terms, following up on our analysis of Defrenne II, it can be asserted that the Court interfered with legislative guidance by framing the debate in constitutional terms. Yet, what is also interesting in the Barber ruling is the Court’s explicit acknowledgement of the political implications of its ruling as well as, in turn, the response from the Member States. Indeed, the sequence of events features: (i) an attempt of the legislature to take the upper hand as regards the shaping of EU equality law in a particularly sensitive and complex field in the form of the Directive of 1986; (ii) the Court’s recalling its ultimate authority over the matter in the Barber case by relying on Article 157(1) TFEU; (iii) the Court’s simultaneous acknowledgement of the potential implications of its interference in political guidance resulting in a temporal limitation of the ruling; and (iv) further limitation of the temporal effects of the ruling by the constituent powers in a protocol attached to the Treaty on European Union. 185  ibid para 43. 186  Protocol concerning Article 119 of the Treaty Establishing the European Community [1992] OJ C224/​104. 187 In Barber as well as in the Protocol, exception was made for workers or those claiming under them who before that date initiated legal proceedings or introduced an equivalent claim under the applicable national law. 188  Deirdre Curtin, ‘The Constitutional Structure of the Union: A Europe of Bits and Pieces’ (1993) 30 CML Rev 17, 51. 189  Soon after, the Directive on sex equality in occupational social security was itself amended (Council Directive (EC) 96/​97 of 20 December 1996 amending Directive 86/​378/​EEC on the implementation of the principle of equal treatment for men and women in occupational social security schemes [1997] OJ L46/​20), and the Article 9(a) exception at stake in Barber adjusted. 190  See section A.2. 191  Paraphrasing Curtin (n 142). 192  ibid 476, see further 477–​78.

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The third and fourth stages of this saga are remarkable. The judiciary explicitly addresses the political implications of its ruling, unlike in the Test-​Achats case, discussed later. The constituent powers subsequently react by keeping the exit route offered to them through the temporal limitation as wide open as possible. This is a rare example of the constituent powers showing impatience with the Court.193 Admittedly, the Member States’ response to the judiciary may result from a coincidence of two factors: the unclear wording of the time limitation in the Barber ruling as well as the subsequent occurrence of a treaty revision. Nevertheless, this rough sketch of a dialogue between the judiciary and constituent powers is intriguing. It is remarkable that the Member States did not use the Maastricht Treaty as an opportunity to overrule Barber. They limited themselves to expressing their discontent in an explanatory protocol. This may suggest that once the debate on equality law-​making is framed in constitutional terms, with the Court relying on EU primary law, little can or will be done by political actors—​here, treaty-​makers—​to respond: presumably out of fear of unsettling the institutional balance within the EU. (ii) Reluctance by the judiciary to engage with political guidance framed in constitutional terms: the debate on positive action Another interesting example of a clause in EU equal treatment legislation on which the Court has imposed a specific interpretation relates to positive action. This line of cases also triggered a response by the constituent powers. Here, the Treaty of Amsterdam revision provided an opportunity to amend directly the relevant treaty provision so that the Member States responded to the Court’s case law owing to the constitutional amendment. As we shall see, however, to date the Court has not addressed the impact that this treaty revision may have on its case law. The starting point is Article 2(4) of Directive 76/​207, which provided that the Directive ‘shall be without prejudice to measures to promote equal opportunity for men and women, in particular by removing existing inequalities which affect women’s opportunities’. This provision illustrates the inherent tension between the EU prohibition of discrimination and the Member States’ views on how best to achieve equal treatment in practice. Indeed, what is in question here is the compatibility of national initiatives involving positive action with the EU principle of equal treatment.194 The Court was asked to clarify the boundaries of Article 2(4) of Directive 76/​207 on several occasions.195 In the first case on the issue, Kalanke,196 the Court 193  Marcus Höreth, ‘The Least Dangerous Branch of European Governance? The European Court of Justice under Checks and Balances Doctrine’ in Mark Dawson, Elise Muir, and Bruno De Witte (eds), Judicial Activism at the European Court of Justice (Edward Elgar 2013) 32, 43. 194  It can be recalled that a Council Recommendation from the middle of the 1980s specifically suggested that Member States adopt positive action in favour of women (Council Recommendation (EEC) 84/​635 of 13 December 1984 on the promotion of positive action for women [1984] OJ L331/​34). 195  Cases involving positive action but not concerned with access to employment will not be discussed here: Julia Schnorbus v Land Hessen [2000] ECLI:EU:C:2000:676; Joseph Griesmar v Ministre de l’Economie, des Finances et de l’Industrie and Ministre de la Fonction publique, de la Réforme de L’Etat et de la Décentralisation [2001] ECLI:EU:C:2001:648, paras 64–​66; H Lommers v Minister van Landbouw, Natuurbeheer en Visserij [2002] ECLI:EU:C:2002:183, para 38. 196  Eckhard Kalanke v Freie Hansestadt Bremen [1995] ECLI:EU:C:1995:322.

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was called upon to scrutinize a national rule according to which women are automatically given priority over equally qualified men for promotion in sectors where they are under-​represented. According to the Court, this constitutes sex discrimination. It is true that Article 2(4) of Directive 76/​207 provides for an exception to the prohibition of sex discrimination; it should, however, be interpreted strictly. An ‘absolute and unconditional priority’197 in the appointment or promotion of the under-​represented sex was found to go beyond the limits of Article 2(4) of Directive 76/​207. Equality of result could not be substituted with equality of opportunity as referred to in the said article.198 Kalanke was promptly identified as one of the most controversial equality judgments of the time. The judiciary had made a ‘clear legal policy choice’199 against the instruments of positive action in question. Even the Commission suggested a narrow reading of the judgment,200 thus offering ‘some palliative[s]‌’ to critics.201 The second case is Marschall.202 The facts in that case were slightly different: the national provision giving priority to female candidates included a saving clause that could tilt the balance in a male candidate’s favour if certain conditions were fulfilled. According to the Court, this could fall within the exceptions set out in Article 2(4) of Directive 76/​207, and therefore not be in breach of EU law if ‘in each individual case, [the mechanism] 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 individual candidates and will override the priority accorded to female candidates where one or more of those criteria tilts the balance in favour of the male candidate’.203 It was said that this should not result in discrimination against female candidates, a situation which was left for the national court to assess. The Court thereby sharpened its understanding of acceptable positive action in favour of the under-​represented sex. Article 2(4) of Directive 76/​207 is ‘specifically and exclusively designed to authorise measures which, although discriminatory in appearance, are in fact intended to eliminate or reduce actual instances of inequality which may exist in the reality of social life’.204 National measures seeking to improve women’s ability to ‘compete on the labour market’ ought therefore to be authorized.205 The Court accepted the view that partly due to prejudices and stereotypes, even with equal qualifications, men rather than women tend to be promoted.206 The judgment in Marschall was considered to be a positive step towards a more 197  ibid para 22. 198  ibid para 23. 199  Paul Davies and Mark Freedland, ‘European Union Employment and Social Policy’ (1995) 15 YEL 441. 200  Commission (EC), ‘Communication from the Commission to the European Parliament and the Council on the interpretation of the Court of Justice on 17 October 1995 in Case C-​450/​93, Kalanke v Freiehansestadt Bremen’ COM (96) 88 final, 27 March 1996. 201  Erika Szyszczak, ‘Positive Action after Kalanke’(1996) 59 MLR 882. 202  Helmut Marschall v Land Nordrhein-​Westfalen [1997] ECLI:EU:C:1997:533. 203  ibid para 33. 204  ibid para 26. 205  ibid para 27. 206  ibid paras 29–​31.

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substantive understanding of sex equality and of granting a broader margin of manoeuvre for the Member States in defining their own equality policies compared to Kalanke.207 Until the Treaty of Amsterdam emerged, the Court had little political guidance other than Article 2(4) of Directive 76/​207.208 In the Social Agreement Protocol to the Treaty of Maastricht it was made clear that the principle of equal pay for equal work ‘shall not prevent any Member State from maintaining or adopting measures providing for specific advantages in order to make it easier for women to pursue a vocational activity or to prevent or compensate for disadvantages in their professional careers’.209 When this provision was inserted into what is now Article 157(4) TFEU (ex-​Article 141(4) of the Treaty establishing the European Community (TEC)) following the Treaty of Amsterdam, it was slightly modified.210 Its scope now goes beyond pay to cover gender equality in working life. Rather than an exclusive reference to women, any action in favour of the under-​represented sex is covered. Lastly, a reference to ‘full equality in practice’ was introduced.211 The constituent powers were thus unquestionably calling for the Court to accept a wider range of domestic positive action measures.212 Despite these changes in the Treaty from 1999 onwards, Article 2(4) of Directive 76/​207 remained unchanged until 2002.213 Subsequent cases have therefore been brought within the same legislative framework as in earlier cases but with new treaty provisions. Interestingly, the new Article 157(4) TFEU has had little impact on subsequent case law.214 In the first cases post-​dating the entry into force of the Amsterdam Treaty, the Court adopted a rather hasty formula215 seemingly limit­ ing the added value of the new Article 157(4) TFEU proviso.216 For instance, in 207  Dagmar Schiek, ‘Sex Equality Law after Kalanke and Marschall’(1998) 4 ELJ 166. 208  Louis Charpentier, ‘The European Court of Justice and the Rhetoric of Affirmative Action’ (1998) 4 ELJ 178. 209  Social Agreement, Article 6(3). 210  Also Declaration 28 on Article 119(4) TEC [1997] OJ C340/​136. 211  The same formula appears in the Lisbon Treaty. The Charter of Fundamental Rights addresses the issue along similar lines without, nevertheless, being as detailed (Article 23 CFEU). For a critical assessment of the revised explanatory memorandum on the Charter, see Mark Bell, ‘Equality and the European Union Constitution’ (2004) 33 ILJ 242, 250. 212  Erica Howard, ‘The European Year of Equal Opportunities for All—​2007: Is the EU Moving Away from a Formal Idea of Equality?’ (2008) 14 ELJ 168, 175–​76; Miguel Maduro, ‘La Cour de justice des Communautés européennes et la législation d’anti-​discrimination’ (2005) 2 Revue du droit Européen Relatif à la Non-​Discrimination 21, 25 et seq. 213  When Directive 76/​207 was amended by Council Directive (EC) 2002/​73 of 23 September 2002 amending Council Directive 76/​207/​EEC on the implementation of the principle of equal treatment for men and women as regards access to employment, vocational training and promotion, and working conditions [2002] OJ L269/​15; see Article 1(2) with the new provision on positive action referring to the Treaty provision inserted by the Amsterdam Treaty. 214  Takis Tridimas, The General Principles of EU Law (2nd edn, OUP 2006) 117–​18. 215  Sophia Koukoulis-​Spiliotopoulos, ‘The Amended Equal Treatment Directive (2002/​73):  An Expression of Constitutional Principles/​Fundamental Rights’ (2005) 12 MJ 327, 338. 216 In Georg Badeck and others, interveners:  Hessische Ministerpräsident and Landesanwalt beim Staatsgerichtshof des Landes Hesse [2000] ECLI:EU:C:2000:163, paras 14 and 67, the Court did not consider it necessary to look at the new Treaty article, although it was implicitly confirmed that this article would tolerate positive action to a larger extent than Directive 76/​207. Overall, the case could

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Briheche,217 a national provision in favour of women provided an exemption from the age limit for recruitment in the public sector for widows who had not remarried and were obliged to work. This exemption was not, however, available for widowers. The Court considered that this exclusion was too automatic and unconditional218 to be compatible with Directive 76/​207. It went on to consider whether it could be allowed or ‘saved’ by reference to Article 157 (4) TFEU. The Court concluded that ‘it is sufficient to state that [Article 157(4) TFEU] cannot permit the Member States to adopt conditions for obtaining access to public-​ sector employment of the kind in question in the main proceedings which prove in any event to be disproportionate to the aim pursued’.219 Despite the ruling against the positive action measure at hand and the cursory reference to Article 157(4) TFEU, the fact that the Court decided to look at the proportionality of national positive measures can be considered as an improvement compared to earlier case law. It is a methodological step away from the narrow approach adopted in Kalanke220 and thus possibly a discreet alignment with political guidance in the aftermath of the Treaty of Amsterdam. One is struck, however, by the terseness of the Court in its reply to a dialogue initiated by the drafters of the Treaty through the drafting of Article 157(4) TFEU.221 The reasoning through which the Court first attempts to save a provision prohibited under Directive 76/​ 207 by reference to a new treaty provision, and then its swift dismissal of the argument without further discussion, may be disappointing. What is at stake here is the tension between the EU prohibition of discrimination, Member States’ choices on how best to pursue equality in practice, and a clear call from the constituent powers to provide more flexibility. What is noticeable from these developments is the message sent to the Court of Justice by the Member States through a treaty revision as well as the Court’s very discreet response. Perhaps because it deems its post-​Kalanke case law to be in line with be considered as building on the more substantive approach of equality adopted by the Court in Marschall (Advocate General Saggio, Georg Badeck and others, interveners: Hessische Ministerpräsident and Landesanwalt beim Staatsgerichtshof des Landes Hessen [1999] ECLI:EU:C:1999:287, paras 26–​28; and Catherine Barnard and Bob Hepple, ‘Substantive Equality’ (2000) 59 CLJ 578). In Abrahamsson (Katarina Abrahamsson and Leif Anderson v Elisabet Fogelqvist [2000] ECLI:EU:C:2000:367) the Court took an approach comparable to that in Briheche and did not question the legitimacy of the positive action as such but rather focused on its proportionality. 217  Serge Briheche v Ministre de l’Intérieur, Ministre de l’Education nationale and Ministre de la Justice [2004] ECLI:EU:C:2004:574. 218  ibid para 27. 219  ibid para 31. In a more recent case, Roca-​Alvarez (Pedro Manuel Roca-​Alvarez v Sesa Start Espana ETT SA [2010] ECLI:EU:C:2010:561, para 38), the Court reasserted that Article 2(4) of the Directive aimed to achieve substantive equality by preventing or compensating disadvantages in accordance with Article 157(4) TFEU but did not actually apply these provisions. 220  Cathryn Costello and Gareth Davies, ‘The Case Law of the ECJ in the Field of Sex Equality since 2000’ (2006) 43 CML Rev 1597, 1601; and Tridimas (n 214) 117. It can also be argued that the facts at hand in these cases tilted the balance against Member States: Advocate General Saggioin, Katarina Abrahamsson and Leif Anderson v Elisabet Fogelqvist [1999] ECLI:EU:C:1999:556, para 27; and Advocate General Maduro, Serge Briheche v Ministre de l’Intérieur, Ministre de l’Education nationale and Ministre de la Justice [2004] ECLI:EU:C:2004:398, para 52. 221  Tridimas (n 214) 117.

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the new Article 157(4) TFEU,222 the Court has largely avoided engaging with the changes introduced at treaty level. It kept its reasoning on the relevant treaty provision to the strict minimum. While the Barber saga highlighted the reluctance of treaty-​makers to depart from the Court’s judicial interpretation of a treaty provision, the cases on positive action illustrate the Court’s reluctance to respond to relevant changes at the constitutional level. (iii) Looking for the appropriate tone and level to address the policy implications of equality law-​making Both sets of examples illustrate that the dialogue between judicial and political guidance at the constitutional level is highly static even in the rare cases in which treaty-​ makers did seek to respond to the Court’s case law. This may be due to a combination of factors, including the level at which the legal debate is framed as well as the difficulty of choosing the right tone. As the legal controversies involve constitutional norms, both the judiciary and treaty drafters have an interest in not addressing the political dimension of the debate. For the Court, acknowledging the political dimension of fundamental rights law-​making would amount to a significant loss of influence as the protection of fundamental rights has historically been in its hands.223 For the drafters of the Treaty, asserting the political dimension of fundamental rights by intruding more explicitly in the Court’s case law—​as could have been done in reaction to the Barber case—​may affect the authority of rights that they are intending to place above ordinary law-​ making processes. This institutional dilemma reflects a rather static vision of fundamental rights. Yet, this vision matches the mindset that triggered the uploading of fundamental rights in the first place,224 and purportedly placed the protection of fundamental rights at constitutional level. Simultaneously, though, an examination of the tone or vocabulary chosen in the cases discussed in this section (section B.2.a) points to the absence of the fundamental rights discourse. This is despite the fact that the controversies touch upon the outer edges of EU law in the field of sex equality, which is recognized as one of the fundamental rights whose observance the Court had a duty to ensure well before the emergence of the cases.225 Admittedly, as evidenced in the introduction, the interaction between the legislation on sex equality and the fundamental right to equal treatment was not as clearly expressed as it is today when the Barber and positive action disputes unfolded. Yet, and this is perhaps precisely why the interplay between the constitutional right to equal treatment and related legislation needed time to take shape, there may be a deeper reason for the discomfort of Court and treaty drafters in this field: the difficulty of addressing the political dimension of

222  This could be one reading of Katarina Abrahamsson and Leif Anderson v Elisabet Folgeqvist [2000] ECLI:EU:C:2000:367, paras 48 et seq. 223  See section A.1. 224  See Chapter 2, section A. 225 Paraphrasing Gabrielle Defrenne v Société anonyme belge de navigation aérienne Sabena [1978] ECLI:EU:C:1978:130, paras 26–​27.

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fundamental rights policy-​making without affecting the fundamental right to equal treatment itself.

(b) Acknowledging the political limits of principled legislation: lessons from Test-​Achats With the insertion of (what is now) Article 19 in the TFEU, the Member States received a clear mandate through the Council—​clearer than before—​to legislate in order to protect and promote the fundamental right to equal treatment. The directives consequently adopted are therefore examples of EU legislation worded particularly clearly and explicitly in fundamental rights terms. The legislature has expressed its views on the content and shape of EU fundamental rights, thus competing more ostensibly with what until then had been the realm of the EU judiciary. This led to a vivid conflict between the EU judiciary and EU political institutions on how to shape the fundamental right to equal treatment between men and women at the European level. The Test-​Achats226 case provides the most spectacular clash to date between the judiciary and political institutions on how to articulate the fundamental right to equal treatment. The Court invalidated a derogatory regime built in the Directive implementing the principle of equal treatment between men and women in the access to and supply of goods and services. That Directive had been agreed upon unanimously by the Member States in the Council and gave expression to the fundamental right to equal treatment. It was found by the Court, however, to breach the same higher ranking principle of equal treatment to which it gives expression. The ruling had further important practical consequences as, by declaring the derogation invalid, the Court actually ‘enhanced’227 the scope of the EU prohibition against discrimination and broadened EU constraints on domestic players.228 The specifics of the case allow it to be distinguished from those discussed earlier. The Court had been asked to rule on the validity of Article 5(2) of the Directive implementing the principle of equal treatment between men and women in the access to and supply of goods and services.229 This provision allowed Member States to decide before 21 December 2007 whether to permit differences in insurance premiums and benefits based on one’s sex, under the condition that such differences indeed reflect situations where sex is a determining factor in the assessment of risks. 226  Association Belge des Consommateurs Test-​Achats ASBL and others v Conseil des ministres [2011] ECLI:EU:C:2011:100. 227  Whether the position of the Court in such settings ultimately results in greater protection for the relevant categories of vulnerable people is sometimes open to debate: see, for example, controversies surrounding the Court’s restrictive approach to national measures of positive action in favour of women, at section B.2.a.ii. 228  Note that in her opinion in the Test-​Achats case, Advocate General Kokott stresses that EU political institutions cannot evade fundamental rights review by arguing that they could simply have taken no action: Opinion of Advocate General Kokott, Association Belge des Consommateurs Test-​Achats ASBL and others v Conseil des ministres [2010] ECLI:EU:C:2010:564, para 35. 229  Council Directive (EC) 2004/​113 (n 102) implementing the principle of equal treatment between men and women in the access to and supply of goods and services [2004] OJ L373/​37.

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No temporal limitation was placed on the use of this provision. The logic behind the derogation was that where evidence shows that sex can be a determining factor of risk for insurance purposes, it may be argued that men and women are not in a comparable situation and thus the principle of equal treatment implemented by the Directive would not be applicable. The Court refused to look at the derogation in isolation from the rest of the Directive. It stressed that comparability should be assessed ‘in the light of the subject-​matter and purpose of the EU measure which makes the distinction’.230 As the preamble to the Directive set out the possibility for the Member States not to apply equal treatment to certain premiums as an ‘exemption’, this meant a contrario that the Directive was based on the assumption that all premiums and benefits fell within the scope of the equal treatment principle.231 The Court therefore stressed that a derogation of unlimited duration to a fundamental principle of EU law would violate that principle. Article 5(2) of the Directive was therefore declared invalid from 21 December 2012 onwards.232 Unlike the Advocate General, the Court did not discuss the severability of the clause from the main body of the Directive,233 nor did the Court explain its decision on the timeframe for the declaration of invalidity.234 However, the Directive became a much firmer instrument for the promotion of sex equality after the deadline imparted by the Court. This ruling has been identified as the ‘most direct conflict between the political views of the legislature on how to achieve a certain goal . . . and the views of the Court on how to achieve it’.235 There are two reasons why this ruling illustrates such a spectacular clash. First, the Court corrects the legislature in a context in which the latter had been specifically entrusted by the TFEU to give shape to the said fundamental right. The fundamental rights implications of the Directive were anything but ancillary and the legislature’s choices anything but accidental. Second, both the legislature and the Court expressed themselves in fundamental rights terms. The legislature attempted to reason out the derogation by reference to the comparability criterion inherent in the legal construction of the principle of equal treatment. The Court tested the derogatory regime against the fundamental right to equal treatment itself. Both the constitutional mandate of each institution and their respective tones thus lead to a head-​on collision. Davies has suggested that the legislature might have been granted a greater margin of manoeuvre if, instead of reasoning this derogation by using the technicalities of EU equality law—​ie making a point on comparability236—​it had more explicitly 230  Association Belge des Consommateurs Test-​Achats ASBL and others v Conseil des ministres [2011] ECLI:EU:C:2011:100, para 29. 231  ibid para 30. See further Christa Tobler, ‘Case C-​236/​09, Association belge des Consommateurs Test-​Achats ASBL, Yann van Vugt, Charles Basselier v. Conseil des ministres, Judgment of the Court of Justice (Grand Chamber) of 1 March 2011’ (2011) 48 CML Rev 2041, 2053–​54. 232  Association Belge des Consommateurs Test-​Achats ASBL and others v Conseil des ministres [2011] ECLI:EU:C:2011:100, para 34. 233  Opinion of Advocate General Kokott, ibid para 71. 234  ibid paras 78–​82. Tobler (n 231) 2058. 235  Gareth Davies, ‘Legislative Control of the European Court of Justice’ (2014) 51 CML Rev 1579, 1596. 236  Examining the details of the Court’s reasoning on this point, see Tobler (n 231) 2054.

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addressed the policy considerations at hand.237 For instance, the legislature could have explained which distinctions it deemed justified and why. In doing so, as Davies suggests, the legislature would have argued on the basis of its own expertise and avoided the more abstract and principled realm which the Court considers to be its domain. This argument echoes the concern expressed earlier on in this book that the fundamental rights discourse may take away from the variety and complexity of interests that political institutions ought to balance.238 Political institutions should thus be invited to make the political dimension of (fundamental rights) legislation and its limits explicit and clear. In more carefully choosing its wording, articulating its arguments, and resisting the temptation to use a fundamental rights discourse in selected circumstances, the EU legislature may indeed make a more powerful call on the Court to acknowledge the inherently political nature of specific choices.

(c) A clear line between the roles of political institutions and the judiciary? While addressing disagreement at the constitutional level proved difficult (see the case of Barber and the positive action saga) and a principled approach in EU fundamental rights legislation led to a direct shock between political institutions and the judiciary (Test-​Achats), a final set of examples may offer interesting perspectives of development. These examples illustrate a frank approach to the political dimension of fundamental rights law-​making as well as deference to secondary legislation to define the perimeters of EU law. A clear line is thus drawn between the respective functions of constitutional and legislative provisions and also between the role of the judiciary and that of the legislature. (i) Declining to broaden the scope of EU equality law through constitutional adjudication: the Grant case A case in which the Court drew a much more explicit line between supranational, constitutional, and legislative forms of protection with clear deferral of the ultimate choice to political actors is Grant.239 Ms Grant’s employer refused to grant travel concessions to her female partner. The Court was asked to provide guidance on whether differences of treatment based on sexual orientation are covered by the prohibition of discrimination based on sex contained in Article 157(1) TFEU. The Court answered in the negative. By distinguishing between the respective functions of the general principles of EU law (acting as a constitutional benchmark) and Article 157(1) TFEU (which has a dual function as constitutional benchmark and direct regulatory tool),240 the Court insisted that fundamental rights protected as general principles of law cannot in themselves have the effect of extending the scope of the treaty provisions beyond 237  Davies (n 235) 1597. 238  See von Bogdandy Chapter 2, section B. 239  Lisa Jacqueline Grant v South-​West Trains Ltd [1998] ECLI:EU:C:1998:63. See also, more recently, David L Parris v Trinity College Dublin and others [2016] ECLI:EU:C:2016:897, paras 57–​59, 73–​76, and  80–​81. 240  See section A.

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the competences of the EU.241 Turning more specifically to Article 157(1) TFEU the Court stressed that EU law as it stood at the time did not cover discrimination based on sexual orientation.242 Meanwhile, the Court highlighted the existence of a new provision in the Treaties (the current Article 19(1) TFEU) that enabled the adoption of EU legislation to eliminate various forms of discrimination, including discrimination based on sexual orientation.243 Shortly after the ruling and the entry into force of the Treaty of Amsterdam, the Commission tabled a proposal that led to the adoption of the current Directive 2000/​78. This prohibited, inter alia, discrimination on grounds of sexual orientation in employment. The case thus provides a straightforward example of a clear delineation of the role of constituent power, judiciary, and political institutions in defining the scope of supranational intervention on matters of fundamental rights protection. The Court had indeed resisted the temptation to creatively interpret the notion of sex equality and enshrine its choice in EU constitutional law. (ii) De-​constitutionalizing the perimeters of EU equality law: from Martínez Sala to Brey et al While in Grant the Court declined to broaden the scope of EU constitutional provisions, in a series of recent cases on the rights of mobile EU citizens who do not perform an economic activity, the Court used a different technique: it ‘de-​constitutionalized’ its understanding of key aspects of the prohibition of nationality discrimination (enshrined in Article 18(1) TFEU). In other words, the Court moved the discussion to the secondary law level, having kept it at the primary law level for many years. The story starts in the late 1990s, when the Court’s ruling in Martínez Sala244 captured the imagination of lawyers by asserting that a mobile EU citizen245 ‘lawfully resident in the territory of the host Member State, can rely on [Article 18 TFEU] in all situations which fall within the scope ratione materiae of [Union] law’.246 Furthermore, a situation would fall within the scope ratione materiae of Union law if the: Member State delays or refuses to grant to that claimant a benefit [covered by Regulations 1408/​71247 and 1612/​68248] that is provided to all persons lawfully resident in the territory of that State on the ground that the claimant is not in possession of a document which nationals of that same State are not required to have and the issue of which may be delayed or refused by the authorities of that State.249

The Court thereby decoupled the personal scope of the EU prohibition of nationality discrimination from specific requirements established by EU legislative 241  Lisa Jacqueline Grant v South-​West Trains Ltd [1998] ECLI:EU:C:1998:63, para 45. 242  ibid para 47. 243  ibid para 48. 244  María Martínez Sala v Freistaat Bayern [1998] ECLI:EU:C:1998:217. 245  ibid para 61. 246  ibid para 63. 247  Council Regulation (EEC) 1408/​71 of 14 June 1971 on the application of social security schemes to employed persons and their families moving within the Community [1971] OJ L149/​2. 248  Council Regulation (EEC) 1612/​68 of 15 October 1968 on freedom of movement for workers within the Community [1968] OJ L257/​2. 249  María Martínez Sala v Freistaat Bayern [1998] ECLI:EU:C:1998:217, para 63.

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instruments.250 It was now enough to be an EU citizen lawfully residing in another Member State under the law of that Member State251 to benefit from the prohibition of nationality discrimination (Article 18(1) TFEU) in order to obtain a benefit covered by specific EU legislation. This was remarkable progress for non-​economically active persons. Before that their equal treatment rights did not have constitutional status in EU law and only legislative instruments setting specific ratione personae requirements applied to them before they could be granted a limited set of rights.252 This framed the debate on EU mobile and economically inactive citizens’ equal treatment rights in constitutional terms, despite the proviso in the treaty articles on EU citizenship (Articles 20(2) and 21(1) TFEU) and the general prohibition of nationality discrimination (Article 18(1) TFEU) referring to the limits of the Treaty and to its scope of application as possibly defined in legislation.253 In interpreting the principle of equal treatment for mobile EU citizens in such an innovative way, the Court limited the possibility for the EU legislature to influence the personal scope of the said principle. In 2004, EU political institutions adopted Directive 2004/​38 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States (the Citizenship Directive).254 According to this Directive, and building upon earlier legislative guidance, a pre-​condition for a non-​economically active person to have lawful residence for more than three months in another Member State under EU law is to have ‘sufficient resources for themselves and their family members not to become a burden on the social assistance system of the host Member State during their period of residence and have comprehensive sickness insurance cover in the host Member State’.255 Lawful residents would then enjoy equal treatment on grounds of nationality; this was repeated in Article 24(1) of the Directive subject to certain conditions, including an exception to the effect that: . . . the host Member State shall not be obliged to confer entitlement to social assistance during the first three months of residence or, where appropriate, the longer period provided for in Article 14(4)(b) [establishing specific conditions for work seekers] to persons other than workers, self-​employed persons, persons who retain such status and members of their families.256

In other words, the Member State’s concern to protect their social assistance systems against overburdening influenced both the conditions to obtain lawful residence in another Member State under EU law and equal treatment rights. 250  ibid paras 45 and 56–​62. See further Siofra O’Leary, ‘Putting Flesh on the Bones of European Union Citizenship’ (1999) 24 EL Rev 68, 77–​78. 251  María Martínez Sala v Freistaat Bayern [1998] ECLI:EU:C:1998:217, para 47. 252  See Council Directive (EEC) 90/​366 of 28 June 1990 on the right of residence for students [1990] OJ L180/​30; Council Directive (EEC) 90/​365 of 28 June 1990 on the right of residence for employees and self-​employed persons who have ceased their occupational activity [1990] OJ L180/​28; and Council Directive (EEC) 90/​364 Directive (EEC) 90/​364 on the right of residence [1990] OJ L180/​26. 253 See later discussions on Elisabeta Dano and Florin Dano v Jobcenter Leipzig [2014] ECLI:EU:C:2014:2358. 254  Directive (EC) 2004/​38 (n 90). 255  ibid Article 7(1)(b). 256  ibid Article 24(2).

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Despite this fresh legislative guidance, the Court continued to reason directly on the basis of treaty provisions on issues concerned with equal treatment rights of mobile and economically inactive EU citizens.257 In doing so it largely disregarded the concern expressed by political institutions to make economically inactive migrants’ residence—​and therefore equal treatment rights under EU law—​conditional upon having a ‘sufficient’ level of resources. A move away from this constitutional approach towards de-​constitutionalization was initiated by the Brey case of 2013. This redirection was confirmed in three subsequent cases.258 The characteristics of this new case law can be summarized as follows. To start with, the Court now declines to reason on the basis of treaty provisions on citizenship and nationality discrimination; it focuses instead almost exclusively on guidance provided in secondary legislation. Although this is visible in all four cases,259 it is particularly clear in Dano, where the Court had been specifically asked to reason on the basis of EU constitutional law but refused to do so. The Court indeed raised the fact that the Charter could only be applied within the scope of Union law. As the situation was not covered by EU secondary legislation, this condition was not fulfilled in the case at hand.260 In other words, the Court refused to look at whether the treaty provisions on EU citizenship and nationality discrimination could bring the matter within the scope of EU law despite the limitations enshrined in secondary legislation. The Court further explained elsewhere in the ruling that protection of non-​economically active mobile citizens against nationality discrimination, when this occurred outside the scope of the Citizenship Directive, would run counter to one of the Directive’s objectives: to prevent such citizens from becoming an unreasonable burden on the social assistance system of the host Member State.261 In other words, the Court did a methodological U-​turn on its earlier case law whereby such equal treatment rights were granted to all by direct reference to the treaty provisions on nationality discrimination and EU citizenship. Second, from the EU secondary law sources the Court places particular emphasis on the Citizenship Directive which lays down—​inter alia—​the conditions

257 eg Michel Trojani v Centre public d’aide sociale de Bruxelles (CPAS) [2004] ECLI:EU:C:2004:488, para 39; and The Queen, on the application of Dany Bidar v London Borough of Ealing and Secretary of State for Education and Skills [2005] ECLI:EU:C:2005:169, para 46. The position of the Court can usefully be contrasted to that of the advocate general in that case: Opinion of Advocate General Geelhoed, Michel Trojani v Centre public d’aide sociale de Bruxelles (CPAS) [2004] ECLI:EU:C:2004:112. See further AP van der Mei, ‘Union Citizenship and the “De-​Nationalisation” of the Territorial Welfare State, Comments on Trojani (Case-​456/​02 of 7 September 2004) and Bidar (Case C-​209/​03 of 15 March 2005)’ (2005) 7 EMIL 203, 209. 258  Pensionsversicherungsanstalt v Peter Brey [2013] ECLI:EU:C:2013:565; Elisabeta Dano and Florin Dano v Jobcenter Leipzig [2014] ECLI:EU:C:2014:2358; Jobcenter Berlin Neukölln v Nazifa Alimanovic and others [2015] ECLI:EU:C:2015:597; Vestische Arbeit Jobcenter Kreis Recklinghausen v Jovanna García-​Nieto and others [2016] ECLI:EU:C:2016:114. 259  See, for instance, Pensionsversicherungsanstalt v Peter Brey [2013] ECLI:EU:C:2013:565, paras 46–​ 47 and 53–​56; Jobcenter Berlin Neukölln v Nazifa Alimanovic and others [2015] ECLI:EU:C:2015:597, para 50; Vestische Arbeit Jobcenter Kreis Recklinghausen v Jovanna García-​Nieto and others [2016] ECLI:EU:C:2016:114, para 39. 260  Elisabeta Dano and Florin Dano v Jobcenter Leipzig [2014] ECLI:EU:C:2014:2358, para 90. 261  ibid para 74, see also paras 60–​62.

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governing the exercise of the right of free movement and residence within the territory of the Member States by EU citizens.262 Not only does this emphasis result from the move away from treaty provisions but it is also a consequence of a clarification of the relationship between this Directive and Regulation 883/​2004 on the coordination of social security systems.263 The Citizenship Directive seems to be given precedence when it comes to defining EU citizens’ rights of residence in another Member State.264 As a consequence, the Directive acts as a gateway to EU equal treatment law on grounds of nationality for non-​economic actors,265 which, in the view of the Court, is indeed in line with one of the central objectives of the Citizenship Directive.266 Third, in seeking guidance from the Citizenship Directive, the Court sticks as closely as possible to the spirit, wording, and progressive schemes established by it. When no such specific scheme exists, the Court provides guidance to the competent national authorities on how to ensure compliance with the general requirements of the Directive after closely examining its overall internal dynamics.267 For instance, the Directive establishes that residence for more than three months268 and less than five years for economically inactive persons who do not have a more specific and beneficial status269 is dependent, inter alia, upon having ‘sufficient resources for themselves and their family members not to become a burden on the social assistance system of the host Member State’.270 In Brey, the Court indicated that this must be understood as requiring ‘an overall assessment of the specific burden which [a national of another Member State requesting a particular social assistance benefit271] would place on the national social assistance system as a whole, by reference to the personal circumstances characterizing the individual situation of the person concerned’.272 This amounts to requiring a case-​by-​case evaluation from the perspective of: (i) the national social assistance system; as well as (ii) the specific situation of the individual; and (iii) keeping in mind the specific nature of the benefits 262  Directive (EC) 2004/​38 (n 90) Article 1(a). 263  Council Regulation (EC) 883/​2004 of 29 April 2004 on the coordination of social security systems [2004] OJ L166/​1. 264  Pensionsversicherungsanstalt v Peter Brey [2015] ECLI:EU:C:2013:565, paras 50 and 53–​54. 265  Elisabeta Dano and Florin Dano v Jobcenter Leipzig [2014] ECLI:EU:C:2014:2358, para 83; see also European Commission v United Kingdom of Great Britain and Northern Ireland [2016] ECLI:EU:C:2016:436, para 68. 266  Directive (EC) 2004/​38 (n 90) Article 1(a). 267 eg Elisabeta Dano and Florin Dano v Jobcenter Leipzig [2014] ECLI:EU:C:2014:2358, paras 69–​73 and 77. 268  Note that in Brey, the applicant for social benefits wished to reside for more than three months: see Pensionsversicherungsanstalt v Peter Brey [2013] ECLI:EU:C:2013:565, para 53. 269  See the other recitals of Article 7 of the Citizenship Directive concerning, among others, student and family members of a mobile EU citizen. The specific situation of those having involuntarily lost employment or work-​seekers is discussed further later. 270  Directive (EC) 2004/​38 (n 90) Article 7(1)(b). 271  As defined under the Citizenship Directive:  Pensionsversicherungsanstalt v Peter Brey [2013] ECLI:EU:C:2013:565, paras 60–​63. 272 eg Pensionsversicherungsanstalt v Peter Brey [2013] ECLI:EU:C:2013:565, para 64, see also the detailed analysis of the interplay between different provisions of the Citizenship Directive at paras 65–​72 and 77.

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requested by the applicant. This case law seems to hold true, although the Court applied this test strictly in the Dano case.273 In contrast, when more detailed guidance is provided in the form of progressive schemes the Court actually relies on the legislature’s choices.274 In Alimanovic, the Court referred to and stuck to the progressive scheme established by the Directive: namely the retention of the status of ‘worker’ and the relevant conditions to retain the right to reside and be given access to social assistance. That included the duration of the exercise of any economic activity.275 The Court stressed that the advantage of such a scheme is to be unambiguous. As it is enshrined in legislation, it guarantees a significant level of legal certainty and transparency; and as it is progressive, it also complies with the principle of proportionality.276 The Court rejected further attempts to call into question the balance performed by the EU legislature between individuals’ right to free movement and the burden that mobile EU citizens who have lost their employment status may impose on the national system of social assistance.277 The same approach was adopted in García-​Nieto in relation to jobseekers, for whom the Directive also provides a set of detailed and progressive rights.278 The Court may thus be ready to accept a rather inflexible system of allocation of rights if that system is genuinely progressive and set in a way that ensures legal certainly and transparency. In that sense, the Court defers to political guidance and departs from its constitutional case law, which provided more individualized solutions, but also less predictable ones. Some have lamented the fact that this novel approach constitutes a step backwards when compared to the early cases in which the Court developed a strong approach to equal treatment for EU citizens that was directly grounded in primary law.279 Critics point out that the post-​Brey case law may have been triggered by fears of social tourism and Eurosceptic debates in several Member States.280 The point made here is more modest. This line of cases sheds light on the ability of the Court to reframe the interplay between primary and secondary law as well as between the judiciary and political guidance. The post-​Brey case law provides a remarkable, if not unique, example of de-​constitutionalization following a period of intense constitutionalization.

273  Elisabeta Dano and Florin Dano v Jobcenter Leipzig [2014] ECLI:EU:C:2014:2358, paras 81 and 83. Here the Court entitled a Member State to refuse to grant social benefits when the applicants exercise their right to freedom of movement solely in order to obtain social assistance: Elisabeta Dano and Florin Dano v Jobcenter Leipzig [2014] ECLI:EU:C:2014:2358, paras 76 and 78. 274  Jobcenter Berlin Neukölln v Nazifa Alimanovic and others [2015] ECLI:EU:C:2015:597, paras  59–​60. 275  ibid para 60. 276  ibid para 61. 277  ibid paras 60 and 62. 278  Vestische Arbeit Jobcenter Kreis Recklinghausen v Jovanna García-​ Nieto and others [2016] ECLI:EU:C:2016:114, para 48. 279  eg Niamh Nic Shuibhne, ‘Limits Rising, Duties Ascending: The Changing Legal Shape of Union Citizenship’ (2015) 52 CML Rev 889. 280  eg Steve Peers, ‘Benefit Tourism by EU Citizens: The Court Just Says No’, EU Law Analysis, 11 November 2014.

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(iii) Acknowledging the political dimension of equality law-​making and locating the debate at legislative level Several lessons can be drawn from Grant and the post-​Brey case law. The cases illustrate that the Court may decline to broaden the scope of EU fundamental rights jurisdiction on the basis of constitutional adjudication, as much as it may be ready to engage in de-​constitutionalization processes. What influences the readiness of the EU judiciary to adopt such approaches? Several important factors in the hands of the drafters of the Treaty and EU political institutions can be identified. First, in the cases discussed in this section, the wording of the relevant treaty provisions clearly identified the need for further political guidance. As the Court itself observed in Grant, the Treaty of Amsterdam inserted what is now Article 19(1) into the TFEU and allowed the Council to take appropriate action to eliminate various forms of discrimination under certain conditions, including discrimination based on sexual orientation.281 Similarly, the Court itself recalled in Dano that: (i) Article 18(1) TFEU prohibits any discrimination on grounds of nationality ‘[w]‌ithin the scope of application of the Treaties, and without prejudice to any special provisions contained therein’; (ii) the second subparagraph of Article 20(2) TFEU expressly states that the rights conferred on EU citizens by that article are to be exercised ‘in accordance with the conditions and limits defined by the Treaties and by the measures adopted thereunder’; and (iii) under Article 21(1) TFEU the right of EU citizens to move and reside freely within the territory of the Member States is subject to compliance with the ‘limitations and conditions laid down in the Treaties and by the measures adopted to give them effect’.282 All key treaty provisions thus call for further political guidance. In that sense, provisions such as Article 19(1) TFEU (general non-​discrimination legal basis) or Article 157(3) TFEU (sex equality in employment) are enabling legal bases that constitute comparable invitations to defer to secondary legislation despite case law going in the opposite direction.283 Second, and importantly, the secondary legislation relied upon in the de-​ constitutionalization process described earlier has a strong organic link with the relevant treaty provisions (Articles 18, 20, and 21 TFEU). Articles 18 and 21 TFEU count among the legal bases for the Citizenship Directive.284 Furthermore, Article 24 of the Citizenship Directive 2004/​38 constitutes a specific expression of the principle of non-​discrimination laid down generally in Article 18 TFEU285 for the benefit of EU citizens (as defined in Article 20 TFEU) who exercise their right to move by virtue of Article 21 TFEU. This organic link may make it easier for the judiciary to shift from one level of analysis to the other, ie from primary to secondary law. Now, this observation could work the other way around. Indeed, the special link between the Citizenship Directive and the relevant treaty rights286 echoes the distinct 281  Lisa Jacqueline Grant v South-​West Trains Ltd [1998] ECLI:EU:C:1998:63, para 48. 282  Elisabeta Dano and Florin Dano v Jobcenter Leipzig [2014] ECLI:EU:C:2014:2358, para 60. 283  See earlier discussions on cases such as Mangold and Kücükdeveci. 284  Directive (EC) 2004/​38 (n 90) Recital (1) (note that the numbering of Treaty articles mentioned herein is pre-​Lisbon). 285  Elisabeta Dano and Florin Dano v Jobcenter Leipzig [2014] ECLI:EU:C:2014:2358, para 61. 286  ibid paras 59–​61.

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relationship between the general principle of non-​discrimination on grounds of age and the Directive giving it expression. It can be recalled that the special relationship between the said fundamental right and Directive 2000/​78 was relied upon to enhance the effects as well as constitutionalizing the content of the prohibition of age discrimination.287 The citizenship and age discrimination case law thus seem to be following distinct trends, one going downwards and the other going upwards, both facilitated by the interplay between primary rights and secondary law. Third, the Court places specific emphasis on the quality of the legislative materials it is relying upon and deferring to. In cases such as Alimanovic and García-​Nieto, the Court indeed endeavours to highlight the progressive (and thus proportionate) nature of the system of allocation of rights under the Citizenship Directive; it also stresses the unambiguous wording that ensures transparency and legal certainty.288 Interestingly, this can be contrasted with the Test-​Achats case, where the Court picked up on the lack of internal consistency of the Directive implementing the principle of equal treatment between men and women in access to and supply of goods and services, to strike one of its provisions down.289 Finally, the comparison between the two lines of cases reveals another, perhaps more important, element related to the tone chosen by the legislature to address the policy implications of its decisions on the edges of EU equality law. In the Citizenship Directive the legislature may have explained the differences that it deems acceptable by making clearer, more nuanced, and more explicit policy choices than has been done in relation to the provision of the Directive at stake in Test-​Achats.290 This suggests that the Court may indeed be more inclined to defer to political guidance if the legislature makes the policy dimension of its decisions clear.291

3. Conclusions: constitutional design of a fundamental rights policy and institutional dynamics This analysis—​of the competing role of the drafters of the Treaty, the EU’s judiciary, and political institutions in shaping EU equality law—​sheds light on three elements that determine the pre-​conditions for a healthy balance between the constitutional value of the relevant right, and the political dimension of decision-​making on fundamental rights. To start with, the constitutional norm itself ought to call explicitly for political guidance. This may seem obvious when one discusses policy-​making at the EU level but is worth recalling as instances of disagreement on equal treatment rights at the constitutional level, when no clear space was made for policy reflection, have proved rather sterile (see the case of Barber and the positive action saga). In contrast, 287  See section B.1. 288  Jobcenter Berlin Neukölln v Nazifa Alimanovic and others [2015] ECLI:EU:C:2015:597, para 61. 289  The author is grateful to Dominik Steiger for most useful discussions on the link between the Alimanovic, García-​Nieto, and Test-​Achats cases. See further Koen Lenaerts, ‘The European Court of Justice and Process-​oriented Review’ (2012) 1 College of Europe Research Paper in Law, 13–​15; and contrast with Mark Dawson, The Governance of EU Fundamental Rights (CUP 2017) 74. 290  See section B.2.b. 291  As suggested by Gareth Davies, see section B.2.b.

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outright references to political guidance, as in Article 18 or 19(1) TFEU, have allowed for demarcations and therefore interplay between constitutional protection and political guidance (as clearly shown through the case of Grant). Building on such a constitutional mandate, political institutions ought to achieve a fine balance between acknowledging the existence of the constitutional right and giving it shape through legislation. It is submitted that this may be best done by asserting the policy implications of decision-​making in the field and the policy arguments justifying choices made in EU legislation. In other words, the legislature would be well advised to resist the temptation to adopt a principled tone throughout the relevant legislation and instead do so selectively, as the Test-​Achats ruling suggests. Furthermore, the internal coherence, clarity, and nuanced nature of the rights thereby regulated will make it easier for political guidance to be deferred to, as illustrated by the Court’s approach in Alimanovic. As for the judiciary, when the constitutional framework is clear and the relevant political guidance fulfils the procedural requirements set therein, it may have to refrain from palliating limits or imperfections resulting from the policy-​making process.292 Critics of the Mangold and Kücükdeveci rulings—​through which the Court bridged the constitutional asymmetry between the old and new branches of EU equality law—​are making precisely that point. Meanwhile, the de-​constitutionalized approach to economically inactive but mobile EU citizens illustrates that the Court is open to redesigning its dialogue with political institutions.

4. Epilogue: implications for the edifice of EU equality jurisprudence The driving force behind the points made above is that the merging of constitutional norms and policy guidance could undermine the raison d’être of fundamental rights policy-​making at the EU level. The blurring of the distinction between constitutional and legislative tools makes it unlikely that legislation adopted to give expression to fundamental rights would be reopened for negotiation. This is all the more so given the heavy decision-​making procedures involved. Nevertheless, it is important that political organs develop a sense of ownership of the directions in which EU fundamental rights policy is going. As will be discussed in Chapters 4 and 5, such political ownership is necessary to ensure the domestication of the policy as well as to support political institutions in further developing the field. Before moving forward, though, it is necessary to clarify the implications of the suggested approach on EU equality law as a whole. If applied to their full extent, the lines of thought of Waldron and Somek, as examined in Chapter 1 and applied in Chapter 2, could ‘call into question the entire edifice of EU equality jurisprudence’.293 Indeed, much of EU sex equality law derives from highly constitutionalizing cases. This is best epitomized by reference to the foundational ruling in Defrenne II, which was examined at the beginning of this chapter.294 It may be briefly recalled 292  Note that judicial review may still be warranted: see Chapter 2, section B. 293  The author is most grateful to an anonymous reviewer for making this point. 294  Defrenne v Société anonyme belge de navigation aérienne Sabena [1976] ECLI:EU:C:1976:56.

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that the Court asserted the horizontal direct effect of Article 119(1) TEEC (the equivalent of today’s Article 157(1) TFEU).295 According to the wording of the article at the time, each Member State shall ensure the application of the principle of equal pay for male and female workers for equal work within the first stage of the transitional period provided for in the Treaty of Rome, and maintain it after that.296 The Court, in acknowledging the ability of a treaty provision to be directly invoked in a private dispute before a national judge in Defrenne II, unquestionably gave constitutional value to the right to equal pay for equal work in the EU legal order. Several features of the ruling can be reconciled with the line of arguments developed in this book and supported with reference to the work of Waldron and Somek. These features allow for a call for caution on current and future developments of EU equality law without shaking up its entire edifice. To start with, the ruling places considerable importance on the political commitment made by the Member States to apply equal pay for equal work. In Defrenne II the Court read Article 119 TEEC as well as the Treaty more generally as a road map towards further integration, with specific instructions and deadlines. Judges relied upon the powerful and ambitious project of European integration in that field: Article 119 TEEC itself provided for a mandatory deadline by which its content had to be applied in 1962,297 the Member States had reasserted their commitment to the principle of equal pay by means of a Resolution from 1961,298 and the legislator had taken action in adopting a Directive from 1975.299 The tone of the ruling suggests that the Court saw its duty as being to enforce pre-​existing political commitments.300 Besides the underlying rationale behind the ruling, the Court paid attention to the sensitive implications of its approach in two ways. First, and most interestingly, the Court insisted on the specific nature of Article 119 TEEC; it stressed ‘the absence of any express reference . . . to the possible action to be taken by the Community for the purposes of implementing the social policy’.301 Indeed, the Chapter devoted to social policy at the time did not allow for the adoption of legislation in order to give flesh to the principle enshrined in Article 119 TEEC.302 The Court drew upon this observation to reassert that Article 119 TEEC was self-​executing. Interestingly, therefore, the absence of a legal basis for the adoption of further political guidance in the relevant section of the Treaty was used to support the idea that the said article conveyed a clear legal commitment.303 One could wonder if the existence 295  ibid para 24. 296  Original version in French only: ‘Chaque Etat membre assure au cours de la première étape, et maintient par la suite, l’application du principe de l’égalité des rémunérations entre les travailleurs masculins et les travailleurs féminins pour un même travail.’ 297  Defrenne v Société anonyme belge de navigation aérienne Sabena [1976] ECLI:EU:C:1976:56, paras 33, 44, and 56. 298  ibid paras 47 and 48. 299  ibid para 53. 300  ibid eg para 33. 301  ibid para 63. 302  Subsequent legislation on equal pay for equal work was adopted on an internal market legal basis. On the interplay between the ruling and the adoption of subsequent legislation, see Paul Craig, ‘Once Upon a Time in the West: Direct Effect and the Federalisation of EEC Law’ (1992) 4 OJLS 453, 469. 303  Defrenne v Société anonyme belge de navigation aérienne Sabena [1976] ECLI:EU:C:1976:56, paras  63–​64.

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of an explicit and specific legal basis, as called for in section B.2.c.i ((i) Declining to broaden the scope of EU equality law through constitutional adjudication: the Grant case), might have led the Court to different conclusions. Second, the Court decided to limit the retroactive effects of the ruling, so as to take into account that ‘in 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’, the parties were ‘led to continue’ with practices which were contrary to Article 119 TEEC.304 Understood through that lens, the ruling in Defrenne II can to some extent be reconciled with a narrative placing political guidance at the core of law-​making. It should be stressed that today’s references to equal treatment in EU primary law (other than Article 157(1) TFEU, which has been simplified since then) do not contain the powerful and ambitious road map towards equal treatment that could once be found in Article 119 TEEC. Instead, as discussed earlier in this chapter, the new competence conferred upon the EU to flesh out the principle of equal treatment is engineered in treaty provisions that call for legislative intervention. These treaty provisions are not intrinsically mandatory. Furthermore, and importantly, two elements were drawn from the broader context in which the ruling in Defrenne II came out for the approach of the Court in that case and similar subsequent cases to be distinguished from current trends in EU equality law. First, the ruling is heavily tainted by the transitional nature in which the project of European integration found itself at the time. It could be argued that the process of European integration as we know it has reached a level of sophistication and depth that warrants more cautious and less expansionist approaches. Second, the mindset with which the legal questions were approached in Defrenne II was not supported by a narrative of fundamental rights of the nature explored in this book, the ruling therefore raises different types of constitutional questions. As noted, Article 119 TEEC had somewhat unexpectedly been shifted from a part of the Treaty devoted to distortions of competition to the social chapter in the last stages of the negotiation of the Treaty of Rome.305 Even if the Court acknowledged the social function of that article as well as its economic one,306 the article was understood at the time as an ordinary regulatory tool307—​not a fundamental right.308 As a consequence, early case law on equal treatment does not clearly relate to the contemporary narrative on EU fundamental rights and thus should be placed in the context of a legal order in transition, as distinct from that which is the focus of this book. What was explored in this chapter was how EU law increasingly lent 304  ibid para 72. 305  Hoskyns (n 75) 57. 306  Defrenne v Société anonyme belge de navigation aérienne Sabena [1976] ECLI:EU:C:1976:56, paras  9–​12. 307  This is confirmed by the Court’s reference to Articles 100, 155, and 235 TEEC as the general scheme of the Treaty to which Article 119 TEEC belongs at paragraph 64 of the ruling in Defrenne. Articles 100 and 235 TEEC indeed related to the establishment and the functioning of the common market and Article 155 TEEC to the Commission’s task to ensure the application of community law in that regard. See also Craig (n 302) 469. 308  See Chapter 1, section C.

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its powerful and mature infrastructure to the development of specific fundamental rights. It is therefore argued that the process of European integration has reached a stage where political guidance on EU fundamental rights law is particularly strongly warranted, without this observation necessarily calling the entire edifice of EU equality jurisprudence into question.

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4 Distinguishing Legislation giving Expression to Fundamental Rights Lessons from EU Equality Law

The relationship between rights enshrined in EU constitutional law and equivalent rights enshrined in EU secondary legislation is not always as delicate in EU law as has been discussed in previous chapters. The specificity of fundamental rights policy-​making is that the superior legal value of the right enhanced through legislation creates an extraordinary appeal for a constitutional narrative, while the uniquely sensitive nature of EU intervention in the field warrants great political legitimacy. This tension between constitutional and legislative forms of protection therefore reaches an apex when it comes to policy-​making at the EU level on matters of fundamental rights. Having examined the conceptual challenges underlying fundamental rights policy-​making, analysed the resulting difficulties, and sketched out solutions in the context of equality law, we now turn to assessing the possible impact of the observations made so far on other policies of the EU. To what extent could problems similar to those identified in the context of EU equality law arise in other contexts? To assess the relevance of our reflections on the ambiguous (constitutional versus legislative) status of EU equality law for other areas of EU law we ought to enquire into the relationship between constitutional and legislative rights in EU equality law and to compare it with other fields. This enquiry seeks to distinguish legislation giving expression to fundamental rights, where the relationship between constitutional and legislative rights is particularly intimate, from ‘ordinary’ legislation. Operating such a distinction helps to point out risks of tensions between primary and secondary rights that may impact the predictability and legitimacy of fundamental rights policies, as illustrated in Chapter 3. Furthermore, if the approach criticized earlier for relying too heavily on constitutional forms of protection is maintained, distinguishing legislation giving expression to fundamental rights from ‘ordinary’ legislation helps by narrowing down the impact that such an approach may have on other branches of EU law. The investigation starts with a set of fairly recent cases on EU social rights. In this context, the Court of Justice of the European Union (‘the Court’) has refused to bridge the gap between EU social legislation and corresponding EU EU Equality Law: The First Fundamental Rights Policy of the EU. Elise Muir © Elise Muir 2018. Published 2018 by Oxford University Press.

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fundamental social rights (see section A). Indeed, the Court resisted attempts to draw a parallel between EU equality law and EU social law that could have resulted in blurring the distinction between social legislation and primary law, as has been done in the context of EU equality law. These cases on EU social rights invite us to sharpen our understanding of the distinction between classic—​understood here as ‘ordinary’ legislative—​law-​making and decision-​making on fundamental rights matters. As will be argued, it can be inferred from a critical analysis of the way the Court distinguishes EU equality law from EU social legislation that EU legislation giving shape to a fundamental right is characterized by the coexistence of three features: (i) there exists a fundamental right protected as such by EU constitutional law, (ii) legislation gives flesh to a corresponding right, and (iii) there is an organic relationship between the legislation and the constitutional right.1 Such an organic link may be identified by reference to the legal basis as well as to the dynamics of the legislation itself. This warrants an enquiry into the constitutional framework in which legislation is enshrined and to which it relates, as well as into the design of the relevant legislative framework. An investigation into whether EU law features pieces of legislation giving shape to a fundamental right other than EU equality law can thus be performed by relying on this threefold approach. The second prong of our enquiry intended to identify the fundamental rights dimension of EU legislation turns to equal treatment provisions, which are scattered across EU directives designed to ensure the protection of atypical workers as well as third-​country nationals (see section B). The question of whether the Mangold and Kücükdeveci case law could be extended to these provisions has not been asked in such straightforward terms to date. Yet, it is only natural to wonder whether these equal treatment provisions ought also to be read as closely intertwined with the constitutional right to equal treatment. This question will have to be answered by the Court sooner rather than later.2 Relying on the analytical scheme identified in section A, it will be argued that these equal treatment clauses should be treated as clearly distinct from the primary right to equal treatment. Building further on this approach, and turning in a third stage to areas of EU law unrelated to equal treatment, it will be suggested that EU data protection law may be driven by dynamics comparable to those identified above and indeed thus constitute an EU fundamental rights policy (see section C). The increasingly close parallel in the design of these two policy fields paves the way for a fruitful research agenda, as will be illustrated here and further developed in Chapter 5.

1  See also Elise Muir, ‘Of Ages in—​and Edges of—​EU Law’ (2011) 48 CML Rev 39, 59–​60 and Chapter 2, section A.1.c. 2  An opportunity may be currently pending before the Court: see Question 3 in Grupo Norte Facility, SA v Angel Manuel Moreira Gómez [2017] OJ C30/​21–​22 (pending).

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A.  Resisting Parallelism Based on Overlap between Primary and Secondary Rules: (Fundamental) Social Rights The Court has been invited to consider several initiatives that draw parallels between EU anti-​discrimination and other policies.3 A set of cases related to EU social rights has been particularly interesting. The Court carefully sought to distinguish these specific policy areas from the anti-​discrimination instruments at hand in Kücükdeveci.4 It is submitted that this approach is a positive step towards delineating fundamental rights as constitutional checks5 taken from the realm of ordinary policy-​making. As explained in Chapter 2 concerning the ‘downloading’ of rights, an overlap in subject matter between legislation and primary rights should not be confused with legislation shaping a fundamental right. Legislating on fundamental rights requires explicit political debate on the fundamental rights dimension of decision-​making. The very existence of fundamental rights legislation raises important conceptual and practical challenges, as examined in the previous chapters, which should not be expanded exponentially. Perhaps unsurprisingly, the three cases at hand concerned two directives belonging to the EU social acquis. Indeed, this is an area of EU law which is mainly intended to regulate private relationships and does so by means of directives. It thus provides a rich terrain on which to test the relevance of the Kücükdeveci case law on the effects of a directive that gives expression to a fundamental right in interpersonal disputes.6 In Dominguez7 and Fenoll,8 Directive 2003/​88 on certain aspects of the organization of working time (the ‘Working Time Directive’ or ‘WT Directive’) was

3 eg Tietosuojavaltuutettu v Satakunnan Markkinapörssi Oy and Satamedia Oy [2008] ECLI:EU:C:2008:727 discussed later; Audiolux SA e.a v Groupe Bruxelles Lambert SA (GBL) and others and Bertelsmann AG and others [2009] ECLI:EU:C:2009:626, paras 62–​63. See further Opinion of Advocate General Trstenjak, Audiolux SA e.a v Groupe Bruxelles Lambert SA (GBL) and others and Bertelsmann AG and others [2009] ECLI:EU:C:2009:410, paras 76–​113; Joxerramon Bengoetxea, ‘Case C-​101/​08, Audiolux SA and Others v Groupe Bruxelles Lambert SA (GBL) and Others, Bertelsmann AG and Others, Judgment of the Court (Fourth Chamber) of 15 October 2009’ (2010) 47 CML Rev 1173. 4  Arguing that the Kücükdeveci approach to intensifying the effects of EU law owing to the special nature of EU legislation giving specific expression to a fundamental right could (if not should) be broadened: eg Xavier Groussot, Laurent Pech, and Gunnar Tor Petursson, ‘The Scope of Application of Fundamental Rights on Member States’ Action: In Search of Certainty in EU Adjudication’ (1 July 2001) available at SSRN 29 et seq. 5  A benchmark against which the activities of EU and national public organs falling within the scope of EU law may be checked, and in light of which such activities must be interpreted, see Chapter 3, section A.1. 6 It may be recalled that in that case the Court confirmed that the general principle of non-​ discrimination on grounds of age, given expression in Council Directive (EC) 2000/​78 of 27 November 2000 establishing a general framework for equal treatment in employment and occupation [2000] OJ L303/​16, may be relied upon in disputes between private parties before domestic courts to set aside contravening domestic rules. 7  Maribel Dominguez v Centre informatique du Centre Ouest Atlantique and Préfet de la région Centre [2011] ECLI:EU:C:2012:33. 8  Gérard Fenoll v Centre d’aide par le travail ‘La Jouvene’ and Association de parents et d’amis de personnes handicapées mentales (APEI) d’Avignon [2015] ECLI:EU:C:2015:200.

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considered.9 Directive 2002/​14, looked at in the AMS10 case, establishes a general framework for informing and consulting employees in the EU (the ‘Information and Consultation Directive’ or ‘IC Directive’).11 The implementation periods of both directives had expired at the time of the disputes. The provisions of each of the directives litigated in the cases under analysis overlapped, in terms of their subject matter, with provisions of the Charter of Fundamental Rights of the European Union (‘the Charter’). Article 7 of the WT Directive regulates the right to annual paid leave,12 as does Article 31(2) of the Charter.13 Article 3(1) of the IC Directive defines its scope of application of the duties to consult and inform employees,14 while Article 27 of the Charter relates to workers’ right to information and consultation within the undertaking.15 The Court asserted that both Article 7(1) of the WT Directive and Article 3(1) of the IC Directive were sufficiently unconditional and precise to be capable of direct effect.16 There was thus a great similarity with the legal context of the Mangold and Kücükdeveci cases, where there was an overlap between Article 6(1) of Directive 2000/​78 prohibiting age discrimination and the general principle of non-​discrimination on the grounds of age (also enshrined in Article 21(1) of the Charter).

1. From avoidance to demarcation Despite the similarities in the legal facts, the Court decided not to apply the principles set out in the Kücükdeveci case law to the social provisions at hand. The Court declined to analyse secondary legislation as having a special relationship to

9  Directive (EC) 2003/​88 of 4 November 2003 concerning certain aspects of the organisation of working time [2003] OJ L299/​9 (Working Time Directive). 10  Association de médiation sociale v Union locale des syndicats CGT and others [2014] ECLI:EU:C:2014:2. 11  Directive (EC) 2002/​14 of 11 March 2002 establishing a general framework for informing and consulting employees in the European Community—​Joint declaration of the European Parliament, the Council and the Commission on employee representation [2002] OJ L80/​29 (Information and Consultation Directive). 12  Working Time Directive (n 9) Article 7 reads as follows: ‘Annual leave: (1) Member States shall take the measures necessary to ensure that every worker is entitled to paid annual leave of at least four weeks in accordance with the conditions for entitlement to, and granting of, such leave laid down by national legislation and/​or practice. (2) The minimum period of paid annual leave may not be replaced by an allowance in lieu, except where the employment relationship is terminated.’ 13  Article 31(2) CFEU is worded as follows: ‘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.’ 14  Information and Consultation Directive (n 11) Article 3(1) reads as follows: ‘This Directive shall apply, according to the choice made by Member States, to: (a) undertakings employing at least 50 employees in any one Member State, or (b) establishments employing at least 20 employees in any one Member State. Member States shall determine the method for calculating the thresholds of employees employed.’ 15  Article 27 CFEU is worded as follows: ‘Workers or their representatives must, at the appropriate levels, be guaranteed information and consultation in good time in the cases and under the conditions provided for by Union law and national laws and practices.’ 16  Maribel Dominguez v Centre informatique du Centre Ouest Atlantique and Préfet de la région Centre [2011] ECLI:EU:C:2012:33, paras 33–​37; and Association de médiation sociale v Union locale des syndicats CGT and others [2014] ECLI:EU:C:2014:2, para 35.

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fundamental social rights: instead the Court’s analysis focused on secondary legislation.17 In Dominguez as well as in Fenoll, the Court cautiously avoided directly addressing the details of a possible parallelism between annual paid leave and anti-​ discrimination. In contrast, in AMS, the Court explicitly sought to distinguish between information and consultation of employees and anti-​discrimination. It is worth sketching out the reasoning of the Court in these cases in order to reflect on criteria that could be used to distinguish legislation giving expression to a fundamental right from other forms of law-​making. Ms Dominguez had been absent from work for several months as a result of an accident that occurred on her journey from home to her place of employment. She brought a claim against her private employer for paid leave (or equivalent payment) with respect to that period. The national court referred preliminary questions on three points related to the interpretation of the provisions of the WT Directive to the Court of Justice. In its answer, the Court acknowledged that the situation fell within the substantive scope of the WT Directive for the purpose of asserting a far-​reaching duty of consistent interpretation of national law in the light of European law (ie the indirect effect of the Directive). Nevertheless, the Court made it clear that the dispute was between two private parties and referred to the limitations to the direct effect of directives in such settings: the WT Directive could not ‘of itself ’ apply to the dispute.18 The Court made no reference to Article 31(2) of the Charter or to a possible general principle of EU law.19 Unlike in Kücükdeveci, the analysis remained focused on the directive at stake.20 As a consequence, and according to settled case law on the lack of horizontal direct effect of directives, the impact of EU law on the domestic legal order was contained within the boundaries of the principle of consistent interpretation. In a similar fashion, in Fenoll, the Court relied on the timeframe of the claim to dismiss the reference to the Charter. Mr Fenoll had been on sick leave for several months. He claimed entitlement to annual leave accrued and not taken both before and during the period of incapacity. This time, the national court referred questions to the Court of Justice that related to both the interpretation of the WT Directive and Article 31(2) of the Charter (the right to annual paid leave).

17  See also, more recently, António Fernando Maio Marques da Rosa v Varzim Sol—​Turismo, Jogo e Animação, SA [2017] ECLI:EU:C:2017:844, para 50. 18  Mariel Dominguez v Centre informatique du Centre Ouest Atlantique and Préfet de la région Centre [2011] ECLI:EU:C:2012:33, para 42. 19  The Court re-​asserts that the principle of annual paid leave is a ‘particularly important principle of European Union social law’ (Dominguez (cited n 18) para 16) but declines to qualify it as a general principle of EU law although, interestingly, it is the Court itself that brought the general principle and the Charter into the equation during the proceedings, while the national court had seemingly limited its question to the directive: Mirjam de Mol, ‘Case Note: Dominguez: A Deafening Silence—​Court of Justice of the European Union (Grand Chamber). Judgment of 24 January 2012, Case C-​282/​10, Maribel Dominguez v Centre informatique du Centre Ouest Atlantique and Préfet de la region Centre’ (2012) 8 EuConst 280, 290–​91. 20  See also the explanations of the General Court on this point: European Commission v Guido Strack [2012] ECLI:EU:T:2012:588, para 46.

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Yet, the binding effects of the Charter had not been asserted at the time of the facts.21 Furthermore, the Court implicitly rejected the existence of a general principle protecting the entitlement to annual paid leave.22 In Dominguez and Fenoll, therefore, the Court reasoned exclusively on the basis of the WT Directive and distanced itself from an examination of the legal effects of constitutional expressions of the entitlement to annual paid leave. As a result, there was naturally also no discussion on the interplay between constitutional norms and secondary legislation. This can be distinguished from the approach of the Court in the peculiar setting of a staff case, Strack, to which we will return in section A.2. The approach in Dominguez and Fenoll also contrasts with the ruling in the AMS case on information and consultation of employees. The Association de Médiation Sociale (AMS) is an association that promotes the reintegration into working life of unemployed persons or persons with social and professional difficulty in gaining access to employment. A local section of French trade unions appointed a representative within the AMS. The AMS challenged that appointment. The dispute went all the way up to the Court de Cassation which referred preliminary questions on the interpretation of the IC Directive, as well as Article 27 of the Charter (the right to information and consultation within the undertaking). Here, the Court explicitly distinguished the legal setting to which information and consultation of workers belongs from that of anti-​discrimination. The demarcation was made by reference to the design of the constitutional norm. The Court noted, in novel terms, that the principle of non-​discrimination on grounds of age at issue in Kücükdeveci and laid down in Article 21(1) of the Charter is sufficient in itself to confer on individuals an individual right which they may invoke as such.23 In contrast, Article 27 of the Charter must be given more specific expression in EU or national law.24 Therefore it cannot, as such, be invoked in a dispute to conclude that the national provision which is not in conformity with the IC Directive should be set aside.25 The weakness of Article 27 of the Charter, added the Court, cannot be palliated by considering that article in conjunction with the provisions of the IC Directive ‘given that, since that article by itself does not suffice to confer on individuals a right which they may invoke as such, it could not be otherwise if it is considered in conjunction with that directive’.26 The AMS case could be understood in two ways. First, it could be read as implying that the principle of non-​discrimination on the ground of age or Article 21(1) of the Charter, as other constitutional rights fulfilling the conditions of being sufficiently clear to have direct effect, is capable of direct horizontal effect. This would pave the way for general principles of EU law and/​or provisions of the Charter to be capable 21  Gérard Fenoll v Centre d’aide par le travail ‘La Jouvene’ and Association de parents et d’amis de personnes handicapées mentales (APEI) d’Avignon [2015] ECLI:EU:C:2015:200, paras 45–​47. 22  The Court indeed reasons exclusively by reference to the Charter and the Directive: Gérard Fenoll v Centre d’aide par le travail ‘La Jouvene’ and Association de parents et d’amis de personnes handicapées mentales (APEI) d’Avignon [2015] ECLI:EU:C:2015:200, paras 45–​48. 23  Association de médiation sociale v Union locale des syndicats CGT and others [2014] ECLI:EU:C:2014:2, para 47. 24  ibid para 45. 25  ibid paras 46–​48. 26  ibid para 49.

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of horizontal direct effect when their clear formulation allows for it. This reading would be a significant broadening of the approach adopted in Kücükdeveci in so far as there would be no requirement of a special relationship with a directive (other than as an instrument to bring the matter within the scope of EU law) to trigger the ability to invoke primary rights enshrined in general principles or the Charter in private disputes. Such an understanding of the case is supported by the wording of paragraph 47 of AMS, as reiterated in similar terms in Dansk Industri.27 A second option is to see the AMS case not as a broadening of the ability to invoke general principles and/​or the Charter as such but as a sharpening of the Kücükdeveci formula. The Kücükdeveci effect indeed requires a fundamental right: (i) protected by EU constitutional law (in that case it was a general principle), (ii) substantiated through secondary legislation, and (iii) a specific relationship between the legislation and the primary right. The ruling in AMS may be understood as clarifying point (i) in two ways. The Court explains that the legal effects resulting from the necessary combination of all three conditions organically flow from the primary right. The Court further makes it clear that in order to be able to produce these legal effects the constitutional norm must fulfil certain qualitative requirements; but that is not to say that conditions (ii) and (iii) have become irrelevant.28 This second reading of AMS is supported by the broader dynamics and wording of the rulings in AMS and Dansk Industri, where emphasis is placed on the third criterion that therefore remains relevant, (iii). In the latter case in particular, apart from recalling paragraph 47 of AMS, the Court reiterates on several occasions the Member States’ duty to set aside legislation that conflicts with the general principle prohibiting discrimination on the grounds of age as given concrete expression in Directive 2000/​78.29 The Court also stresses that for the general principle of non-​ discrimination on the ground of age to be applicable in the case at hand (namely a dispute between private parties), the situation must fall within the scope of Directive 2000/​78.30 This understanding of AMS and Dansk Industri is to be favoured not only because it more convincingly builds on a holistic reading of the case law but also because it illustrates a resistance towards exponential constitutionalization.31 27  Dansk Industri (DI), acting on behalf of Ajos A/​S v Estate of Karsten Eigil Rasmussen [2016] ECLI:EU:C:2016:278, para 36. This also seems to be the reading adopted by the Court of Appeal of England and Wales (Civil Division), Ms Fatima Ahmed Benkharbouche and Ms Minah Janah v Embassy of the Republic of Sudan and Libya [2015] EWCA Civ 33; [2015] 3 WLR 301, paras 79 and 80. See also comments by Steve Peers, ‘Rights, Remedies and State Immunity: The Court of Appeal Judgment in Benkharbouche and Janah’ (EU Law Analysis, 6 February 2015); and England and Wales Court of Appeal (Civil Division), Google Inc v Judith Vidal-​Hall, Robert Hann, Marc Bradshaw [2015] EWCA Civ 311, [2016] QB 1003, paras 98 and 105. 28  This echoes Article 52(5) CFEU that distinguishes between rights and principles and indeed limits the justiciability of principles. 29  Dansk Industri (DI), acting on behalf of Ajos A/​S v Estate of Karsten Eigil Rasmussen [2016] ECLI:EU:C:2016:278, paras 35, 38, and 42. 30  ibid paras 24–​25 and 27. 31  Illustrating resistances to related developments, see the working of the preliminary questions in Dansk Industri and the response to the ruling of the CJEU by the domestic court: Judgment of the Supreme Court of Denmark, Case 15/​2014 DI acting on behalf of Ajos A/​S v Estate of A of 6 December 2016; and comments by Mikael Rask Madsen, Henrik Palmer Olsen, and Urška Šadl, ‘Legal Disintegration? The Ruling of the Danish Supreme Court in AJOS’, Vervassungsblog, 30 January 2017.

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In narrowing down the criteria triggering the Kücükdeveci effect, the Court indeed prevents litigants from relying on constitutional norms that merely overlap with legislation in order to derive special legal effects from them.32

2. The boundaries of fundamental rights law-​making: draft guidelines The cases examined above contribute to delineating legislation shaping a fundamental right from ordinary legislation. As explained elsewhere in this book,33 this delineation has implications that go beyond the specifics of the ability to invoke directives in private disputes; it may also affect the conditions for judicial review and more broadly the legitimacy of EU intervention in the field. It is thus useful to attempt to infer from the case law general guidelines on how to sharpen our understanding of the legal setting characterizing legislation giving expression to fundamental rights. When seeking to identify the existence of fundamental rights legislation, the starting point ought to be the existence of a fundamental right protected as such by EU constitutional law (criterion (i)). The distinction effected between anti-​ discrimination and information and consultation of employees in AMS adds an important element. A prerequisite to the existence of legislation giving shape to a fundamental right is the existence of a primary provision from which it is possible to infer rights. Indeed, the existence of a special link between primary and secondary rights will partly derive from the strong legal nature of the primary right. In the absence of such a strong primary right, the link between legislative instruments and the primary right is less prone to confusion.34 In that sense, the silence of the Court on Article 31(2) of the Charter on working time in Dominguez and Fenoll may be due precisely to the difficulty of classifying the entitlement to annual paid leave as providing a (strong) right or a (mere) principle within the meaning of Article 52(5) CFEU.35 The judiciary’s discomfort about this may also flow from the limitations placed on the justiciability of provisions of the Solidarity Title of the Charter by the UK, Poland, and the Czech Republic.36 As we will see shortly when discussing the Strack case, the Court may have found a peculiar way around these problems. 32  Questions on the potential to invoke equal treatment clauses contained in EU employment or migration law and overlapping with the substance of the constitutional right to equal treatment are further explored later in this book. 33  See for instance Chapter 3, section B; and section C of this chapter. 34  As described in Chapters 1 and 2. 35  eg Laurent Pech, ‘Between Judicial Minimalism and Avoidance: The Court of Justice’s Sidestepping of Fundamental Constitutional Issues in Römer and Dominguez’ (2012) 49 CML Rev 1841, 1861. Although the European Pillar of Social Rights (proclaimed by the European Parliament, the Council and the Commission on 17 November 2017) does not explicitly mention working time, the Commission has suggested that the right to annual paid leave in the Charter may have direct effect: Interpretative Communication on Directive 2003/​88 concerning certain aspects of the organization of working time (2017/​C 165/​01) point VI.A.4. 36  Protocol (No 30) on the Application of the Charter of Fundamental Rights of the European Union to Poland and to the United Kingdom [2008] OJ C115/​313, Article 1(2). See further Vojtech Belling, ‘Supranational Fundamental Rights or Primacy of Sovereignty? Legal Effects of the So-​Called Opt-​Out from the EU Charter of Fundamental Rights’ (2012) 18 ELJ 251, 255.

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The next point relates to the existence of EU legislation that gives substance to the fundamental right thereby identified (criterion (ii)). In other words, there must be a subject matter overlap between the primary and secondary right. This has been fairly easy to identify in the earlier examples. This overlap ought furthermore to be intended to flesh out the fundamental right at hand (criterion (iii)). This third criterion prompts two methods of enquiry. A natural avenue to investigate the relationship between primary and secondary rights is to turn to the legal basis. In recent attempts to rely on the Kücükdeveci case outside the scope of EU equality law, the Court has hardly looked at the legal basis on which the legislative provisions were based. Perhaps this is because it did not need to do so, given that the analysis stopped at criterion (i). Despite the silence of the Court on the matter to date, it is interesting to observe that the legislative tools at stake in Dominguez, Fenoll, and AMS were grounded in Treaty provisions that are not tainted with a specific fundamental rights tone. The WT Directive and the IC Directive have both been adopted on the basis of Article 137(2) TEC. Its equivalent today is Article 153(2) TFEU, which enables the adoption of legislation to support and complement the activities of the Member States. The fields covered are, inter alia: (a) improvement in particular of the working environment to protect workers’ health and safety and (e) of the information and consultation of workers. This contrasts with Article 19 (anti-​discrimination) TFEU which is singled out and uniquely located in a part of the Treaty that deals, in particular, with matters of principle. The constitutional setting thus supports the demarcation laid down by the Court. A second method of enquiry consists in turning to the content of secondary law and reflecting on the function performed by a given right. The legislature may indeed indicate that it intends to implement a primary right of a special nature, even if the legal basis does not expressly set that out. Such an enquiry could prove necessary, for instance, if the Court acknowledged that Article 31(2) of the Charter on paid annual leave would have sufficient substance to meet criterion (i). If one accepts the second reading of the AMS ruling as proposed earlier, it would then be necessary to show that the latest version of the WT Directive gives concrete expression to the right to annual paid leave. In other words that means that EU political institutions made conscious choices to shape the corresponding fundamental right in the EU legal order. This may be difficult given the highly controversial nature of the related legal regime. It would also be undesirable as the content of the WT Directive has been subject to several Commission proposals for reform which require a high level of political debate.37 The attempts to export the Kücükdeveci case law illustrate the need to exercise restraint when doing so. It is therefore submitted that the Court does well in distinguishing ordinary legislation-​making from fundamental rights legislation-​ making. In this section, we have sketched out several tools the Court could use to maintain such an approach when new initiatives to broaden the scope of the Kücükdeveci case law are made. The overall objective of the proposed approach is 37  See eg Tobias Nowak, ‘The Working Time Directive and the European Court of Justice’ (2008) 15 MJ 447.

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to recall the conceptual and legal framework, allowing for a distinction between ‘ordinary’ and fundamental rights legislation, the latter triggering significant legitimacy and practical questions. Before applying these criteria to new legal settings, as will be done in the next sections, it is worth saying a few words about the ruling in Strack.38 Although the case was not concerned with attempts to transpose Kücükdeveci beyond anti-​ discrimination law, it is interesting in its articulation of the entitlement to annual paid leave. This is done in two remarkable ways that are worth examining. It should be made clear at the outset that the ruling was rendered in the specific context of a dispute between a former EU civil servant and an EU institution; the case is thus concerned with judicial review of acts of EU institutions instead of the effects of EU acts in horizontal disputes at a domestic level. First, in Strack, the Court maintains a distinction between general principles, principles, and rights. The Court stresses that the ‘particularly important principle of European Union social law’ is ‘affirmed by Article 31(2) of the Charter, which the first subparagraph of Article 6(1) TEU recognises as having the same legal value as the Treaties’.39 Unlike in Dominguez and Fenoll, the Court therefore makes clear the link between the principle and EU primary law. At the same time, however, the Court avoids the label of ‘general principle’ and instead qualifies the content of Article 31(2) CFEU as a (mere) ‘principle’. As a consequence, the relevant rule of EU primary law may be complemented by further implementing acts. It may only be ‘judicially cognisable’ in the interpretation of such acts and in ruling on their legality in accordance with Article 52(5) CFEU. Direct reliance on a general principle and/​or Article 31(2) CFEU, as could have been suggested by an analogy with Kücükdeveci or Dansk Industri, is therefore rendered impossible. Based on this approach, the ‘Kücükdeveci effect’ can be expected not to apply to the question of annual paid leave. This aspect of the ruling in Strack sits well with Dominguez and Fenoll, as examined earlier. Second, though, the Court restrains the margin of manoeuvre of EU institutions owing to a principle enshrined in primary law, the content of which is informed by legislation. To that effect, the expression chosen and repeated is worth examining closely. The Court relies on ‘the notion of the right of every worker to paid annual leave as a principle of the social law of the European Union now affirmed by Article 31(2) of the Charter and referred to, inter alia, in Article 7 of Directive 2003/​88, as interpreted by the settled case law of the Court of Justice’.40 It is useful to deconstruct this quotation to illustrate the complex web of norms involved. On the one hand, the Court anchors its analysis in the constitutional version of the norm: the right (i), that is a principle of social law (ii), now affirmed in Article 31(2) CFEU (iii). On the other hand, the Court actually substantiates the content of that norm by reference to legislation: Article 7 of the WT Directive (iv), as interpreted through case law (v). The Court then goes on to analyse provisions of the Staff Regulation,

38  European Commission v Guido Strack [2013] ECLI:EU:C:2013:570. 39  ibid para 26. 40  ibid para 58.

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in the light of the entitlement to paid annual leave contained in EU primary law as understood in the WT Directive. On that basis, the Court identifies the ‘essential content of the right to paid annual leave’.41 This approach therefore merges the content of legislation with the constitutional version of the principle for the purpose of constraining the margin of manoeuvre of EU institutions in staff cases. This reasoning is fairly similar to that adopted in the Rinke ruling examined previously.42 There, the Court also used the content of a directive that could not as such be applicable to EU institutions in order to substantiate the general principle of equal treatment used as a benchmark. Although both the Rinke and Strack cases can be distinguished from other cases discussed throughout the book as a result of their peculiar institutional dimensions, one cannot fail to notice the confusion between the various layers of norms resulting from the related rulings. In Strack, the matter is made particularly intricate; the explanations on the Charter state that the primary version of the principle of annual paid leave in Article 31(2) CFEU is itself based, inter alia, on EU legislation.43 We will come back to this point in the discussion on the fundamental right to data protection.44

B.  Isolated Equal Treatment Clauses: Giving Expression to the Fundamental Right to Equal Treatment? In contrast with attempts to establish a special connection between EU social rights enshrined in EU legislation and their fundamental rights counterparts in EU constitutional law, there has not been much discussion to date on the interplay between ‘isolated’ equal treatment clauses and the constitutional principle of equal treatment itself. This may be surprising given that, by their nature, such clauses are inherently closely connected to EU anti-​discrimination law, that itself has been highly constitutionalized over the past few years. The Court may thus have to clarify the matter in the future. Indeed, this has been suggested in a preliminary question which is currently pending before the Court, on the interplay between the equal treatment clause of the Fixed-​Term Work Directive (FTW Directive), Article 21 of the Charter, and the general EU principles of equal treatment and non-​discrimination.45 The 41  ibid para 54. On the rise of the notion of the ‘essence of fundamental rights’ in the case law of the Court, see also section C on the right to data protection. 42  See Chapter 3, section B.1.d. 43  As well as specific articles of the European Social Charter and the Community Charter of the Fundamental Social Rights of Workers. See Explanations relating to the Charter of Fundamental Rights OJ [2007] C303/​02; and European Commission v Guido Strack [2013] ECLI:EU:C:2013:570, para 27. 44  See section C. 45  See Question 3 in Grupo Norte Facility, SA v Angel Manuel Moreira Gómez [2017] OJ C30/​21–​22 (pending): ‘For the purposes of guaranteeing the practical effect of Directive 1999/​70 EC, if there should be found to be no reasonable justification under clause 4.1, is the unequal treatment of temporary and permanent employees with regard to compensation for termination of their contracts, laid down in the Spanish legislation referred to above, to be interpreted as constituting discrimination of the kind prohibited by Article 21 of the Charter, and therefore as contrary to the principles of equal treatment and non-​discrimination that are part of the general principles of EU law?’

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relationship between legislative and constitutional rights in this field is thus worth exploring further. It will be argued that the Court has largely managed to constrain these equal treatment clauses to their ‘ordinary’ legislative function. Equal treatment clauses are scattered across two distinct set of instruments: EU labour law and EU migration law. Each policy field raises different challenges and has specific characteristics. These will be examined in turn.

1. Equal treatment clauses for those involved in flexible forms of employment In EU labour law, three directives are devoted to the protection of so-​called atypical workers, ie workers other than those subject to the classic permanent full-​time contract. Each of these directives includes an equal treatment clause. These clauses seek to approximate the status of atypical workers (whether part-​time, fixed-​term, or temporary agency workers) with that of ‘mainstream’ workers, such as permanent full-​time workers. As we shall see, despite the overall greatly similar wording of the equal treatment clauses, the underlying dynamics of each piece of legislation are quite distinct. This is where the need to adopt a nuanced approach to the relationship between these equal treatment clauses and the fundamental right to equal treatment comes in.

(a) Mapping out the equal treatment clauses for the benefit of atypical workers The first equal treatment clause to have been incorporated in EU labour law is clause 4(1) of the Part-​Time Work Directive (PTW Directive).46 Clause 4(1) PTW Directive states: 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 part time unless different treatment is justified on objective grounds.

In this context, attention ought to be paid to the comparability of the situations at hand,47 without which the prohibition of discrimination does not apply.48 The provision is complemented by a statement to the effect that certain rights may be adjusted pro rata temporis for part-​time workers,49 a deference conferred on the Member States after consultation with the social partners and/​or the social partners for the application of the clause,50 and a specific note on making access to particular 46  Council Directive (EC) 97/​81 of 15 December 1997 concerning the Framework Agreement on part-​time work concluded by UNICE, CEEP and the ETUC—​Annex: Framework agreement on part-​ time work [1998] OJ L14/​9 (Part-​time Work Directive 1997). 47  ibid clause 3(2)—​Annex. 48  See eg Nicole Wippel v Peek & Cloppenburg GmbH & Co KG [2004] ECLI:EU:C:2004:607, paras  57–​65. 49  Part-​time Work Directive 1997 (n 46), clause 4(2)—​Annex. 50  ibid clause 4(3)—​Annex.

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conditions of employment subject to a period of service, time worked, or based on salary.51 Importantly, the PTW Directive seeks to facilitate the use of part-​time employment on a voluntary basis and encourages mobility between part-​and full-​time employment.52 This may be explained by the close link between part-​time work and equal treatment between women and men that often involves improving the status of women in part-​time employment. Facilitating the transition between part-​time and full-​time work may facilitate the integration of women in the labour market as well as, more generally, a more even allocation of family responsibilities between men and women.53 In this context, the equal treatment clause serves a promotional purpose: it seeks to facilitate recourse to part-​time work by ensuring equal treatment for such workers.54 The second in time, and most litigated instrument for our purpose, is clause 4(1) of the FTW Directive.55 This clause is worded in terms almost identical to those of clause 4(1) of the PTW Directive: In respect of employment conditions, 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.

Guidance on the notion of comparable permanent worker is provided for in clause 3(2) of the FTW Directive. The equal treatment clause (clause 4(1)) is further complemented by a statement to the effect that certain rights may be adjusted pro rata temporis for fixed-​term workers,56 deference may be given to Member States after consultation with the social partners and/​or the social partners for the application of the clause,57 and there is a specific note on period-​of-​service qualifications.58 Unlike the PTW Directive, which encourages mobility between part-​and full-​time employment, the tone of the FTW Directive is decidedly against fixed-​term work and in favour of contracts of an indefinite duration.59 Clause 5 in particular prohibits the abuse arising from the use of successive fixed-​term forms of employment, which illustrates a bias against this form of employment.60 In such a setting, the equal treatment clause may thus be perceived as a defensive tool61 designed as a complement to—​if not a prong of—the combating of abuses against fixed-​term workers.62

51  ibid clause 4(4)—​Annex. 52  ibid clauses 1(b) and 5—​Annex. 53  See, for instance, points 4 and 5 of the general considerations in ibid—​Annex. 54  Othmar Michaeler, Subito GmbH and Ruth Volgger v Amt für sozialen Arbeitsschutz and Autonome Provinz Bozen [2008] ECLI:EU:C:2008:248, para 23. 55  Council Directive (EC) 1999/​70 of 28 June 1999 concerning the framework agreement on fixed-​ term work concluded by ETUC, UNICE and CEEP [1999] OJ L175/​43 (Fixed-​Term Work Directive 1999). 56  ibid clause 4(2)—​Annex. 57  ibid clause 4(3)—​Annex. 58  ibid clause 4(4)—​Annex. 59  See, for instance, point 6 of the general considerations of ibid—​Annex. 60  ibid clause 5—​Annex. 61  Yolanda Del Cerro Alonso v Osakidetza-​Servicio Vasco de Salud [2007] ECLI:EU:C:2007:509, paras  37–​38. 62  ibid paras 52 and 56–​58.

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The most recent and final instrument is the Temporary Agency Work Directive (TAW Directive).63 Article 5 of the TAW Directive is devoted to the principle of equal treatment. According to its paragraph 1: The basic working and employment conditions of temporary agency workers shall be, for the duration of their assignment at a user undertaking, at least those that would apply if they had been recruited directly by that undertaking to occupy the same job.

The remainder of the Article further elaborates on elements of flexibility that can be introduced by Member States in consultation with social partners. Although the TAW Directive reiterates, as does the FTW Directive, that employment contracts of an indefinite duration ‘are the general form of employment relationship’,64 the purpose of the Directive is to contribute effectively ‘to the creation of jobs and to the development of flexible forms of working’.65 As for the PTW Directive, the equal treatment clause in this context is promotional rather than defensive. This reading of the TAW Directive is confirmed by the atypical yet unequivocal expression of the principle of equal treatment in Article 5 as a minimum threshold more than as a requirement as such. That paves the way for more favourable treatment of temporary agency workers.

(b) Equal treatment as a classic legislative choice for the benefit of selected categories of workers The equal treatment provisions contained in the atypical workers directives share several characteristics with EU anti-​discrimination legislation. As these equal treatment rights have been adopted as a social policy, they are largely detached from the internal market rationale. They apply in cross-​border and purely internal situations alike and benefit EU citizens as well as third-​country nationals. The case law available to date mostly concerns the first two framework agreements. It is therefore perhaps unsurprising that the Court seeks a uniform interpretation of these instruments66 as well as, in so far as possible, of other EU equality law provisions.67 Should such a parallel go so far as to treat these legislative provisions as forming part of a fundamental rights policy of the EU, as has been done with the anti-​discrimination legislation previously examined?68 Our answer to this question is in the negative. These equal treatment provisions are best understood as classic legislative rights, for reasons that will now be explained. As can be inferred from the case law of the Court of Justice on social rights examined earlier, three central elements seem relevant to characterize the existence of EU legislation fleshing out a fundamental right: Criterion (i) Is there a 63  Directive (EC) 2008/​104 of 19 November 2008 on Temporary Agency Work [2008] OJ L327/​9 (Temporary Agency Work Directive 2008). 64  ibid Preamble, Recital (15). 65  ibid Article 2. 66  Carmela Carratù v Poste Italiane SpA [2013] ECLI:EU:C:2013:830, paras 34–​35. 67 eg Impact v Minister for Agriculture and Food and others [2008] ECLI:EU:C:2008:223, paras 131–​32. 68  See Chapter 3.

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fundamental right protected by EU constitutional law? Criterion (ii) Has the said right been substantiated through secondary legislation? Criterion (iii) Is there an organic relationship between the legislation and the primary right? Such a finding may be inferred from the legal basis as well as from the internal dynamics of the legislation. Applying this scheme of analysis to the equal treatment clauses for atypical workers under examination, it can fairly straightforwardly be asserted that there is indeed a fundamental right to equal treatment protected in EU constitutional law. Criterion (i) is thus fulfilled. Also, the requirement that the said right is substantiated through secondary legislation—​criterion (ii)—​is thus also fulfilled. Yet, in its interpretation of the equal treatment clauses contained in the atypical workers directives, the Court has been at pains to qualify the relationship between the secondary right and the constitutional right to equal treatment. Our attention thus turns to the third limb (criterion (iii)) of the analytical framework previously suggested (at section A.2) to identify a risk of confusion between constitutional and secondary rights. The first element that can constitute an incentive to merge the two layers of rights is the choice of the legal basis on which legislation is adopted. Unlike EU sex equality law and the anti-​discrimination directives adopted on the basis of enabling provisions specifically devoted to equal treatment, the atypical workers directives have been adopted on the basis of Article 153(1)(b) and (2)(b) TFEU. That allows EU institutions to adopt minimum requirements for gradual implementation on working conditions through directives. The legal basis as such does not constitute a simple bridge between the provisions of the legislation thereby adopted and the constitutional right to equal treatment; Article 153(1)(b) TFEU merely refers to working conditions in general terms. Remarkably too, the decision-​making process leading to the adoption of the atypical workers directive was collective bargaining. Indeed, Articles 154 and 155 TFEU—​through which the Treaty of Amsterdam incorporated equivalent provisions from the Social Protocol introduced by the Maastricht Treaty—​allow management and labour to inform the Commission of their wish to engage in a dialogue on envisaged proposals submitted by the Commission in the social field. Such dialogue may lead to contractual relations, including agreements being turned into Council directives with the same legal value and effects as ordinary directives.69 Indeed, this process led to the adoption of the PTW and FTW Directives, in which the collective agreement actually appears in an annex. Collective negotiation also had a decisive impact on the content of the TAW Directive.70 If the equal treatment clauses contained in the atypical workers directives were deemed to give shape to a fundamental

69  Impact v Minister for Agriculture and Food and others [2008] ECLI:EU:C:2008:223, para 58. 70  See Commission, amended proposal for a Directive on temporary work (Commission (EC), ‘Proposal for a Directive of the European Parliament and the Council on working conditions for temporary workers’ COM (2002) 149 final, 21 March 2002) section 3, §1, sub-​§ B.

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right, one could be led to reflect on the role of not just the legislature but in fact also social partners in shaping a fundamental rights regime. A criticism or fear could be that ‘[s]‌ocial [d]ialogue by its nature subordinates human and social rights to labour market concerns’.71 As the legal basis seems to draw a clear line between the policy dimension of these equal treatment clauses and the constitutional right to equal treatment, we can further investigate the function performed by the equal treatment clauses under scrutiny in the relevant legislative framework. As highlighted previously, the equal treatment clauses contained in the atypical workers directives are not ends in themselves. They do not seek to achieve equal treatment per se and as part of a transformative mandate such as that introduced in the early stages of this book.72 They are part of policy choices designed to either promote (part-​time and temporary agency work) or deter (fixed-​term work) certain forms of employment. In that sense, they ought to be understood as legislative tools serving a traditional policy objective. This is confirmed by several references to EU employment policy in the preambles to the relevant directives adopted after the EU gained competence to develop such policy.73 The subjection of the equal treatment clause to a broader policy agenda has also been confirmed by the Court of Justice. For instance in Impact, the Court stated that the application of the principle of non-​discrimination contained in the FTW Directive is intended to improve the quality of fixed-​term work.74 This aim is akin to the objective of improving the living and working conditions and the existence of proper social protection for workers.75 A similar approach was adopted in relation to the PTW Directive in the Bruno case.76 It appears that neither the legal basis, nor the function performed by the equal treatments provisions contained in the atypical workers directives, militate in favour of treating them as components of an EU fundamental rights policy fleshing out the principle of equal treatment. One ought thus to welcome the careful approach by which the Court has overall maintained a clear distinction between the two layers of legislative and constitutional rights in this field, as we shall now see.

71  Sandra Fredman, ‘Discrimination Law in the EU: Labour Market Regulation or Fundamental Rights?’ in Hugh Collins, Paul Davies, and Roger Rideout (eds), Legal Regulation of the Employment Relation (Hart and Kluwer 2000) 189. 72  See Chapters 1 and 2. 73  See eg Fixed-​Term Work Directive 1999 (n 55) Preamble, Recitals (5)–​(6); Temporary Agency Directive 2008 (n 63) Preamble, Recital (8). 74  Impact v Minister for Agriculture and Food and others [2008] ECLI:EU:C:2008:223, para 111. See also Yolanda Del Cerro Alonso v Osakidetza-​Servicio Vasco de Salud [2007] ECLI:EU:C:2007:509, para 36. 75  Impact v Minister for Agriculture and Food and others [2008] ECLI:EU:C:2008:223, para 111. See also Yolanda Del Cerro Alonso v Osakidetza-​Servicio Vasco de Salud [2007] ECLI:EU:C:2008:223, para 112. 76  Istituto nazionale della previdenza sociale (INPS) v Tiziana Bruno and Massimo Pettini and Daniela Lotti and Clara Matteucci [2010] ECLI:EU:C:2010:329, paras 30–​32.

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(c) Calls for a coherent interpretation of miscellaneous equal treatment provisions and the risk of constitutionalization As the provisions contained in the atypical workers directives require equal treatment, there is a very strong incentive to structure the legal analysis of such provisions in the same way, and with the same conceptual tools as those used in the context of EU equality law in general. This is both natural and legitimate. Peers, as we shall see, has made a powerful call to that effect.77 Building on a parallelism between the two fields can indeed allow gaps to be filled in—​especially in the early years of a new piece of legislation—​to ensure coherence, which is a valuable technique of legal interpretation. It could be tempting to use the constitutional right to equal treatment as the main vehicle for such parallelism. By relying on the constitutional right to equal treatment, it is easier to use the same interpretation techniques and conceptual tools across various pieces of legislation dealing with equal treatment. The Court has to date—​and rightly so—​largely resisted the temptation to confuse the equal treatment provisions contained in the atypical workers directives with the constitutional right to equal treatment. The Court has on many occasions used EU sex equality law—​and more recently occasionally other prongs of EU anti-​ discrimination law78—​as a point of reference to fill in gaps in the interpretation of the equal treatment provisions contained in the atypical workers directives.79 The Court relies on sex equality case law to assert that clause 4(1) of the FTW Directive is directly effective.80 This approach has been extended to clause 4(1) of the PTW Directive.81 In many cases, the Court also interprets the personal82 and material83 scopes of the FTW Directive and PTW Directive84 in the light of sex equality law. For instance, the notion of pay—​part of the ‘employment conditions’ covered by clause 4(1) of the FTW Directive—​is aligned with the reference to pay in Article 157(1) TFEU.85 There was also reliance on EU sex equality law to assess the comparability of situations.86 A similar approach has recently been adopted in the context of

77  Steve Peers, ‘Equal Treatment of Atypical Workers: A New Frontier for EU Law?’ (2013) 32 YEL 30. 78  For a parallel with sexual orientation discrimination law, see Istituto nazionale della previdenza sociale (INPS) v Tiziana Bruno and Massimo Pettini and Daniela Lotti and Clara Matteucci [2010] ECLI:EU:C:2010:329, para 50; for a parallel with nationality discrimination law, see Betriebsrat der Ruhrlandklinik GmbH v Ruhrlandklinik GmbH [2016] ECLI:EU:C:2016:883, paras 26–​27. 79  For similar conclusions, see Peers (n 77) 54. 80  Impact v Minister for Agriculture and Food and others [2008] ECLI:EU:C:2008:223, paras 57–​58. 81  Zentralbetriebsrat der Landeskrankenhäuser Tirols v Land Tirol [2010] ECLI:EU:C:2010:215, paras  22–​25. 82  In the context of the FTW Directive, see Yolanda Del Cerro Alonso v Osakidetza-​Servicio Vasco de Salud [2007] ECLI:EU:C:2007:509, para 29. 83  In the context of the FTW Directive, see Francisco Javier Rosado Santana v Consejería de Justicia y Administración Pública de la Junta de Andalucía [2011] ECLI:EU:C:2011:557, paras 46–​47. 84  In the context of the PTW Directive, see Istituto nazionale della previdenza sociale (INPS) v Tiziana Bruno and Massimo Pettini and Daniela Lotti and Clara Matteucci [2010] ECLI:EU:C:2010:329, paras  41–​42. 85  Impact v Minister for Agriculture and Food and others [2008] ECLI:EU:C:2008:223, paras 131–​32. 86  In the context of the FTW Directive, see David Montoya Medina v Fondo de Garantía Salarial et Universidad de Alicante [2011] ECLI:EU:C:2011:167, para 37.

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the TAW Directive in regard to the personal scope of the Directive that was aligned on that of EU sex and nationality discrimination law.87 Yet, the parallel is not systematic. Many aspects of EU anti-​discrimination law are not relied upon in the analysis of differential treatment under the atypical workers directives.88 In particular, although clause 4(1) of the FTW Directive unquestionably covers direct discrimination89 (as EU anti-​discrimination law does), there is no explicit reference to that concept, or to the case law of the court on sex equality, or the Article 19 TFEU directives for the analysis of such discrimination. Instead, the analysis is performed by reference to the meta-​principle of non-​discrimination without any specification as to its legal status (whether or not constitutional).90 According to this principle, comparable situations must not be treated differently, and different situations must not be treated alike unless such treatment is objectively justified. In other words, direct discrimination can be tolerated with reference to an open-​ended list of justifications, as can in fact be inferred from the reference to ‘objective grounds’ in clause 4(1) of the FTW Directive. Similarly, the actual examination of specific justification is done without reference to EU sex equality or anti-​discrimination case law.91 Instead the Court relies on the internal logic of the relevant directives.92 In Del Cerro Alonso, for instance, the Court examines the justification for differential treatment under clause 4(1) of the FTW Directive with reference to clause 5—​the anti-​abuse clause—​on the concept of objective reasons justifying the renewal of fixed-​term forms of employment.93 Another approach has been to examine justifications in the light of the overall objective of the FTW Directive.94 This self-​referential analysis of the justifications to differential treatment in the atypical workers directives has been repeated in several cases,95 although references to sex equality case law have very occasionally filled in a gap and supported a specific aspect of the analysis (such as the rejection of

87  Betriebsrat der Ruhrlandklinik GmbH v Ruhrlandklinik GmbH [2016] ECLI:EU:C:2016:883, paras  26–​27. 88  Examining non-​explicit parallels with sex equality law, see Peers (n 77) 55. 89  See eg Francisco Javier Rosado Santana v Consejería de Justicia y Administración Pública de la Junta de Andalucía [2011] ECLI:EU:C:2011:557, para 58; Ana de Diego Porras v Ministerio de Defensa [2016] ECLI:EU:C:2016:683, para 36; Carlos Álvarez Santirso v Consejería de Educación, Cultura y Deporte del Principado de Asturias [2016] ECLI:EU:C:2016:725, para 46. 90  Francisco Javier Rosado Santana v Consejería de Justicia y Administración Pública de la Junta de Andalucía [2011] ECLI:EU:C:2011:557, para 65. This has been repeated in Ana de Diego Porras v Ministerio de Defensa [2016] ECLI:EU:C:2016:683, para 35. 91  Dai Cugini NV v Rijksdienst voor Sociale Zekerheid [2011] ECLI:EU:C:2011:223, para 49; Auditeur du travail v Yangwei SPRL [2011] ECLI:EU:C:2011:826, para 32. 92  Similarly, see Peers (n 77) 38 and further interesting observations on how to apply the test at 39–​40. 93  Yolanda Del Cerro Alonso v Osakidetza-​Servicio Vasco de Salud [2007] ECLI:EU:C:2007:509, paras 52 and 56–​58; see also Zentralbetriebsrat der Landeskrankenhäuser Tirols v Land Tirol [2010] ECLI:EU:C:2010:215, paras 43–​44. 94  Rosa María Gavieiro Gavieiro and Ana María Iglesias Torres v Consellería de Educación e Ordenación Universitaria de la Xunta de Galicia [2010] ECLI:EU:C:2010:819, paras 56–​57. 95  See eg Francisco Javier Rosado Santana v Consejería de Justicia y Administración Pública de la Junta de Andalucía [2011] ECLI:EU:C:2011:557, paras 72–​74; Ana de Diego Porras v Ministerio de Defensa [2016] ECLI:EU:C:2016:683, paras 45–​47.

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budgetary considerations as justifications for differential treatment).96 The Court has also framed recourse to justifications by requiring, in any case, transparency and openness to review.97 Evaluations of the proportionality of measures have also been free from references to anti-​discrimination law.98 Peers has put forward a powerful argument for the Court to go further in borrowing from the case law on anti-​discrimination to ensure a dynamic reading of equal treatment contained in the atypical workers directives.99 His argument is driven by the concern to ensure a ‘consistent and systemic’ approach of equal treatment provisions across EU anti-​discrimination law and the atypical workers directives.100 Peers suggests that the equal treatment clauses of the PTW and FTW Directives may cover indirect discrimination which could derive from time limits to obtain certain benefits in the context of the FTW Directive.101 Discrimination by association102 or harassment could also be covered by the said clauses, and comparators could be former or theoretical employees.103 Peers also supports the application of ‘those general remedies rules’,104 such as the rules on the burden of proof and victimization, which are not specific to certain grounds of discrimination to atypical workers. This call to ‘export’ concepts from anti-​discrimination law to the atypical workers directives is more ambitious than a straightforward reference to the parallelism between the various equal treatment provisions would suggest. Indeed, several of the concepts identified in the last paragraph are in fact closely related to the specifics of the legislation to which they have been explicitly—​and exclusively—​related to date. For instance,105 the concept of discrimination by association106 has been developed in the Coleman case,107 owing to a detailed analysis of the overall purpose of the 96  Zentralbetriebsrat der Landeskrankenhäuser Tirols v Land Tirol [2010] ECLI:EU:C:2010:215, para 46. See also, in the context of the PTW Directive, Istituto nazionale della previdenza sociale (INPS) v Tiziana Bruno and Massimo Pettini and Daniela Lotti and Clara Matteucci [2010] ECLI:EU:C:2010:329, paras  47–​48. 97  Rosanna Valenza and others v Autorità Garante della Concorrenza e del Mercato [2012] ECLI:EU:C:2012:646, para 59; see also Francisco Javier Rosado Santana v Consejería de Justicia y Administración Pública de la Junta de Andalucía [2011] ECLI:EU:C:2011:557, paras 77–​80; and Ana de Diego Porras v Ministerio de Defensa [2016] ECLI:EU:C:2016:683, para 51. 98  See eg Carmela Carratù v Poste Italiane SpA [2013] ECLI:EU:C:2013:830, para 47; Carlos Álvarez Santirso v Consejería de Educación, Cultura y Deporte del Principado de Asturias [2016] ECLI:EU:C:2016:725, para 57. In the context of the PTW Directive, see Dai Cugini NV v Rijksdienst voor Sociale Zekerheid [2011] ECLI:EU:C:2011:223, para 50; and Auditeur du travail v Yangwei SPRL [2011] ECLI:EU:C:2011:826, para 33. 99  Peers (n 77). 100  ibid 30, 31, and 55. 101  ibid 30, 37, and 42. 102  This would presumably also extend to discrimination by ‘ricochet’: see the reasoning of the Court in CHEZ Razpredelenie Bulgaria AD v Komisia za zashtita ot diskriminatsia [2015] ECLI:EU:C:2015:480, paras 51–​59. See further Álvaro Oliveira and Sarah-​Jane King, ‘A Good Chess Opening: Luxembourg’s First Roma Case Consolidates its Role as a Fundamental Rights Court’ (2016) 41 EL Rev 865–​84. 103  Peers (n 77) 30, 38, and 42. 104  ibid 30 and 55. 105  For another example, see the notion of ‘discrimination ricochet’ and the reasoning of the Court in CHEZ Razpredelenie Bulgaria AD v Komisia za zashtita ot diskriminatsia [2015] ECLI:EU:C:2015:480, paras 51–​59. See further Oliveira and King (n 102) 865–​84. 106  In the Coleman case, this expression has been used to cover a person who ‘is not himself disabled but who is treated less favourably by reason of the disability of his child, for whom he is the primary provider of the care required by virtue of the child’s condition’: S Coleman v Attridge Law and Steve Law [2008] ECLI:EU:C:2008:415, para 33. 107  ibid para 51.

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Framework Employment Directive108 that prohibits discrimination on grounds of disability. In order to extrapolate on the concept of discrimination, the Court observed that the purpose of the Framework Employment Directive is to ‘combat all forms of discrimination on grounds of disability’,109 ‘with a view to putting into effect in the Member States the principle of equal treatment’.110 Furthermore, 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’ of the Directive.111 To reach that conclusion, the Court examined several provisions of the Directive as well as its legal basis—​the current Article 19 TFEU.112 This legal basis, as the Court noted, ‘confers on the Community the competence to take appropriate action to combat discrimination based, inter alia, on disability’.113 These specificities do not seem to be matched in the atypical workers directives, which date from approximately the same period of time. Other legal tools identified by Peers flow from legislative innovation; they are not legal concepts built into the actual prohibition of discrimination by judicial interpretation. As a consequence, the parallel interpretation that he suggests would amount to applying legislative concepts developed by EU anti-​discrimination legislation to a distinct prong of EU legislation. Examples include the references to hypothetical comparators and harassment. The Court had denied the possibility of using hypothetical comparators in the case law prior to the anti-​discrimination directives.114 Such a technique thus flows explicitly and exclusively from the wording of the anti-​discrimination directives adopted from 2000 onwards: so does the inclusion of harassment in the definition of discrimination.115 Peers’ invitation to export these concepts to the context of the atypical workers directives may thus be more delicate than had the Court directly derived these notions from the actual prohibition of discrimination. In such circumstances, it would have indeed been easier to rely merely on the parallel between the equal treatment provisions in the field of anti-​discrimination law and those in the atypical workers directives in order to suggest parallel approaches. The argument for coherence and systemic interpretation is thus not always neutral from a constitutional perspective. It may lead to a substantial departure from a legislative text. To achieve this objective of parallel interpretation nevertheless, it could be tempting to appeal to the fundamental right to equal treatment and to use it as a vector to bridge the two legislative frameworks that are the object of approximation. There is little indication in the case law to date that the Court is ready to

108  Council Directive (EC) 2000/​78 (n 6). 109  S Coleman v Attridge Law and Steve Law [2008] ECLI:EU:C:2008:415, para 38. 110  ibid para 47. 111  ibid para 38. 112  ibid paras 34–​38. 113  ibid para 38. 114  With the exception of pregnancy: see Macarthys Ltd v Wendy Smith [1980] ECLI:EU:C:1980:103, paras 14–​15; and Coloroll Pension Trustees Ltd v James Richard Russell, Daniel Mangham, Gerald Robert Parker, Robert Sharp, Joan Fuller, Judith Ann Broughton and Coloroll Group plc [1994] ECLI:EU:C:1994:348, paras 101–​103. See further Lisa Waddington and Mark Bell, ‘More Equal Than Others: Distinguishing European Union Equality Directives’ (2001) 38 CML Rev 587, 592. 115  Waddington and Bell (n 114) 595–​96.

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move in such a direction and thus to blur the boundaries between legislative and constitutional rights. On the contrary, the Court has so far largely maintained a clear legal and conceptual distinction between the equal treatment provisions contained in the atypical workers directives and the constitutional right to equal treatment. This approach is to be welcomed as it allows a certain distance to be kept from the challenges identified in previous chapters.

(d) From avoidance to demarcation with reference to ‘particularly important principles of EU social law’ The Court has drawn a particularly clear line between the equal treatment clause contained in the FTW Directive and the fundamental right to equal treatment. Interestingly, it has done so by using two distinct methods. The first method was introduced in the Impact116 case that related to clause 4(1) FTW Directive on equal treatment. The method used here is close to—​though distinct from—​the avoidance technique relied upon in the Dominguez and Fenoll cases.117 The Court in Impact did refer to fundamental rights but it avoided referring to the fundamental right to equal treatment. Instead it discussed less directly connected fundamental social rights. The Court mentioned the Community Charter of the Fundamental Social Rights of Workers118 and the European Social Charter,119 and focused on the improvement of living and working conditions of workers as the underlying objective pursued by the FTW Directive. Having made explicit mention of these sources of fundamental social rights to enhance the conditions of workers, the Court concluded that ‘Clause 4 of the framework agreement [on fixed-​term work] must be interpreted as articulating a principle of Community social law which cannot be interpreted restrictively’ (emphasis added).120 In opting for such wording, the Court avoided connecting the equal treatment clauses to general principles of EU law, and thus maintained a clear distinction between the legislative right and the pre-​ identified fundamental social rights. In Del Cerro Alonso121 the Court adopted another approach, this time closer to the demarcation approach used in the AMS case.122 The Court explicitly referred to the importance of the general principle of equal treatment and non-​discrimination (which has constitutional value) in EU law and also concluded that: 116  Impact v Minister for Agriculture and Food and others [2008] ECLI:EU:C:2008:223, paras 112–​14. 117  See section A.1. 118  More specifically Article 7 and the first paragraph of Article 10, which are associated with the improvement of living and working conditions and the existence of proper social protection for workers. Impact v Minister for Agriculture and Food and others [2008] ECLI:EU:C:2008:223, para 112. 119  More specifically Part I, point 4 on the right for all workers to a ‘fair remuneration sufficient for a decent standard of living for themselves and their families’, which is among the objectives that the contracting parties have undertaken to achieve in accordance with Article 20 in Part III of the said Charter. Impact v Minister for Agriculture and Food and others [2008] ECLI:EU:C:2008:223, para 113. 120  Impact v Minister for Agriculture and Food and others [2008] ECLI:EU:C:2008:223, para 114. 121  Yolanda Del Cerro Alonso v Osakidetza-​Servicio Vasco de Salud [2006] ECLI:EU:C:2007:509. 122  See section A.1.

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. . . the provisions set out in that regard by Directive 1999/​70 and the framework agreement for the purposes of ensuring that fixed-​term workers enjoy the same benefits as those enjoyed by comparable permanent workers, except where a difference in treatment is justified by objective grounds, . . . are rules of Community social law of particular importance.123

The Court further stated in the same case, and has repeated on numerous occasions since then, that the same rules that constitute a ‘principle of Community social law cannot be interpreted restrictively’.124 It is thus remarkable that the Court acknowledges the overlap in the subject matter between the constitutional right to equal treatment and the legislative provision, but maintains the functional distinction between the two layers of norms: the rules enshrined in the FTW Directive are of particular importance, but they remain distinct from the constitutional right. We shall come back to the implications of this approach in the conclusion of this chapter (section D). One aspect of the parallel between the equal treatment provisions of the atypical workers directives and the fundamental right to equal treatment that might have been particularly appealing, relates to enforcement. Peers in particular has argued that the Kücükdeveci effect125 shall also apply to the equal treatment provisions contained in the atypical workers directives.126 The Court has so far not echoed this suggestion, and in particular has resisted the temptation to constitutionalize the equal treatment provisions of the FTW Directive. Although the Court has not explicitly distinguished its line of case law on the applicability of the FTW Directive from the Court’s approach regarding the Framework Employment Directive in the Mangold case and subsequent case law, it has consistently maintained its classic approach to the lack of a horizontal direct effect of directives. In the Impact case, in particular, the Court reiterates that directives do not have a horizontal direct effect and recalls the limits of consistent interpretation when it comes to contra legem.127 This approach, by which the Court has so far resisted blurring the distinction between legislative entitlements to equal treatment and the related constitutional rights, is most welcome. It prevents confusion about the content of the primary right, its relationship with secondary law, and with unclear case law on when such special effects may reoccur. Three points are worthy of further attention. First, it must be made clear that it is not argued here that legislation ought to be static. The 123  Yolanda Del Cerro Alonso v Osakidetza-​Servicio Vasco de Salud [2006] ECLI:EU:C:2007:509, paras 26–​27; repeated, for instance, in Rosa María Gavieiro Gavieiro and Ana María Iglesias Torres v Consellería de Educación e Ordenación Universitaria de la Xunta de Galicia [2010] ECLI:EU:C:2010:819, para 41. 124  Yolanda Del Cerro Alonso v Osakidetza-​Servicio Vasco de Salud [2006] ECLI:EU:C:2007:509, paras 37–​38; repeated, for instance, in Rosa María Gavieiro Gavieiro and Ana María Iglesias Torres v Consellería de Educación e Ordenación Universitaria de la Xunta de Galicia [2010] ECLI:EU:C:2010:819, para 49; Carmela Carratù v Poste Italiane SpA [2013] ECLI:EU:C:2013:830, para 33; Ana de Diego Porras v Ministerio de Defensa [2016] ECLI:EU:C:2016:683, para 27. 125  See Chapter 3, section B.1.c. 126  Peers (n 77) 55. 127  Impact v Minister for Agriculture and Food and others [2008] ECLI:EU:C:2008:223, paras 100–​ 102. Gavieiro Gavieiro is another and more recent example of the Court reiterating its classic case law on the direct effect of directives (here a vertical dispute though): Rosa María Gavieiro Gavieiro and Ana María Iglesias Torres v Consellería de Educación e Ordenación Universitaria de la Xunta de Galicia [2010] ECLI:EU:C:2010:819, paras 73 and 82–​86.

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developments above do not aim to hinder a dynamic reading of the equal treatment provisions of the atypical workers directives. The point being made is more specific: interpretative techniques should not result in a blurring of the distinction between primary and secondary rights. Such an interpretation, however, may be made in the light of fundamental rights and be firmly grounded in the dynamic of the relevant piece of legislation. The second point is a caveat that relates specifically to clause 4(1) of the PTW Directive. The Court’s case law on the PTW Directive has established a closer connection between the legislative provision and the constitutional right to equal treatment than has been described so far. In Wippel the Court stated that: The prohibition on discrimination enunciated in the above mentioned provisions [including Clause 4(1) PTW Directive] is merely a particular expression of a fundamental principle of Community law, namely the general principle of equality.128

In the specific context of the PTW Directive, the Court has thus asserted and repeated that the legislative provision gives flesh to the fundamental right.129 The practical implications of this statement, such as the possibility to rely on the Kücükdeveci effect as called for by Peers, are not yet known. Importantly, the initial joint reference to the legislative and constitutional rights in the above abstract from the Wippel case originates from a joint analysis of the PTW Directive, and of Directive 76/​207 on the implementation of the principle of equal treatment for men and women as regards access to employment, vocational training, and promotion and working conditions.130 The Court was in fact jointly analysing legislation on part-​time workers and sex equality law without clearly distinguishing between the two. The close link between sex equality legislation and the constitutional right to equal treatment between men and women may thus have—​almost accidentally—​spilt over into EU law on part-​time workers. The Court then repeated the formula extracted from the Wippel case in reasoning relating to the PTW Directive only.131 Admittedly, there is a close connection between the law on sex equality and that on part-​time workers, as part-​time workers are often female workers. Whether the Court made a mature decision to use the Kücükdeveci formula in the context of the PTW Directive, while consistently avoiding its use for clause 4(1) of the the FTW Directive, remains to be seen. Advocate General Ruiz-​Jarabo Colomer, for his part, had clearly indicated already that he did not look favourably on the extension of the Kücükdeveci case law to the PTW Directive.132 128  Nicole Wippel v Peek & Cloppenburg GmbH & Co KG [2004] ECLI:EU:C:2004:607, para 56. 129  Istituto nazionale della previdenza sociale (INPS) v Tiziana Bruno and Massimo Pettini and Daniela Lotti and Clara Matteucci [2010] ECLI:EU:C:2010:329, para 58; Dai Cugini NV v Rijksdienst voor Sociale Zekerheid [2011] ECLI:EU:C:2011:223, para 35. 130  Nicole Wippel v Peek & Cloppenburg GmbH & Co KG [2004] ECLI:EU:C:2004:607, paras 54–​56. 131  Istituto nazionale della previdenza sociale (INPS) v Tiziana Bruno and Massimo Pettini and Daniela Lotti and Clara Matteucci [2010] ECLI:EU:C:2010:329, para 58; Dai Cugini NV v Rijksdienst voor Sociale Zekerheid [2011] ECLI:EU:C:2011:223, para 35. 132  Opinion of Advocate General Ruiz-​Jarabo Colomer, Othmar Michaeler, Subito GmbH and Ruth Volgger v Amt fur sozialen Arbeitsschutz and Autonome Provinz Bozen [2008] ECLI:EU:C:2008:42, paras 21–​24. The Court, however, did not explicitly address the point: Othmar Michaeler, Subito GmbH and Ruth Volgger at 248.

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A third and final word ought to be devoted to the TAW Directive. Article 5 of the TAW Directive has not been subject, as such, to any rulings of the Court to date. Nevertheless, its structure and content is remarkably broad and seems particularly remote from the fundamental right to equal treatment. Standards providing less protection than that required by the equal treatment clause may be adopted but have to comply with a specific set of substantive and procedural requirements. Such rules ought to be set by Member States after consulting social partners, and (i) relate to pay for workers who have a permanent contract of employment with a temporary work agency and continue to be paid in the time between assignments;133 or (ii) give social partners134 the option of upholding or concluding collective agreements which establish other arrangements concerning the working and employment conditions. Concerning the latter option, Member States in which there is either no system in law for declaring universally applicable collective agreements, or no such system in law or practice for extending their provisions to all similar undertakings in a certain sector or geographical area, may still establish arrangements that are ‘sufficiently precise and accessible to allow the sectors and firms concerned to identify and comply with their obligations’.135 As a consequence of the malleable nature of this equal treatment clause, it is perhaps the provision of the atypical workers directives for which the substantive link with the fundamental right to equal treatment is the weakest. However, temporary workers will often be employed by a private undertaking, so that calls to make use of the Kücükdeveci effect in that context may be more pressing than in the context of the other directives.136

2. Equal treatment clauses for third-​country nationals legally residing in the EU A final category of equal treatment provisions relates to third-​country nationals legally residing in the EU. This set of equal treatment rights is clearly distinct from the previous one for two closely interwoven reasons: it primarily serves a gap-​filling function, and is highly fragmented. There has so far been no confusion between the legislative and constitutional versions of the principle of equal treatment in this context. Despite the fact that criteria137 (i) and (ii) would be fulfilled, criterion (iii) is not, as we shall now see. The reluctance of the Member States to see EU interference with their migration policies has deep implications for the protection of third-​country nationals against 133  Temporary Agency Work Directive 2008 (n 63) Article 5(2). 134  ibid Article 5(3): ‘At the appropriate level and subject to the conditions laid down by the Member States.’ 135  ibid Article 5(4). Furthermore:  ‘In particular, Member States shall specify, in application of Article 3(2), whether occupational social security schemes, including pension, sick pay or financial participation schemes are included in the basic working and employment conditions referred to in paragraph 1.’ Note that the Court also sometimes frames the use of anti-​discrimination law in procedural terms, eg Mohamed Daouidi v Bootes Plus SL, Fondo de Garantía Salarial, Ministerio Fiscal [2016] ECLI:EU:C:2016:917, para 57. 136  Peers (n 77) 30 and 45. 137  For explanations of these criteria, see section A.2.

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discrimination. The main provisions of EU anti-​discrimination law are biased against third-​country nationals. Although today a large majority of those lawfully residing in the EU have a legal status covered by EU law (as long-​term residents or family members of another third-​country national),138 the Court maintains that the prohibition of nationality discrimination contained in Article 18 TFEU does not apply to them.139 Furthermore, the Race Equality Directive (although it largely benefits third-​country nationals) explicitly excludes discrimination on grounds of nationality from its scope. And it does not cover provisions governing the entry and residence of third-​country nationals or stateless persons and treatment that arises from legal status either.140 Nevertheless, the entry into force of the Amsterdam Treaty141 and a political context characterized by the will to approximate the rights of third-​country nationals to those of EU citizens have made it possible to consolidate the rights of the former.142 As a result, EU law is now dotted with a series of equal treatment rights for select categories of third-​country nationals.143 These rights are tailored to prevent the equal treatment provision from entitling the third-​country national to claim advantages (such as access to the labour market or entitlement to social benefits) beyond those which the specific legal status in the host Member State allows. The starting point is the equal treatment provision relating to third-​country national workers who have been admitted for the purpose of work or who are allowed to work.144 The Single Permit Directive provides for a common set of rights including a right to equal treatment with nationals of the host state with regard to a fairly broad range of advantages, such as working conditions, recognition of diplomas, or advice services afforded by employment offices.145 However, the Member States have reserved the rights significantly to restrict equal treatment for several of these advantages, in particular education and vocational training, social security, tax benefits, and access to and supply of goods and services.146 138  Kees Groenendijk, ‘Access of Third-​country Nationals to Employment under the New EC Migration Laws’ in François Julien-​Laferrière, Henri Labayle, and Örjan Edstrom (eds), The European Immigration and Asylum Policy: Critical Assessment Five Years after Amsterdam (1st edn, Bruylant 2005) 149, 172. 139  Athanasios Vatsouras and Josif Koupatantze v Arbeitsgemeinschaft (ARGE) Nürnberg 900 [2009] ECLI:EU:C:2009:344, para 52. 140  Council Directive (EC) 2000/​43 of 29 June 2000 implementing the principle of equal treatment between persons irrespective of racial or ethnic origin [2000] OJ L180/​22, Recital (13) and Article 3(2). See also Servet Kamberaj v Istituto per l’Edilizia Sociale della Provincia autonoma di Bolzano (IPES) and others [2012] ECLI:EU:C:2012:233, para 49. 141  In particular the current Article 79(2)(a)–​(b) TFEU. 142  See eg Articles 67(2) and 79(1) TFEU; European Council, ‘Presidency Conclusions’ (Tampere, 15–​16 December 1999). 143  See Elspeth Guild and Steve Peers, ‘Out of the Ghetto? The Personal Scope of EU Law’ in Steve Peers and Nicola Rogers (eds), EU Immigration and Asylum Law (Martinus Nijhoff Publishers 2006) 96. 144  Both are assessed in accordance with national or EU law. 145  Directive (EU) 2011/​98 of 13 December 2011 on a single application procedure for a single permit for third-​country nationals to reside and work in the territory of a Member State and on a common set of rights for third-​country workers legally residing in a Member State [2011] OJ L343/​1, Article 12(1). 146  ibid Article 12(2)–​(4), see Tamara Jonjić and Georgia Mavrodi, ‘Immigration in the EU: Policies and Politics in Times of Crisis 2007–​2012’ (EUDO Report, Florence, November 2012), 17–​20.

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A more protective equal treatment provision concerns third-​country nationals who have legally and continuously resided for five years in a given Member State. If they fulfil all requirements put forward in the Long-​Term Residents Directive to qualify for the status of ‘long-​term residents’, third-​country nationals enjoy equal treatment with nationals of the host state not only in terms of working conditions, but also in access to economic activity, as well as a range of other advantages, such as access to education and tax benefits.147 Although significant, the possibilities for Member States to restrict these equal treatment rights are more limited than for third-​country workers in general.148 These key equal treatment provisions, as well as several others enshrined in EU migration directives,149 contribute to counterbalancing the limits on the scope of the prohibition of nationality discrimination and on racial and ethnic origin discrimination. The equal treatment rights of third-​country nationals tend to be more protective as the length of stay, the degree of integration, as well as the economic input of the third-​country national increases.150 There have only been three rulings by the Court to date on such equal treatment clauses. All three rulings suggest that these provisions will be understood as directly and exclusively related to the dynamics of legislation-​making on migration, thereby avoiding an organic connection with the constitutional version of the right to equal treatment. There is therefore no confusion to date on the legal rank (legislative versus constitutional) of the said equal treatment rights, nor on their content. The first case, Kamberaj, related to the Long-​Term Residents Directive. The Court’s reasoning on differential treatment is very concise and suggests that the Court understands this provision as corresponding to a broad manifestation of the principle of equal treatment.151 There are no references to more specific EU equality law such as the general principle. Importantly, the Court indicates that it will interpret the equal treatment rights of long-​term residents in the light of their social purposes to the greatest extent possible, and recalls that equal treatment is meant to contribute to the integration of third-​country nationals.152 A similar approach was adopted in the second and latest case on the Long-​Term Residents Directive, P and S. Here, the test used to examine the prohibition of 147  Directive (EC) 2003/​109 of 25 November 2003 concerning the status of third-​country nationals who are long-​term residents [2004] OJ L16/​44 Article 11(1). 148  ibid Article 11(2)–​(4). 149  See also Council Directive (EC) 2003/​86 of 22 September 2003 on the right to family reunification [2003] OJ L251/​12, Article 14(1); Council Directive (EC) 2009/​50 of 25 May 2009 on the conditions of entry and residence of third-​country nationals for the purposes of highly qualified employment [2009] OJ L155/​17, Article 14(1); Directive (EU) 2014/​36 of 26 February 2014 on the conditions of entry and stay of third-​country nationals for the purpose of employment as seasonal workers [2014] OJ L94/​375, Article 23; Directive (EU) 2014/​66 of 15 May 2014 on the conditions of entry and residence of third-​country nationals in the framework of an intra-​corporate transfer [2014] OJ L157/​1, Article 18. There is no case law to date on these provisions. 150  Contrast, for instance, Council Directive (EC) 2009/​50 (n 149) Article 14 with Directive (EU) 2014/​36 (n 149) Article 23. 151  Servet Kamberaj v Istituto per l’Edilizia Sociale della Provincia autonoma di Bolzano (IPES) and others [2012] ECLI:EU:C:2012:233, paras 72–​73. 152  ibid para 90. See further Steve Peers, ‘Case Note on Kamberaj’ (2013) 50 CML Rev 529.

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discrimination is explicitly equated with the broad expression of the principle of equal treatment. This requires that comparable situations must not be treated differently, and that different situations must not be treated in the same way, unless such treatment is objectively justified.153 It is remarkable that the Court only refers to the ‘principle’ of equal treatment and not to the ‘general principle’ of equal treatment which has the same content, thereby exclusively locating its analysis at a legislative level. There are no references to more specific EU equality law in the ruling and, instead, emphasis is placed on the purpose of the Long-​Term Residents Directive, which is the integration of third-​country nationals.154 More recently, in Martinez Silva, the Court was invited to interpret the equal treatment clause contained in the Single Permit Directive. Once again, the Court barely discussed the content of the prohibition of discrimination and drew no parallels with EU equality law. Instead, the Court recalled—​relying on an earlier statement in Kamberaj—​that derogations to the equal treatment clause of the Long-​ Term Residents Directive as well as that of the Single Permit Directive ought to be interpreted strictly, so that those derogations could be relied upon only if the authorities in the Member State clearly stated that they intended to rely on them.155 Therefore, equal treatment clauses incorporated in EU migration legislation have so far not been related to other branches of EU equality law. As for flexible forms of employment examined earlier, these equal treatment rights are interpreted in the light of the specific purpose of EU legislation in the relevant field—​here with an aim to integrate third-​country nationals or protect them as economic workers as part of EU migration policy. There has been no confusion to date with constitutional expressions of the right to equal treatment. So far, there are no signs of attempts at drawing a parallel with the case law related to the Article 19 TFEU directives examined in Chapter 3. The particularly sensitive nature of EU migration policy, as well as the fact that the directives regulating this field seem to relate primarily to vertical relationships, unlike in Kücükdeveci (and following case law), may explain this approach.

C.  EU Equality and Data Protection Law: Parallel Constitutional Designs and Challenges Conversely, the cautious application of the criteria identified in section A may help to pinpoint the existence of legislation giving expression to the fundamental right to data protection. The constitutional design of this area of law is indeed remarkably close to that of EU equality law. As we shall see immediately, there is a fundamental right to data protection protected as such in EU constitutional law—​criterion (i) of 153  P and S v Commissie Sociale Zekerheid Breda and College van Burgemeester en Wethouders van de gemeente Amstelveen [2015] ECLI:EU:C:2015:369, para 41. 154  ibid para 46. 155  Kerly Del Rosario Martinez Silva v Istituto nazionale della previdenza sociale (INPS) and Comune di Genova ECLI:EU:C:2017:485, paras 29–​30.

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the analytical framework suggested earlier is thus fulfilled. The said right is substantiated through secondary legislation—​criterion (ii) is thus also met. Much of our attention will then be devoted to criterion (iii). It will be argued that there are several reasons for the existence of an organic link between the data protection legislation and the fundamental right to data protection. The fundamental right to data protection is asserted in Article 8 of the Charter as well as in Article 16(1) TFEU. Article 16 TFEU can be found towards the beginning of the Treaty under the title ‘Provisions having general application’, just before the provisions on non-​discrimination and citizenship of the EU. Both Article 8 of the Charter and Article 16(1) TFEU clearly state: ‘Everyone has the right to the protection of personal data.’ Article 16(1) TFEU thus seems to be capable of producing a direct effect in a similar way to Article 157(1) TFEU in the context of sex equality in pay, as seen in Defrenne II.156 Article 16(2) TFEU allows for the adoption of legislation to: . . . lay down the rules relating to the protection of individuals with regard to the processing of personal data by Union institutions, bodies, offices and agencies, and by the Member States when carrying out activities which fall within the scope of Union law, and the rules relating to the free movement of such data.

While the first and main directive for the protection of personal data had been adopted using an internal market legal basis (Data Protection Directive),157 the newly adopted so-​called General Data Protection Regulation (GDPR), which repealed its predecessor, has been adopted on the basis of Article 16(2) TFEU.158 Despite being grounded in a stand-​alone Treaty provision, separately from the provisions on the internal market, the new regulatory framework actually combines two objectives. According to Article 1(1), the GDPR ‘lays down rules relating to the protection of natural persons with regard to the processing of personal data and rules relating to the free movement of personal data’. According to Article 1(2), the GDPR ‘protects fundamental rights and freedoms of natural persons and in particular their right to the protection of personal data’. In other words, while the fundamental rights dimension is stronger than in the earlier instrument,159 it coexists with the internal market function of the instrument.160 The dual purpose of EU

156  See Chapter 3, section B.1.a. 157  Directive (EC) 95/​46 of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data [1995] OJ L281/​31; adopted on the basis of the then Article 100a TEC. 158  Regulation (EU) 2016/​679 of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/​46/​ EC [2016] OJ L119/​1 (General Data Protection Regulation). 159  As argued, for instance, by Antonella Galetta and Paul de Hert, ‘The Proceduralisation of Data Protection Remedies under EU Data Protection Law: Towards a More Effective and Data Subject-​ oriented Remedial System?’ (2015) 1 REALaw 125. 160  For an overview of the historical evolution, see Orla Lynskey, The Foundations of EU Data Protection Law (OUP 2015) 58–​61. On the dual objective of the GDPR and broad conceptual questions raised by the complex nature of data protection law and the part that it plays in the EU legal order, see ibid 75–​86.

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data protection law is in fact also clear from the actual wording of Article 16(2) TFEU, which refers to free movement. In so far as one of the objectives of the GDPR is indeed to protect a fundamental right, as mandated by Article 16 TFEU, certain provisions could be said to constitute an instrument giving expression to the fundamental right to data protection and to fulfil all three criteria set out in section A of this chapter.161 As observed by Lynskey, the data protection regime is not limited to cross-​border situations or to problems that have clear economic implications.162 Furthermore, the relevant legal framework applies to vertical as well as to private relationships.163 In that sense the EU data protection regime has important similarities to EU equality law164 so that several parallels with the points discussed so far can be made. To start with, one could seek to rely on the Mangold and Kücükdeveci case law165 to enhance the legal effects of the initial Data Protection Directive that was in force until 24 May 2018.166 There examples abound of alleged breaches of data protection law by private entities, such as search engines. Settings in which domestic law may not have adequately implemented the former Data Protection Directive ought also to abound. Furthermore, pre-​Treaty of Lisbon, there was no expression of the right to data protection in the treaties themselves. The possibility to rely on a directive giving expression to the fundamental right to data protection in disputes between private parties could therefore prove useful. Yet, arguing that the Data Protection Directive gave expression to the fundamental right to data protection may not be obvious.167 Unlike what has just been explained in relation to the GDPR, the directive does not have a clear-​cut fundamental rights dimension. Pre-​Lisbon, the constitutional framework (legal basis as well as legal status of the Charter) was also noticeably less focused on fundamental rights than it is today. Still, some of the provisions of the directive do ‘implement’ fundamental rights as noted by the Court itself.168 The matter came up in Satamedia, when the Commission sought to rely on Mangold to assert that the Data Protection Directive, read in conjunction with a constitutional version of the right to data protection, could be relied upon to set aside a domestic rule.169 Advocate General Kokott firmly rejected the proposal and challenged the approach of the Court in the Mangold ruling170 (at the time, the ruling had not yet been confirmed by the Kücükdeveci case). As for the Court, it simply ignored the question.171 As a consequence, the possibility of transposing the Kücükdeveci approach in the context of data protection law has not yet been 161  See further ibid 39 et seq and 132. 162  ibid  51–​54. 163  ibid 18. 164  See section C.    165  See Chapter 3, section B.1.c. 166  General Data Protection Regulation (n 158) Article 99. 167  See also Lynskey (n 160) 120 et seq. 168 eg Camera di Commercio, Industria, Artigianato e Agricoltura di Lecce v Salvatore Manni ECLI: EU:C:2017:197, paras 40 and 47. 169  Opinion of Advocate General Kokott, Tietosuojavaltuutettu v Satakunnan Markkinapörssi Oy and Satamedia Oy [2008] ECLI:EU:C:2008:266, para 102. 170  ibid paras 103–​104. 171  Tietosuojavaltuutettu v Satakunnan Markkinapörssi Oy and Satamedia Oy [2008] ECLI:EU: C:2008:727, paras 50–​62.

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addressed by the Court. Now, as the Data Protection Directive is being replaced by a Regulation (the GDPR), the Kücükdeveci case is becoming less relevant for this area of EU law.172 Unlike directives, regulations may indeed be directly relied upon in litigation between private parties before domestic courts.173 Furthermore, Article 16(1) TFEU is likely to have a horizontal direct effect, as just argued. Second and more broadly, the tension between the constitutional and legislative versions of rights may create uncertainty as to their respective content. For instance, in Digital Rights Ireland174—​and as could also stem from rulings such as Kücükdeveci, Rinke, or Strack in the field of equality law175—​the Court seems to merge the substance of the primary right with that of secondary legislation. In Digital Rights Ireland the Court indeed constructs the essence of the fundamental right to data protection in Article 8 of the Charter through a ‘semi-​implicit’ reference to Article 17(1) of the Data Protection Directive on the duty of Member States to ensure that appropriate technical and organizational measures are adopted against accidental or unlawful destruction, accidental loss, or alteration of the data.176 Lynskey convincingly argues that such uncertainties in the relationship between the two sets of rights (constitutional versus legislative) are very much present in the context of data protection law.177 As she observes, the confusion goes right back to the origins of today’s constitutional texts. Explanations to its draft178 indicated that Article 8 of the Charter is partly ‘based’ on the Data Protection Directive and that ‘the right to protection of personal data is to be exercised under the conditions laid down in the above Directive, and may be limited under the conditions set out by Article 52 of the Charter’. As a consequence, the fundamental right is intertwined with the legislation.179 The preamble to the GDPR adds to the confusion by referring to Article 16 TFEU in its entirety as a legal basis. Little attention is thus paid to the distinct constitutional functions of Article 16(1) and 16(2) TFEU: as sketched out in the context of EU equality law earlier, Article 16(2) TFEU is the only enabling provision of the two.180 172  Note that other directives on data protection are much more directly concerned with vertical relations and are thus less likely to raise interpersonal disputes, eg Directive (EU) 2016/​680 of 27 April 2016 on the protection of natural persons with regard to the processing of personal data by competent authorities for the purposes of the prevention, investigation, detection or prosecution of criminal offences or the execution of criminal penalties, and on the free movement of such data, and repealing Council Framework Decision 2008/​977/​JHA [2016] OJ L119/​89. 173  Antonio Muñoz y Cia SA and Superior Fruiticola SA v Frumar Ltd and Redbridge Produce Marketing Ltd [2002] ECLI:EU:C:2002:497. 174  Digital Rights Ireland Ltd v Minister for Communications, Marine and Natural Resources and others and Kärntner Landesregierung and others [2014] ECLI:EU:C:2014:238. 175  See Chapter 3, section B. 176  Digital Rights Ireland Ltd v Minister for Communications, Marine and Natural Resources and others and Kärntner Landesregierung and others [2014] ECLI:EU:C:2014:238, para 40. For the most helpful explanations of Orla Lynskey on this matter, see Lynskey (n 160) 271. 177  ibid 39 and 268 et seq. 178  Draft Charter of Fundamental Rights of the European Union (Brussels, 11 October 2000), see notes on Article 8. 179  The same ambiguity still exists in the Explanations relating to the Charter of Fundamental Rights [2007] OJ C303/​17 on Article 8. These explanations ‘shall be given due regard by courts of the Union and of the Member States’ by virtue of Article 52(7) CFEU itself. 180  See also Chapter 3, sections A.2 and A.3.

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This can lead to difficulties in the more specific context of judicial review. It was pointed out earlier that the confusion between constitutional and legislative versions of rights may limit the possibility for EU political institutions to redesign a fundamental rights policy through new legislation.181 Although worded in different terms, the same difficulty has been identified in the context of the EU data protection reform. Purtova182 and Lynksey183 have each raised the concern that aspects of the recently adopted (and lengthy) GDPR may have to be tested against the fundamental right that has itself been shaped up by reference to corresponding legislation.184 If the very recent provisions of the GDPR were indeed challenged, they could be reviewed against the primary right to data protection, which may itself be defined by reference to (old or new) legislative guidance. The procedural setting of such a case would be very similar to that in Test-​Achats:185 a challenge to the validity of a specific provision of an instrument giving expression to the corresponding fundamental right. The subject matter of the discussion could involve more direct competition between old and new legislative guidance, on the one hand, and the newly established relevant constitutional right, on the other. The GDPR indeed replaces another piece of legislation with some overlaps.186 Nevertheless, as fundamental rights protection is only one of the two objectives of the data protection legislation, the substance of the case and interplay with the primary fundamental right would depend greatly on the specific provision challenged. The constitutional design of EU data protection law is therefore remarkably close to that of EU equality law. We could expect some of the conceptual and technical challenges identified in earlier chapters to reoccur in the context of the fast growing body of case law on data protection.

181  See Chapter 3, section B.1.d. 182 Nadezhda Purtova, ‘Default Entitlements in Personal Data in the Proposed Regulation: Informational Self-​determination off the Table . . . and Back on Again’ (2014) 30 CLSR 6, 11. 183  Lynskey (n 160) 269. 184  One further point raised by both Nadezhda Purtova (Purtova (n 182) 11) and Orla Lynskey (Lynskey (n 160) 74–​75)—​although through different lenses—​that could have broader ramifications in the future is the recourse to delegation of powers to the Commission on matters affecting fundamental rights. See, for instance, Article 6(1)(f ) read in conjunction with Article 6(5) of the Commission (EU), ‘Proposal for a Regulation on the protection of individuals with regard to the processing of personal data and on the free movement of such data (General Data Protection Regulation)’ COM (2012) 11 final, 25 January 2012, according to which the Commission shall be empowered to adopt delegated acts for the purpose of further specifying the conditions for processing data when necessary for the purposes of the legitimate interests pursued by a controller, except where such interests are overridden by the interests or fundamental rights and freedoms of the data subject which require protection of personal data, in particular where the data subject is a child. This provision has disappeared from the final text. 185  See Chapter 3, section B.2.b. Drawing a similar parallel, see Hielke Hijmans, ‘The European Union as a Constitutional Guardian of Internet Privacy and Data Protection: The Story of Article 16 TFEU’ (DPhil thesis, University of Amsterdam 2016) 247–​48. 186  Unlike in Test-​Achats, where Directive 2004/​113 was the first legislative tool regulating equal treatment on grounds of sex in access to goods and services.

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D.  Conclusion: EU Equality and Data Protection Law at the Forefront of EU Law-​Making on Fundamental Rights? In the conclusion to Chapter 3, there were suggestions to provide a better articulation of the relationship between the constitutional and legislative layers of norms within a given fundamental rights policy. If the approach criticized in Chapter 3 for relying too heavily on constitutional forms of protection is maintained, though, the present Chapter 4 explored conceptual tools to narrow down its impact. To that effect, we have focused on extracting from existing case law criteria to better identify the existence and/​or the contours of legislation giving expression to fundamental rights. This may also help to pinpoint areas of EU law where legislative and constitutional versions of the same right are in tension. As will now be clear to the reader, we use three cumulative criteria to identify the existence of EU legislation giving shape to a fundamental right: criterion (i) there is a fundamental right protected as such by EU constitutional law; criterion (ii) legislation gives flesh to a corresponding right; and criterion (iii) there is an organic relationship between the legislation and the constitutional right. Relying on these criteria, it has been argued that EU social policy and equal treatment clauses scattered across EU labour and migration law do not give expression to the corresponding version of the fundamental right in such a way that confusion between the two layers of norms would be possible. The Court itself has maintained the distinction between these pieces of legislation and fundamental rights owing to two techniques: avoidance and demarcation. The second technique is to be favoured over the first one. Demarcation, as seen in AMS187 and Del Cerro Alonso,188 indeed acknowledges the overlap between legislation and constitutional rights, but clearly distinguishes between the two levels of norms. This leaves observers with a clearer picture than legal reasoning, which does not address the link between legislation and the relevant and closely related fundamental right. The case law of the Court on the FTW Directive suggests that the Court may express its difficulty in maintaining the distinction between two layers of legislative and constitutional rights by referring to ‘particularly important principles of social law’. It is interesting to note that this reference has not only been made in relation to the equal treatment provisions of the FTW Directive, but also with certain provisions of the WT Directive.189 This formula has indeed been used in relation to 187  Association de médiation sociale v Union locale des syndicats CGT and others [2014] ECLI:EU:C:2014:2. 188  Yolanda Del Cerro Alonso v Osakidetza-​Servicio Vasco de Salud [2007] ECLI:EU:C:2007:509. 189  See, for instance, Maribel Dominguez v Centre informatique du Centre Ouest Atlantique and Préfet de la région Centre [2011] ECLI:EU:C:2012:33, para 16: ‘according to settled case law, the entitlement of every worker to paid annual leave must be regarded as a particularly important principle of European Union social law from which there can be no derogations and whose implementation by the competent national authorities must be confined within the limits expressly laid down by Council Directive 93/​ 104/​EC of 23 November 1993 concerning certain aspects of the organisation of working time (OJ 1993 L 307, p. 18) itself, that directive being now codified by Directive 2003/​88 (see Case C-​173/​99 BECTU [2001] ECR I-​4881, paragraph 43; Joined Cases C-​350/​06 and C-​520/​06 Schultz-​Hoff and Others [2009] ECR I-​179, paragraph 22; and Case C-​214/​10 KHS [2011] ECR I-​11757, paragraph 23)’.

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the right to paid annual leave. In addition to expressing the Court’s understandable discomfort with the precise legal status of a given right, the formula may usefully serve as a vehicle to support a choice of interpretative techniques. For instance, the case law on the equal treatment provisions scattered across EU labour law justify a nuanced call for coherent and systemic interpretation. Reference to the important principle of social law underlying these clauses may constitute a simple signal of the joint conceptual underpinnings of these provisions, without tying them to a constitutional setting. In contrast to the examples taken from social law, it has been argued that EU data protection law may in many ways be said to constitute an area of EU law where legislation gives expression to a fundamental right protected as such at a constitutional level. This finding allows for a useful and critical reflection on parallel developments in EU equality and data protection law. Questions on the applicability of specific instruments, the techniques used to define the content of the constitutional right with reference to legislation, and the difficulties that this may create to ensure judicial review, are indeed likely to share common characteristics in the two fields. It is in further allowing for policy and legislative innovation that the added value of comparing these two EU fundamental rights policies will prove most useful, as will now be discussed. However, before delving further in that direction, it should be made clear that the analysis of select EU instruments in this section is not exhaustive. The focus has been on explicit attempts at relying on the parallel with EU equality law in the field of social law, equal treatment clauses spread across EU employment and migration law that share many of the features of ‘core’ EU equality law, and EU data protection law that features striking similarities with EU equality law in terms of its constitutional design. There is little doubt that other areas of EU law also possess some of these similarities. Several EU competences, although not directly or explicitly shaped in terms of fundamental rights protection, are inherently intermingled with such rights. Examples are found in EU migration and criminal law. When the EU legislature regulates these sensitive fields, it may make clear and unavoidable choices on the adequate level of fundamental rights protection. This may be seen in the wording of the Family Reunification Directive,190 the Returns Directive,191 the Directive on the right to interpretation and translation in criminal proceedings,192 the Directive on the right to information in criminal proceedings,193 the Directive on access to a lawyer in criminal proceedings,194 or the Directive on the strengthening of certain 190  Directive (EC) 2003/​86 (n 149). 191  Directive (EC) 2008/​115 of 16 December 2008 on common standards and procedures in Member States for returning illegally staying third-​country nationals [2008] OJ L348/​98. 192  Directive (EU) 2010/​64 of 20 October 2010 on the right to interpretation and translation in criminal proceedings [2010] OJ L280/​1. 193  Directive (EU) 2012/​13 of 22 May 2012 on the right to information in criminal proceedings [2013] OJ L142/​1. 194  Directive (EU) 2013/​48 of 22 October 2013 on the right of access to a lawyer in criminal proceedings and in European arrest warrant proceedings, and on the right to have a third party informed upon deprivation of liberty and to communicate with third persons and with consular authorities while deprived of liberty [2013] OJ L294/​1.

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aspects of the presumption of innocence and of the right to be present at the trial in criminal proceedings.195 As such choices overlap with general principles of EU law or provisions of the Charter, it could be tempting to treat certain aspects of these instruments as giving expression to a fundamental right. A word of caution must be given here. EU migration and criminal law do not appear to result from a reflection on how to promote a specific fundamental right. Both are rather concerned with ensuring the efficiency of the related policies and consistency with international law requirements, rather than being intended and designed to promote specific fundamental rights (criterion (iii) would therefore not be met).196 The distinction is of significant importance for our purpose, as it implies that political institutions will often not be primarily concerned with shaping fundamental rights protection when drafting legislation. As a consequence, the risk of confusion between constitutional and legislative versions of fundamental rights is less pressing than in the case of anti-​discrimination law and data protection law. However, one may not exclude the presence of specific instruments or provisions giving expression to a fundamental right in these contexts, which would then raise conceptual and practical challenges, as explored throughout this book.

195  Directive (EU) 2016/​343 of 9 March 2016 on the strengthening of certain aspects of the presumption of innocence and of the right to be present at the trial in criminal proceedings [2016] OJ  L65/​1. 196  Arguing along similar lines, see Piet Eeckhout, ‘The EU Charter of Fundamental Rights and the Federal Question’ (2002) 39 CML Rev 945, 985.

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5 The Legislative Embedding of the Governance of EU Equality Law The earlier chapters have warned against relying too heavily on a constitutional narrative to address the protection of fundamental rights in the EU. This indeed risks hindering political debate on fundamental rights at European level. Other features of EU law can be usefully exploited to support the development of a fundamental rights culture within the domestic arena. Indeed, one of the great added values of EU intervention in the field of fundamental rights protection lies in the governance tools available under EU law.1 Although limited and imperfect, these governance tools are remarkably advanced and sophisticated for a supranational organization seeking to combat fundamental rights violations. Understood through that lens, the main added value of EU intervention on equal treatment lies precisely in stimulating societal change through dynamic processes and legal innovation flowing from legislative intervention. In that sense, the emphasis on political input not only relates to the definition of legal concepts at an EU level but also, and most importantly, to setting out conditions for societal change at the domestic level. There are two striking features in the governance of the fundamental right to equal treatment in EU law as it stands today (see section A). EU legislative intervention has provided an infrastructure to facilitate access to justice to enhance the implementation of the directives as well as supporting the diversification of the governance tools to promote equal treatment.2 It will be argued that the insertion of procedural tools has been expanding to constitute an overall coherent common procedural equality law and that the added value of the diversification of governance tools—​which remains underexplored—​is likely to be significant. EU equality law and policy can in that sense be treated as a laboratory for the governance of fundamental rights at supranational level (see section B). The relevant section engages with early attempts to assess the added value of the chosen forms of fundamental rights policy-​making fifteen to twenty years after the adoption of the relevant legal framework, and builds on preliminary research. It will be observed that, although much literature on the governance of fundamental rights at

1  See also Mark Dawson, The Governance of EU Fundamental Rights (CUP 2017). 2  Tamara K Hervey, ‘Thirty Years of EU Sex Equality Law: Looking Backwards, Looking Forwards’ (2005) 4 MJ 307, 320–​21. EU Equality Law: The First Fundamental Rights Policy of the EU. Elise Muir © Elise Muir 2018. Published 2018 by Oxford University Press.

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EU level focuses on the role of actors at the European level,3 the main impact of EU fundamental rights law today may lie in creating infrastructure for the promotion of a given fundamental right at the domestic level. Specialized watchdogs, such as equality bodies, may play a particularly interesting role. Similar governance patterns have been observed in other fields of EU law which are also designed to constitute fundamental rights policies. As a consequence, understanding specific EU policies as being intended to promote a fundamental rights opens a vast area for comparative research across the given sectors to enhance our understanding of how best to improve the governance of fundamental rights at the supranational level. By way of experiment, this chapter explores the potential for legislative and jurisprudential cross-​fertilization on the notion of independent fundamental rights guardians, such as equality bodies and data protection authorities, at the domestic level (see section C).

A.  The Common Legislative Framework for the Governance of the EU Fundamental Right to Equal Treatment EU equality legislation has long included provisions related to access to justice but there has been an intensification of the process since the entry into force of the Amsterdam Treaty.4 The evolution of the procedural rules contained in EU equality law and intended to enhance the quality of the governance of the relevant policy have followed a dynamic that may be perceived as counter-​intuitive when compared with the evolution of the relevant substantive provisions. The most recent areas of EU equality law have been ‘proceduralized’5 to a much greater extent than the well-​established areas of EU equality law. Indeed, it may be briefly recalled that EU equality law finds its origin6 in the Treaty of Rome, with the prohibition of discrimination on grounds of nationality of

3  For a recent example, see Dawson (n 1). 4  The text in this section, and more specifically under sections A.1 and A.2, is largely inspired by an earlier publication: Elise Muir, ‘Procedural Rules in the Service of the “Transformative Function” of EU Equality Law: Bringing the Prohibition of Nationality Discrimination Along’ (2015) 8 REALaw 151. The text is reproduced here with permission from the journal. 5  The term ‘proceduralization’ is used to designate the process by which procedural rules are inserted into secondary EU law measures enabling the EU to develop a substantive policy such as EU equality law. The expression ‘proceduralization’ is borrowed from the French language and has been used in French literature by Emmanuelle Bribosia, ‘La lutte contre les discriminations dans l’Union européenne: une mosaïque de sources dessinant une approche différenciée’ in Christian Bayart, Stefan Sottiaux, and Sébastian van Drooghenbroack (eds), Les nouvelles lois luttant contre la discrimination (Die Keure/​La Charte 2008) 47. See also R Gellert and Paul de Hert, ‘La non-​discrimination comme réalité effective en Europe? Réflexions sur la procéduralisation du droit de l’égalité européen’ (2012) 13 Revue belge de droit constitutionnel 7. 6  See also Gillian More, ‘The Principle of Equal Treatment: From Market Unifier to Fundamental Right’ in Paul Craig and Gráinne de Búrca (eds), The Evolution of EU Law (1st edn, OUP 1999); and Mark Bell, ‘The Principle of Equal Treatment: Widening and Deepening’ in Paul Craig and Gráinne de Búrca (eds), The Evolution of EU Law (2nd edn, OUP 2011).

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an EU citizen7 exercising an economic activity with a cross-​border dimension, and the prohibition of discrimination in wages between men and women. The prohibition of nationality discrimination has developed since the late 1980s8 to protect not only EU citizens engaged or having engaged in cross-​border9 economic activities but also all those benefiting from the right to free movement in other ways (such as students).10 In contrast with other prongs of EU equality law, the prohibition of nationality discrimination only benefits EU citizens and those EU citizens whose situations have cross-​border implications. The prohibition of discrimination on grounds of sex in wages also developed to cover a much broader range of rights than the initial wording of the Treaty suggested. It grew to encompass employment-​related rights,11 social security,12 self-​ employment13 in the 1970s and 1980s, and more recently, since 2004, access to goods and services.14 As shown later, the prohibition of sex discrimination has been at the forefront of ‘legal’ innovation—​both judicial and legislative—​in the field of EU equality law. Nevertheless, the entry into force of the Treaty of Amsterdam paved the way for the legislature to tackle other types of discrimination and to build on earlier developments while modernizing EU equality law. Two key instruments were swiftly adopted. The first prohibits discrimination on grounds of race or ethnic origin in employment as well as beyond this (Racial Equality Directive).15 The second tackles discrimination on grounds of religion or belief, age, sexual orientation, or disability in employment (Employment Directive).16 These various provisions constitute a set of norms that is remarkably ambitious and sophisticated. The prohibition of discrimination is not only ambitious due to 7  Although this only became clear through the case law of the Court, eg Athanasios Vatsouras and Josef Koupatantze v Arbeitsgemeinschaft (ARGE) Nürnberg 900 [2009] ECLI:EU:C:2009:344. 8  See Siofra O’Leary, ‘Putting Flesh on the Bones of European Union Citizenship?’ (1999) 24 EL Rev 68. 9  I will not elaborate on the complex case law of the Court on the requirement for a ‘cross-​border’ element, which is beyond the scope of this chapter. 10  See Directive (EC) 2004/​38 of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States amending Regulation (EEC) No 1612/​68 and repealing Directives 64/​221/​EEC, 68/​369/​EEC, 72/​194/​EEC, 73/​148/​EEC, 75/​34/​EEC, 75/​35/​EEC, 90/​364/​EEC, 90/​365/​EEC, and 93/​96/​EEC [2004] OJ L158/​77. 11  See Directive (EC) 2006/​54 of 5 July 2006 on the implementation of the principle of equal opportunities and equal treatment of men and women in matters of employment and occupation (recast) [2006] OJ L204/​23. 12  Council Directive (EEC) 79/​7 of 19 December 1978 on the progressive implementation of the principle of equal treatment for men and women in matters of social security [1979] OJ L6/​24 is still applicable. 13  See Directive (EU) 2010/​41 of 7 July 2010 on the application of the principle of equal treatment between men and women engaged in an activity in a self-​employed capacity [2010] OJ L180/​1. 14  Council Directive (EC) 2004/​113 of 13 December 2004 implementing the principle of equal treatment between men and women in the access to and supply of goods and services [2004] OJ L373/​ 37, the adoption of which was only made possible owing to the new Article 13 TEC inserted by the Treaty of Amsterdam. 15  Council Directive (EC) 2000/​43 of 29 June 2000 implementing the principle of equal treatment between persons irrespective of racial or ethnic origin [2000] OJ L180/​22 (Racial Equality Directive). 16  Council Directive (EC) 2000/​78 of 27 November 2000 establishing a general framework for equal treatment in employment and occupation [2000] OJ L303/​16.

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the number of grounds and fields it covers but also because, unlike other international instruments, it regulates both vertical and horizontal relationships. The horizontal application of the prohibition of nationality discrimination remained controversial until recently,17 and this specific branch of EU equality law remains tainted with a stronger economic rationale. In contrast, it is unquestionable from the wording of the relevant legislation that the other prongs of EU equality law are destined to give expression to a fundamental right and to apply in interpersonal relationships. As already pointed out, in so far as EU equality law is thereby intended to ‘transform’18 societal habits and contribute to ‘inter-​personal equality per se’,19 the relevant legislative framework appears to be particularly sophisticated (when compared, for instance, with earlier national equality law regimes but also when compared to the law of the European Convention on Human Rights (ECHR)). As regards rules intended to enhance the effectiveness of the prohibition of discrimination, which is the focus of sections A.1 and A.2, the EU legislature has also built over the years (interactively with the case law of the Court of Justice of the European Union (‘the Court’)) a set of rules concerned with access to courts at the domestic level and remedies.20 Despite the fragmentation of the constitutional and legislative framework of EU equality law, these rules can today be described as the ‘common procedural law of EU equality policy’ (see section A.1). The legislative framework for the prohibition of nationality discrimination had until recently remained an exception to this trend. Yet, the approximation of the technicalities giving effect to EU rules on the prohibition of nationality discrimination with those on the prohibition of discrimination on grounds of sex, race/​ethnic origin, religion/​belief, sexual orientation, age, and disability have recently been initiated. Directive (EU) 2014/​54 is indeed devoted to measures facilitating the exercise of rights conferred on workers in the context of freedom of movement for workers.21 It will be argued that this new Directive brings the prohibition of discrimination on the ground of nationality one step closer to the fundamental rights rationale that lies behind the prohibition of other grounds of discrimination at the EU level. This allows for a more firm assertion22 of the horizontal implications of the prohibition of discrimination on the ground of nationality (see section A.2). The evolution of the rules on access to justice and judicial remedies contained in the legislative framework on EU equality law sheds light on the horizontal functions 17  See further later Section A.2.b. 18  See further Elise Muir, ‘The Transformative Function of EU Equality Law’(2013) 21 ERPL 1231. The expression ‘transformative’ applied in this context is borrowed from Alec Stone Sweet and Kathleen Stranz, ‘Rights Adjudication and Constitutional Pluralism in Germany and Europe’ (2012) 19 JEPP 92, 96. 19  Fritz W Scharpf, ‘Perpetual Momentum: Directed and Unconstrained?’ (2012) 19 JEPP 127, 132–​33. 20  See also Gellert and de Hert (n 5) 23. 21  Directive (EU) 2014/​54 of 16 April 2014 on measures facilitating the exercise of rights conferred on workers in the context of freedom of movement for workers [2014] OJ L128/​8 (Workers Directive). 22  Although not departing from the requirement that the sponsor of the right be an EU citizen and that the situation has a cross-​border dimension.

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that these rules are intended to play in the EU legal order. This adjustment of a governance system to the ambitious societal objectives it will serve can be related to what de Búrca has called the ‘hybridization’ of the classical human rights model in the context of EU equality law (see section 3). Classic human rights models are based on a clear hierarchy of norms, characterized by their high degree of precision and clarity, to be enforced through litigation. These are certainly important features of EU equality law. Yet, as pointed out in Chapter 1, the drive towards a fundamental rights policy at EU level comes with a significant methodological shift, moving away from text-​based science for fundamental rights protection towards policy-​formation and implementation.23 As it stands today, this area of law is therefore also complemented by experimentalist forms of governance. These require a heterarchical approach for the protection of individuals, where concepts are more open-​ended, processes are more horizontal and bottom-​up, and with less emphasis on the role of courts.24 Although evaluations of this new approach are still ongoing, early reports suggest that the infrastructure created and supported by EU law has had a significant impact on introducing such a change of approach.

1. The ‘ages’ of the proceduralization of EU equality policy: asserting the ‘transformative’ function of this field of EU law As the scope of EU equality law grew (see section A.1.a), so did the procedural rules designed to give it effect, and now the area constitutes an extraordinary set of norms (see section A.1.b) giving effect to a fundamental right at the supranational level (see section A.1.c).

(a) The coming of age of the procedural law of EU equality policy From the 1970s onwards, the first directives on the prohibition of sex discrimination in employment, self-​employment, and social security included a set of provisions concerned with access to justice and judicial remedies. All the relevant instruments featured a clause requiring those who consider themselves wronged as a result of a breach of the directives to ‘pursue their claims by judicial process after possible recourse to other competent authorities’.25 These directives also included a 23  Armin von Bogdandy, ‘The European Union as a Human Rights Organization? Human Rights and the Core of the European Union’ (2000) 37 CML Rev 1307, 1310. 24  Gráinne de Búrca, ‘EU Race Discrimination Law: A Hybrid Model?’ in Gráinne de Búrca and Joanne Scott (eds), Law and New Governance in the EU and the US (Hart Publishing 2006) 98–​99. 25  Council Directive (EEC) 75/​117 of 10 February 1975 on the approximation of the laws of the Member States relating to the application of the principle of equal pay for men and women [1975] OJ L45/​19, Article 2; see also Council Directive (EEC) 76/​207 of 9 February 1976 on the implementation of the principle of equal treatment for men and women as regards access to employment, vocational training and promotion, and working conditions [1976] OJ L39/​40, Article 6; Council Directive (EEC) 79/​7 (n 12) Article 6; Council Directive (EEC) 86/​378 of 24 July 1986 on the implementation of the principle of equal treatment for men and women in occupational social security schemes [1986] OJ L225/​40, Article 10; Council Directive (EEC) 86/​613 of 11 December 1986 on the application of the principle of equal treatment between men and women engaged in an activity, including agriculture, in a self-​employed capacity, and on the protection of self-​employed women during pregnancy

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requirement to protect employees against dismissal that could result from a measure taken by the employer against those bringing a complaint on the basis of the directives.26 Case law of the Court interpreting these provisions extended the protection to cover other forms of retaliation.27 The Equal Pay Directive, the first of the directives, adopted in early 1975, also included an ‘avant-​garde’ provision28 referring to the principle of ‘effectiveness’ and requiring that the: Member States shall, in accordance with their national circumstances and legal systems, take the measures necessary to ensure that the principle of equal pay is applied. They shall see that effective means are available to take care that this principle is observed.29

After this promising early stage, the proceduralization of EU sex equality law was marked by a significant addition in the 1990s. Building on the case law of the Court,30 the EU legislature adopted an instrument of a purely procedural nature: the so-​called ‘Burden of Proof Directive’.31 This directive organized a partial shift in the burden of proof in sex discrimination cases. The Member States must make sure, subject to limited exceptions,32 that the applicant only needs to establish facts from which it may be presumed that there has been discrimination. The burden of proof then rests on the respondent to prove the absence of a breach of the principle of equal treatment.33 This directive thus made it easier for an applicant to enforce his or her right to equal treatment on grounds of sex in pay and employment, as well as under the directives on pregnant workers and parental leave.34

and motherhood [1986] OJ L359/​56, Article 9; see also Council Directive (EEC) 92/​85 of 19 October 1992 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 are breastfeeding [1992] OJ L348/​1, Article 12. It may be recalled that the first case of the Court on the horizontal direct effect of Treaty provisions was the Defrenne case on the principle of equal pay between men and women: Gabrielle Defrenne v Société anonyme belge de navigation aérienne Sabena [1976] ECLI:EU:C:1976:56. 26  Such provisions that protect ‘employees’ only appear in the employment-​related directives and do not have an equivalent in the self-​employed directive and statutory social security schemes directive. 27  Belinda Jane Coote v Granada Hospitality Ltd [1998] ECLI:EU:C:1998:424. 28 See Rewe-​Zentralfinanze G and Rewe-​Zentral AG v Landwirtschaftskammer für das Saarland [1976] ECLI:EU:C:1976:188; see further the contribution by Oliver Dubos, ‘The Origins of the Proceduralisation of EU Law: A Grey Area of European Federalism’ (2015) 8 REALaw 7. 29  Directive (EEC) 75/​117 (n 25) Article 6. As the formula is very broad, it would be understood as encouraging the Member States, inter alia, to ensure efficient access to justice and judicial forms of redress. 30  Danfoss A/​S and Sauer-​DanfossApS v Skatteministeriet [1989] ECLI:EU:C:1989:383; Dr Pamela Mary Enderby v Frenchay Health Authority and Secretary of State for Health [1993] ECLI:EU:C:1993:859, on pay. 31  Council Directive (EC) 97/​80 of 15 December 1997 on the burden of proof in cases of discrimination based on sex [1998] OJ L14/​6. It was adopted on the basis of Article 2(2) of the Social Protocol annexed to the Treaty establishing the European Community, after the Treaty of Maastricht. 32  This does not apply to proceedings in which it is for the court or competent body to investigate the facts of the case. Also note that Member States may have rules of evidence which are more favourable to claimants. 33  Directive (EC) 97/​80 (n 31) Article 4. 34  Directive (EEC) 75/​117, Directive (EEC) 76/​207, and Directive (EEC) 92/​85 (all n 25) as well as Directive 96/​34 of 3 June 1996 on parental leave [1996] OJ L145/​4, as far as sex discrimination is concerned but not social security schemes and self-​employment.

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Yet, the set of procedural rules giving effect to EU equality law genuinely became more mature after the adoption of the Racial Equality Directive and the Framework Employment Directive (covering discrimination on grounds of religion/​belief, age, sexual orientation, disability) after the entry into force of the Amsterdam Treaty. Both instruments and the subsequent re-​casts (Directive on employment and Directive on self-​employment),35 broadening (Directive on access to and supply of goods and services),36 and modernization of EU sex equality law included even more advanced procedural rules. Although located in different parts of each of these five directives and not always strictly identical, the procedural provisions of the current EU equality legislation37 are very similar. This means that they can be presented together and largely understood as a common procedural law of EU anti-​ discrimination policy.

(b) The common procedural law of EU equality policy Leaving aside the non-​judicial aspects of this common procedural law, to which we will return later,38 five key elements recur in most of the legislative instruments covering the prohibition of discrimination on grounds of sex, ethnic origin/​race, religion/​belief, age, sexual orientation, and disability. While some of these elements merely strengthen earlier developments, others are more innovative. The following analysis of each of these five key elements is illustrated with quotations extracted from the Racial Equality Directive, which has to a large extent been used as a source of inspiration for the other directives. (i) Access to judicial and/​or administrative procedures To start with, all five directives include a provision on access to judicial and/​or administrative procedures39 modelled on Article 7 of the Racial Equality Directive, which is entitled ‘Defence of rights’ and states as follows: 1. Member States shall ensure that judicial and/​or administrative procedures, including where they deem it appropriate conciliation 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. 2. 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 or in support of the complainant, with his or her approval, in any judicial 35  Directive (EC) 2006/​54 (n 11); and Directive (EU) 2010/​41 (n 13). 36  Directive (EC) 2004/​113 (n 14). 37  With the notable exception of the directive on equal treatment on grounds of sex in statutory social security schemes. 38  See section A.3. 39  Directive (EC) 2000/​78 (n 16) Article 9; Directive (EC) 2004/​113 (n 14) Article 8(1) and (3–​4); Directive (EU) 2010/​41 (n 13) Article 9. Directive (EC) 2006/​54 (n 11) Article 17 only refers to judicial remedies.

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and/​or administrative procedure provided for the enforcement of obligations under this Directive. 3. Paragraphs 1 and 2 are without prejudice to national rules relating to time limits for bringing actions as regards the principle of equality of treatment.40

This provision is significantly more elaborate than its predecessors—​the sex equality directives from the 1970s and 1980s.41 The main additional feature is the necessity42 for the Member States to ensure that selected legal entities may engage in judicial and/​or administrative procedures to combat discrimination. These entities are meant to facilitate private enforcement of EU equality law by acting on behalf of or in support of the claimant and with the approval of that person.43 In the context of sex equality law, the Commission has further recommended that equality bodies (which will be presented later) should be enabled to represent individuals in equal pay claims and ensure coordination and cooperation with labour market inspection authorities.44 Meanwhile the Commission is also encouraging the development of the collective enforcement of EU law45 that would go beyond individual enforcement46 and may have interesting implications for EU equality law in the future.47 (ii) Partial shift in the burden of proof The second procedural element builds on the acquis of the directive that led to a partial shift of the burden of proof in sex equality cases.48 Yet, its scope is now much broader since it covers four directives examined in this section—​leaving aside the Directive on sex equality in self-​employment. By way of example, Article 8 of the Racial Equality Directive on ‘Burden of proof ’ reads: 1. 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.

40  Racial Equality Directive (n 15) Article 7. 41  See section A.1.a. 42  See, for instance, Racial Equality Directive (n 15) Article 7(2). 43  For an overview of national implementing measures, see European Commission, ‘Developing Anti-​Discrimination Law in Europe: The 28 EU Member States, the Former Yugoslav Republic of Macedonia, Iceland, Liechtenstein, Norway and Turkey Compared’ (2013) 121. 44  Commission (EU), ‘Recommendation on strengthening the principle of equal pay between men and women through transparency’ [2014] OJ L69/​112, points 14–​15. 45  Commission (EU), ‘Recommendation on common principles for injunctive and compensatory collective redress mechanisms in the Member States concerning violations of rights granted under Union Law’ [2013] OJ L201/​60. 46  On the distinction between public, collective, and private enforcement in EU equality law, see Mark Dawson, Elise Muir, and Monica Claes, ‘Enforcing the EU’s Rights Revolution: The Case of Equality’ (2012) 3 EHRLR 276. 47  Illustrating current reflections on the matter, Lilla Farkas, ‘Collective Action under European Anti-​Discrimination Law’ (2014) 19 European Anti-​Discrimination Law Review 7, 25; and Sara Benedi Lahuerta, ‘Enforcing EU Equality Law through Collective Redress: Lagging behind?’ (2018) 5 CML Rev 783. 48  See also Chapter 3.

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2. Paragraph 1 shall not prevent Member States from introducing rules of evidence which are more favourable to plaintiffs. 3. Paragraph 1 shall not apply to criminal procedures. 4. Paragraphs 1, 2 and 3 shall also apply to any proceedings brought in accordance with Article 7(2). 5. Member States need not apply paragraph 1 to proceedings in which it is for the court or competent body to investigate the facts of the case.49

It is worth noting that the partial shift in the burden of proof will also operate when selected legal entities act in support of or on behalf of the claimant, as enabled by provisions such as Article 7(2) of the Racial Equality Directive. The intent of the legislature is thus indeed to make it easier for victims to bring their claims to court and create a presumption of discrimination. (iii) Victimization The third component of the common procedural law of EU equality policy relates to protection against retaliation and also builds on earlier legislative and judicial developments.50 Indeed, it is very similar to the wording of the early legislation on sex equality but now covers a broad range of adverse consequences affecting the person bringing a complaint, and is now applicable to four of the five directives (leaving aside, once again, the Directive on sex equality in self-​ employment) in terms similar to those of Article 9 of the Racial Equality Directive on ‘Victimization’:51 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.52

(iv) Specialized bodies and their relationship to courts The main innovation brought about by the new directives after the entry into force of the Treaty of Lisbon (with the notable exception of the Employment Directive) relates to ‘Bodies for the promotion of equal treatment’, according to the Racial Equality Directive.53 We will deal with these bodies in greater detail later, and compare them with national data protection authorities.54 For now, it suffices to explain that Member States are required to create or designate organs for the promotion of

49  Racial Equality Directive (n 15) Article 8. 50  Such provisions that protect ‘employees’ only appear in the employment related directives and do not have an equivalent in the self-​employed directive and statutory social security schemes directive; see also Belinda Jane Coote v Granada Hospitality Ltd [1998] ECLI:EU:C:1998:424. 51  Directive (EC) 2000/​78 (n 16) Article 11; Directive (EC) 2004/​113 (n 14) Article 10; Directive (EC) 2006/​54 (n 11) Article 24. 52  Racial Equality Directive (n 15) Article 9. 53  See also Directive (EC) 2004/​113 (n 14) Article 12; Directive (EC) 2006/​54 (n 11) Article 20; Directive (EU) 2010/​41 (n 13) Article 11. 54  See section C.1.a.

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equal treatment. One of the functions55 of these equality bodies is to assist victims to pursue complaints. The Commission recommends enabling these bodies to rep­ resent individuals in equal pay claims and to ensure coordination and cooperation with labour market inspection authorities,56 thus going one step further than the equality directives require. It is hoped that these procedural tools can contribute to fulfilling the transformative function of EU equality law by facilitating access to justice and to redress mechanisms. (v) Sanctions, penalties, compensation, and reparation This is further exemplified by the last component of the common procedural framework for EU equality law that relates to sanctions, penalties, compensation, and reparation, which depends on the wording of each of the directives. These rules build on the ‘avant-​garde’ provision inserted in the Equal Pay Directive from 1975 mentioned earlier but go several steps further. They require the adoption of sanction mechanisms as well as a possibility of paying compensation to the victim.57 A Commission Recommendation further stresses the importance of remedies in cases concerning equal pay between men and women58 and a Council Framework Decision goes as far as encouraging the Member States to make use of criminal law in relation to certain forms and expressions of racism and xenophobia (although this instrument goes beyond the substantive scope of the Racial Equality Directive).59 On this matter, the wording of the equality directives varies significantly. Article 15 of the oldest of the post-​Amsterdam directives, the Racial Equality Directive, refers to the need for Member States to introduce sanctions that may include compensation:60 Member States shall lay down the rules on sanctions applicable to infringements of the national provisions adopted pursuant to this Directive and shall take all measures necessary to ensure that they are applied. The sanctions, which may comprise the payment of compensation to the victim, must be effective, proportionate and dissuasive. The Member States shall notify those provisions to the Commission by 19 July 2003 at the latest and shall notify it without delay of any subsequent amendment affecting them.61

55  In practice, many Member States now have bodies that have a quasi-​judicial function. For an overview of the competences of these national bodies, see European Commission, ‘Developing Anti-​ Discrimination Law in Europe’ (October 2013) 122–​25 and 155 et seq. 56  Commission (EU), ‘Recommendation on strengthening the principle of equal pay between men and women through transparency’ [2014] OJ L69/​112, points 14–​15. 57  This can also be read in conjunction with the case law of the Court in the field of sex equality: Sabine von Colson and Elisabeth Kamann v Land Nordrhein-​Westfalen [1984] ECLI:EU:C:1984:153; and FMC plc, FMC (Meat) Ltd, DT Duggins Ltd, Marshall (Lamberhurst) Ltd, Montelupo Ltd and North Devon Meat Ltd v Intervention Board of Agricultural Produce and Ministry of Agriculture, Fisheries and Food [1996] ECLI:EU:C:1996:40. 58  Commission (EU), ‘Recommendation on strengthening the principle of equal pay between men and women through transparency’ [2014] OJ L69/​112, point 16. 59  Council Framework Decision 2008/​913/​JHA on combating certain forms and expressions of racism and xenophobia by means of criminal law [2008] OJ L328/​55. 60  See also Directive (EC) 2000/​78 (n 16) Article 17; Directive (EC) 2004/​113 (n 14) Article 14. 61  Racial Equality Directive (n 15) Article 15.

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More recent directives are slightly more prescriptive and have a different focus.62 The latest one, the Directive on sex equality in self-​employment, focuses on compensation or reparation and prohibits the fixing of an upper limit. Its Article 10 reads as follows: The Member States shall introduce such measures into their national legal systems as are necessary to ensure real and effective compensation or reparation, as Member States so determine, for the loss or damage sustained by a person as a result of discrimination on grounds of sex, such compensation or reparation being dissuasive and proportionate to the loss or damage suffered. Such compensation or reparation shall not be limited by the fixing of a prior upper limit.63

In essence, these provisions largely echo the case law of the Court on the principle of effectiveness as a limitation on Member State’s procedural autonomy.64 Nevertheless, it is interesting to observe a change in the tone used. Rules that were initially designed to penalize are amended with a new65 (complementary) focus on compensation or reparation. This suggests a concern to better combine the private interest of the victims with the broader (public) concern to punish as well as deter.66 The common procedural law of EU anti-​discrimination policy thus covers access to justice (or administrative procedures) with support from legitimately interested entities, a partial shift in the burden of proof, protection against retaliation in case of complaints, and the creation of specialized bodies for the promotion of equal treatment, as well as a rough framework for sanctions and compensation. In other words, it is geared towards supporting complainants.

(c) Conclusion: EU procedural equality law as a key component of the ‘first’ fundamental rights policy of the EU The emergence of this common procedural law of EU anti-​discrimination policy can be related to institutional as well as teleological factors. From an institutional perspective, it may be recalled that equality law is a field of EU policy that is known for having been strongly driven by judicial developments.67 While this observation primarily 62  See also Directive (EC) 2006/​54 (n 11) Article 18; Directive (EC) 2004/​113 (n 14) Article 8(2). 63  Directive (EU) 2010/​41 (n 13) Article 10. 64  While not often detailing the content of the remedies which should be available before national courts for the violation of EU law, some areas of EU law do include more detailed provisions. See eg Consumers Injunction Directive, Directive (EC) 2009/​22 of 23 April 2009 on injunctions for the protection of consumers’ interests (Codified version) [2009] OJ L110/​30, Article 2(1); and Directive (EC) 95/​46 of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data [1995] OJ L281/​31 (1995 Data Protection Directive), Article 23. 65  See eg Council Directive (EC) 2004/​113 (n 14) Articles 8(2) and 14. 66  See further Iustina Ionescu and Romanita Iordache, ‘Discrimination and its Sanctions—​Symbolic vs Effective Remedies in European Anti-​Discrimination Law’ (2014) 19 European Anti-​Discrimination Law Review 7, 11; and Asociaţia Accept v Consiliul Naţional pentru Combatere a Discriminării [2013] ECLI:EU:C:2013:275. 67  See Tamara K Hervey, ‘Thirty Years of EU Sex Equality Law:  Looking Backwards, Looking Forwards’ (2005) 4 MJ 319.

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refers to substantive equality legislation, it also applies to the development of its procedural dimension. For instance, the reorganization of the burden of proof as well as the requirement for efficient and dissuasive sanctions largely originates from the case law of the Court on sex equality.68 However, certain procedural innovations result exclusively from legislative law-​making. The most noticeable set of rules, for the purpose of this contribution, are the requirements that Member States shall ensure that interest groups ‘may engage, either on behalf or in support of the complainant, with his or her approval, in any judicial and/​or administrative procedure’69 and shall designate specialized bodies capable of providing assistance to victims pursuing complaints.70 Both the Court and the EU legislature, especially following the entry into force of the Lisbon Treaty and its ambitious anti-​discrimination legal basis in Article 19 TFEU, have thus sought to develop procedural tools in the service of EU equality policy. This leads us to the second set of factors that explain the emergence of these common procedural rules: it is of a teleological nature. As noted in Chapter 1, Article 19 TFEU grants the EU legislature the power to enact instruments to ‘combat discrimination’ and Article 157 TFEU is designed to ensure ‘the application’ of the principle of equal treatment. Furthermore, the relevant directives seek to ‘put into effect’71 in the Member States the principle of equal treatment. Therefore, EU equality legislation is not presented as a set of common standards for the protection of non-​economic values destined to facilitate the functioning of the internal market.72 Instead, as is argued throughout this book, EU legislation is introduced as a component of an ambitious project to transform societal habits: EU anti-​discrimination policy is not flanking the project of EU internal market-​making, but is a self-​standing policy designed to give flesh to a fundamental right across, as well as within, the Member States. The actual activation of the right to equal treatment is a pre-​condition to put the substance of the policy and its transformative/​societal function into motion.

2. The (still?) ugly duckling: the prohibition of nationality discrimination As pointed out earlier, the prohibition of nationality discrimination has long been unaffected by the ‘proceduralization’ process described in section A.1. Not only was there no comparable legislation but there was also a much less significant number of cases on the procedural dimension of the prohibition of nationality discrimination when compared in particular with sex equality.73 68  See also Racial Equality Directive (n 15) Article 7. See further Lisa Waddington and Mark Bell, ‘More Equal than Others: Distinguishing EU Equality Directives’ (2001) 38 CML Rev 587. 69  See Racial Equality Directive (n 15) Article 7(2). 70  ibid Article 13(2). 71  See eg Directive (EU) 2010/​41 (n 13) (adopted on the basis of Article 154(3) TFEU) Article 1(1). 72  See also Bruno de Witte, ‘Non-​Market Values in Internal Market Legislation’ in Niamh Nic Shuibhne (ed), Regulating the Internal Market (Edward Elgar 2006) 75; and Vasiliki Kosta, ‘Fundamental Rights in Internal Market Legislation’ (DPhil thesis, European University Institute 2013). 73  See eg Union nationale des entraîneurs et cadres techniques professionnels du football (Unectef ) v Georges Heylens and others [1987] ECLI:EU:C:1987:442; Concetta Sagulo, Gennaro Brenca and Addelmadjid Bakhouche [1977] ECLI:EU:C:1977:131; Gerhard Köbler v Republik Österreich [2003]

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This situation changed in April 2014 when the EU legislature adopted a new Directive on ‘measures facilitating the exercise of rights conferred on workers in the context of freedom of movement for workers’ (the ‘2014 Directive’, or ‘new’ or ‘Workers Directive’).74 This instrument is intended to enhance the enforcement of the rights of workers (with their families) to move and reside freely in the EU, in particular without being discriminated against on grounds of nationality. The Workers Directive was adopted on the basis of a remarkably rapid legislative process. It was published in the Official Journal within a year of being tabled by the European Commission.75 This unusual timescale may have been caused by a number of different elements. There was a sense of urgency created by the desire to reach a compromise on the text before the European election in spring 2014, and thereby to avoid discussions on the proposal being postponed. Such a need to adopt legislation may also have been fed by the pressing anti-​EU migrant tone in political discourses at the domestic level.76 But an important factor may simply have been the fact that the Directive is largely modelled on pre-​existing mechanisms of EU equality law, thus making its content less open to controversy. To what extent, then, do the provisions of this latest instrument relate to the common procedural law of EU equality policy? It will be argued that the new Directive largely replicates the common rules of EU equality policy (see section A.2.a). In that sense, it constitutes a significant step towards asserting the ‘transformative’ function of the prohibition of nationality discrimination (along with the other prongs of EU equality law or ‘mainstream EU equality law’)—​although several differences between the two prongs of EU equality law remain (see section A.2.b).

(a) ‘So the first shall be the last . . .’: the proceduralization of EU nationality discrimination policy Similarities in the wording of the new Directive and earlier equality directives are undeniable and the differences that exist are not expected to have major practical consequences, as will now be outlined. This section (section A.2.a) analyses the provisions of the 2014 Directive in the same order as that used to introduce the common procedural law of EU equality policy, and also directly quotes the key provisions for the reader’s information. ECLI:EU:C:2003:513. The scarcity of such cases may be precisely due to the fact that there were no legislative provisions helping the court to build along such lines, as in the area of EU sex equality law. 74  Directive (EU) 2014/​54 (Workers Directive) (n 21). 75  Commission (EU), ‘Proposal for a Directive on measures facilitating the exercise of rights conferred on workers in the context of freedom of movement for workers’ COM (2013) 236 final, 26 April 2013. 76  As reported, for instance, in Catherine Barnard, ‘Free Movement of Natural Persons’ in Catherine Barnard and Steve Peers (eds), European Union Law (OUP 2014) sections 2.1. and 2.2; European Commission, ‘European Report on the Free Movement of Workers in Europe in 2011–​2012’ (2013) 60; Commission (EU), ‘Study to analyse and assess the socio-​economic and environmental impact of possible EU initiatives in the Area of Freedom of Movement for Workers, in particular with regard to the enforcement of current EU provisions’ VC/​2011/​0476, 13 April 2012, 32–​33.

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(i) Access to judicial and/​or administrative procedures To start with, the Workers Directive contains a provision on ‘Defence of rights’ that is very similar to its equivalent(s) in the five equality directives and ensures access to judicial procedures.77 Yet, Article 3 of the new Directive is more elaborate: 1. Member States shall ensure that after possible recourse to other competent authorities including, where they deem it to be appropriate, conciliation procedures, judicial procedures, for the enforcement of obligations under Article 45 TFEU and under Articles 1 to 10 of Regulation (EU) No 492/​2011, are available to all Union workers and members of their family who consider that they have suffered or are suffering from unjustified restrictions and obstacles to their right to free movement or who consider themselves wronged by a failure to apply the principle of equal treatment to them, even after the relationship in which the restriction and obstacle or discrimination is alleged to have occurred has ended. 2. Member States shall ensure that associations, organisations, including the social partners, or other legal entities, which have, in accordance with the criteria laid down in their national law, practice or collective agreements, a legitimate interest in ensuring that this Directive is complied with, may engage, either on behalf of or in support of, Union workers and members of their family, with their approval, in any judicial and/​or administrative procedure provided for the enforcement of the rights referred to in Article 1. 3. Paragraph 2 shall apply without prejudice to other competences and collective rights of the social partners, employees’ and employers’ representatives, where applicable, including the right to take action on behalf of a collective interest, under national law or practice. 4. Paragraph 2 shall apply without prejudice to national rules of procedure concerning rep­ resentation and defence in court proceedings. 5. Paragraphs 1 and 2 of this Article shall apply without prejudice to national rules on time limits for enforcement of the rights referred to in Article 1. However, those national time-​ limits shall not render virtually impossible or excessively difficult the exercise of those rights.78

Along with the definition of persons wronged being more narrow than under the mainstream equality directives79 and the reference to time limits,80 the new Directive explicitly mentions the specific role of social partners in the employment sphere. Social partners should, for instance, be included among those legally entitled to act on behalf of or in support of private litigants. This could certainly have been an added value in the mainstream equality directives that relate to employment and are not so explicit on the matter. The relevant provision of the Workers Directive is 77  Mere access to non-​judicial procedures, such as administrative procedures, would thus not comply with the Directive. 78  Workers Directive (n 21) Article 3(1)–​(5). 79 cf Coleman (S Coleman v Attridge Law and Steve Law [2008] ECLI:EU:C:2008:415, paras 57–​63) on discrimination-​by-​association. Note, however, that in that case the Court did not look at the enforcement provisions but at the definition of discrimination itself. Although Directive 2014/​54 (n 21) Article 3(1) does not require access to judicial proceedings for all those being wronged, it does explicitly mention family members of workers; it may be that in practice this specification ensures a sufficiently broad personal scope of protection. 80  This aspect is more prescriptive than the other equality directives but it seems to merely codify the case law of the Court on time-​limits, eg Theresa Emmott v Minister for Social Welfare and Attorney General [1991] ECLI:EU:C:1991:333, paras 16–​17.

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also riddled with warnings against EU interference with domestic legal systems. On the one hand, the legislature wants to preserve the domestic definition of the competences and rights of social partners; a tone that is not to be considered without recalling the vivid debate on the right to take collective action following the Viking and Laval cases.81 On the other hand, Member States are wary of intrusions into their field of procedural rules on representation and defence in court proceedings, thereby possibly expressing caution on further debate about collective redress. (ii) Partial shift in the burden of proof In contrast, the Workers Directive is silent on the setting out of the burden of proof (unlike the mainstream equality directives). Although this constitutes a missed opportunity to provide clarity on the matter, it does not necessarily suggest that the actual test for breaches of the rules on the free movement of EU workers (and their families) is much different from the test for breaches of other prongs of EU equality law. In fact, for a long time the Court has adopted an approach based on whether the rule or behaviour challenged is capable of constituting an ‘obstacle’ to the worker’s (and his family’s) right to free movement.82 According to this ‘obstacles approach’,83 as soon as it is established that the act or practice may constitute a hindrance to free movement, it is for the defendant to establish the opposite. In essence, this ‘obstacles approach’ amounts to a shift in the burden of proof. The Workers Directive actually seems to incorporate the obstacles approach. It includes several references to the low threshold for creating a presumption of breach of free movement rules. For instance, Member States shall ensure that judicial procedures are available to ‘Union workers and members of their family who consider that they have suffered or are suffering from unjustified restrictions and obstacles to their right to free movement’.84 (iii) Victimization As part of the mainstream equality directives, the new Directive requires the introduction of a system for the protection of complainants against retaliation. The wording is almost identical to the corresponding articles in the other directives with the notably narrow definition of the notion of complainant, since only the worker will be protected against victimization (to the exclusion, for instance, of family members).85 (iv) Specialized bodies and their relationship to courts Building on the main procedural innovation of the common procedural law of EU equality policy, Member States are also now required to designate a body (or bodies)86 for the promotion, analysis, monitoring, and support of equal treatment 81  See, for instance, Catherine Barnard, ‘A Proportionate Response to Proportionality in the Field of Collective Action’ (2012) 2 EL Rev 117. 82  See eg Dieter Kraus v Land Baden-​Württemberg [1993] ECLI:EU:C:1993:125, para 32. 83  See further Gareth Davies, ‘Discrimination and Beyond in European Economic and Social Law’ (2011) 18 MJ 7. 84  Workers Directive (n 21) Article 3(1). 85  ibid Article 3(6). 86  Or a structure/​structures.

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and free movement rights of a worker and his or her family by virtue of Article 4 of the Workers Directive. We will return to such bodies in more detail in sections B and C. (v) Sanctions, penalties, compensation, and reparation As for the final component of the common procedural framework, the Workers Directive is once again almost silent.87 Although the case law of the Court is likely to partly fill this gap, this silence is to the detriment of clarity. It is also surprising that the legislature (and in particular the Member States) is so reluctant to adopt a provision on such matters while there are already prescriptive elements on this point in the latest equality directives. This illustrates an effort to combine relief with deterrence, as explained previously.

(b) A significant step towards the assertion of the ‘transformative’ function of the prohibition of nationality discrimination Although the parallel between the procedural rules on the (judicial) enforcement of the EU equality rules and those concerned with restrictions to EU ‘mobile’88 workers’ rights are striking, there is very little in the wording of Directive 2014/​ 54 to suggest that approximation of the regimes was intended—​let alone desirable. Instead, the reasons for the adoption of the new Directive seem more inward looking and relate to the observation that there remain significant obstacles to the free movement of workers in the EU. The absence of references to mainstream EU equality law may simply be due to the legal basis of the Directive, Article 46 TFEU, which relates to the free movement of workers (only). This should not prevent external observers from reflecting on the implications of the de facto approximation of the procedural rules for the enforcement of ‘mobile’ workers’ rights with those of mainstream EU equality law. In fact, the greatest added value of the new Directive may lie precisely in the ‘approximation’ of the tools for the enforcement of EU equal treatment rights, bringing along the protection against nationality discrimination. By strengthening the enforcement of the prohibition against nationality discrimination by means of vertical as well as horizontal litigation, the EU legislature makes an attempt at modifying the enforcement culture of this field of EU law and actually asserts the transformative function of the prohibition of nationality discrimination. The Workers Directive thus does no less than to confirm that the rules on the free movement of workers enshrined in the Treaty are intended to regulate horizontal relationships.89 The prohibition 87  Although see Workers Directive (n 21) Recital (15): ‘Member States are invited to examine the implementation of common principles for injunctive and compensatory collective redress mechanisms.’ 88  This contribution acknowledges the existence of a sophisticated case law of the Court on the notion of a ‘cross-​border requirement’ and does not expand on the matter. 89  See also Roman Angonese v Cassa di Risparmio di Bolzana—​Italy [2000] ECLI:EU:C:2000:296; and Denis Martin, ‘Comments on Angonese (Case C-​281/​90 98 of 6 June 2000), Graf (Case C-​190/​ 98 of 27 January 2000), Delège and Lehtonen (Cases C-​51/​96 and 176/​96 of 11 and 13 April 2000), Nazli (Case C-​340/​97 of 10 February 2000) and Kaba (Case C-​356/​98 of 11 April 2000)’ (2000) 2 EJML 431.

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of nationality discrimination is now treated as a tool that should be used to correct interpersonal inequalities. Legislative intervention at EU level, calling for the adoption of implementing measures, thereby brings the prohibition of nationality discrimination significantly closer to the transformative and human rights rationale that underlies the other grounds of discrimination. This is not to deny that significant differences continue to exist in the design of the provisions on mainstream EU equality law on the one hand, and in the Workers Directive on the other. First of all, the 2014 Directive perpetuates the assumption that the prohibition of nationality discrimination enshrined in EU law only protects EU citizens who are ‘mobile’, to the exclusion of third-​country nationals and ‘static’ EU citizens. Second, the Workers Directive confirms the fragmentation of the approach of EU legislation on the matter. By only seeking to better enforce the rights of mobile EU workers and their families, the initiative sheds light on the lack of protection of other categories of mobile EU citizens, such as non-​economic and self-​employed actors who may also suffer from nationality discrimination.90 Finally, and importantly, the objective of the 2014 Directive is to address obstacles to the free movement of workers and their families. This is to be done not only through the better enforcement of the prohibition of discrimination but also by tackling more ‘neutral’ obstacles to movement.91 These may include language diversity or administrative barriers to movement; for instance, owing to an enhanced obligation for the specialized bodies to act as a contact point, to exchange and disseminate information on free movement rules as well.92 This specificity of the role of specialized structures within the meaning of the 2014 Directive may not make it easy to merge them into bodies whose mandate is more focused on a classic approach to equal treatment. In that sense it is interesting to observe that the initial proposal by the Commission intended to limit the role of the specialized bodies to instances of nationality discrimination.93 Whether this is detrimental to the effectiveness of these bodies will depend heavily on domestic approaches to the implementation of the new Directive.

(c) Conclusion: the added value of legislative intervention for the enforcement of equal treatment The proceduralization of EU equality law is a process that results from a combination of judicial and legislative initiatives, but with significant influence from legal innovation through legislative law-​making. The rationale behind the development of a set of common procedural rules is intimately related to the far-​reaching objective of EU

90  See, however, Workers Directive (n 21) Article 7(2). 91  This is confirmed by the wording of Workers Directive (n 21) Article 4(1) and (2)(c) and (e). 92  See eg Workers Directive (n 21) Article 4(3) and (2)(e). See also Article 6(2) on the use of more than one official language of the institutions of the Union. 93  Commission (EU), ‘Proposal for a Directive on measures facilitating the exercise of rights conferred on workers in the context of freedom of movement for workers’ COM (2013) 236 final, 26 April 2013, Article 5.

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equality policy to come closer to making the fundamental right to equal treatment a reality across, as well as within, the Member State. The more recent proceduralization of the legal regime on the prohibition of nationality discrimination against mobile EU workers has been primarily driven by a distinct, internal market-​making dynamic. However, the de facto alignment with the procedural rules of the other prongs of EU equality law allows for a strengthening of the fundamental rights rationale and the transformative function of the prohibition of nationality discrimination. Nationality discrimination must now be forcefully tackled through the same types of tools as those available to combat discrimination on grounds of sex, race/​ethnic origin, religion/​belief, sexual orientation, disability, and age. And the nature of EU intervention in this field must be understood as intended to address public as well as private nationality bias, despite long-​standing uncertainties on the matter.94 With this new instrument in hand, the current challenge is twofold. First, further efforts towards alignment would be welcome. This could bring the procedural rules on the prohibition of nationality discrimination against ‘mobile’ EU workers one step closer to the wording of the equality directives—​on the burden of proof and sanctions/​compensation, for instance. Furthermore, greater approximation with the other prongs of EU equality law would also imply the proceduralization of the prohibition of nationality discrimination against, for example, ‘mobile’ non-​ economic EU citizens.95 It may also be recalled that the Framework Employment Directive still does not have provisions on equality bodies. Second, future reflections on proceduralization are likely to include debates on the role of collective action and redress mechanisms so as to bridge the gap between private and public enforcement mechanisms.96 This point is explored further in section B. Importantly, despite the existence of a common procedural law in EU equality law, it should be noted that not all equal treatment clauses enshrined in EU law are covered by the said common framework. Isolated equal treatment clauses in the field of EU employment and migration law, as discussed in Chapter 4, are not accompanied by such a procedural framework. The practical consequences that this may have on access to justice at the domestic level are particularly well evidenced by Passalacqua. She illustrates how the existence of procedural rules facilitating access to justice in the context of the implementation of EU anti-​discrimination law contrasts with the lack of such rules in relation to equal treatment clauses enshrined in EU migration law. For instance, Italian law provides that organizations may not 94 See Roman Angonese v Cassa di Risparmio di Bolzana—​Italy [2000] ECLI:EU:C:2000:296; Martin (n 89). 95  Interesting procedural provisions have recently been adopted in relation to posted workers in the context of the free movement of services. Unlike the Workers Directive, this new instrument is tailored to the specific and complex situation of posted workers: Directive (EU) 2014/​67 of 15 May 2014 on the enforcement of Directive 96/​71 concerning the posting of workers in the framework of the provision of services and amending Regulation 1024/​2012 on administrative cooperation through the Internal Market Information System [2014] OJ L159/​11; see in particular Article 11. 96  See further Mark Dawson and Elise Muir, ‘Individual, Institutional and Collective Vigilance in Protecting Fundamental Rights in the EU: Lessons from the Roma’ (2011) 48 CML Rev 751; and see section A.1.b.i.

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litigate nationality discrimination outside the workplace (as covered to some extent by Italian migration law), whereas they can litigate race/​ethnic origin discrimination as a result of the implementation of the procedural rules enshrined in EU anti-​ discrimination law.97 This has led to uncertainties as to the standing of organizations in cases concerning nationality discrimination.

3. The ‘hybridization’ of EU equality law for the purpose of fundamental rights policy-​making The proceduralization of EU equality law, as just described, is geared towards enhancing access to court for the enforcement of the relevant legal norms. In that sense it illustrates new and sophisticated mechanisms98 developed at the supranational level to strengthen a fairly classic vision of fundamental rights as highly ranked, precise, and enforceable norms. EU intervention, however, also places emphasis on complementary approaches to fundamental rights which are less normative and instead focused on ‘deliberative processes’.99 From such a perspective concerned with ‘means’ rather than ‘ends’ to enhance the protection of fundamental rights, as de Schutter puts it, bodies other than courts are the actors better suited to tackle the multipolar nature of EU fundamental rights.100 In the specific context of EU equality law, de Búrca has observed that EU intervention in matters related to equal treatment after the entry into force of the Amsterdam Treaty is indeed drifting towards a more reflexive policy.101 The EU structured and supported the creation of networks, civil society organizations, and fundamental rights bodies at the national as well as European levels that are progressively and increasingly exchanging practices in some ‘form of dynamic learning process’,102 thereby working towards the creation of a ‘human rights culture’. These features depart from those of a model based on the hierarchy of legal norms, with their precision and applicability, as well as vertical and court-​based enforcement. As de Búrca notes, the weaknesses of such a classic understanding of human rights protection may actually be seen as strengths when examined through the lens of 97 Virginia Passalacqua, ‘Advancing EU Equality Law in Italy:  Between Unsystematic Implementation and Decentralized Enforcement’ in Elise Muir, Claire Kilpatrick, Jeffrey Miller, and Bruno de Witte (eds), ‘How EU Law Shapes Opportunities for Preliminary References on Fundamental Rights: Discrimination, Data Protection and Asylum’ (2017) EUI Working Paper Law 2017/​17, 82–​83. 98  Note, for instance, that there are hardly any equivalent procedural provisions in EU social and employment legislation to date, although this may change with the legislative initiatives put forward by the European Commission in the context of the European Pillar of Social Rights, eg ‘Proposal for a Directive on transparent and predictable working conditions in the European Union’ COM (2017) 797 final, Ch V. 99  Olivier de Schutter, ‘Fundamental Rights and the Transformation of Governance in the European Union’ (2007) 9 CYELS 133 and 174. 100  Paraphrasing ibid 133 and 134–​35. 101  de Búrca (n 24) (2006) 98–​99; Gráinne de Búrca, ‘Stumbling into Experimentalism: The EU Anti-​Discrimination Regime’ in Charles F Sabel and Jonathan Zeitlin (eds), Experimentalist Governance in the European Union (OUP 2010) 215–​35; Gráinne de Búrca, ‘Human Rights Experimentalism’ (2017) NYU Public Law and Legal Theory Research Paper Series Working Paper No 17/​06. 102  de Búrca (n 101) (2010) 228.

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human rights experimentalism, leading, in practice, to a positive impact on human rights.103 In that sense, both trends can be understood as complementary and this ‘hybridization’104 of the relevant forms of governance flowing either from the anti-​ discrimination Directives themselves (see section A.3.a) or from other EU law sources (see section A.3.b) is to be welcomed.

(a) Hybridization within the anti-​discrimination directives Once again, the framework for EU intervention on matters of equal treatment—​ including the prohibition of nationality discrimination after 2014—​is overall fairly consistent despite apparent fragmentation. Several of the procedural aspects identified earlier stretch beyond the traditional realm of litigation. To start with, one can identify a discrete attempt at encouraging alternative dispute resolution mechanisms.105 The provisions on access to judicial and/​or administrative procedures contained in the anti-​ discrimination directives mention the possibility for the Member States to create conciliation procedures to give effect to the obligations contained therein.106 The Workers Directive specifies that it is without prejudice to the role of social partners in solving disputes.107 Equality bodies are also expected to provide independent assistance to victims in pursuing their ‘complaints about discrimination’108 so that this may be in the context of litigation or through alternative channels, as many national equality bodies indeed do. The Workers Directive further requires the national watchdogs to act as bridges with existing mechanisms of alternative dispute resolution, such as SOLVIT.109 Other provisions of the anti-​discrimination directives form part of an attempt to tackle societal malpractices upstream, and to actually avoid the emergence of disputes. Beside a general clause on the ‘prevention of discrimination’ in certain directives, specific mechanisms are also provided.110 Equality bodies are expected to promote equal treatment as well as to analyse and monitor the situation in the Member States. This is done through conducting surveys and publishing reports. The most recent directives require the equality bodies to act as contact points vis-​à-​ vis equivalent entities in other Member States.111 Member States are also expected to promote dialogue with non-​governmental organizations (NGOs)112 or the relevant 103  de Búrca (n 101) (2017) 17/​06. 104  de Búrca (n 24) (2006) 98–​99. 105  See also de Búrca (n 101) (2010) 225. 106  Racial Equality Directive (n 15) Article 7(1); Council Directive (EC) 2000/​78 (n 16) Article 9(1); Directive (EC) 2006/​54 (n 11) Article 17(1); Council Directive (EC) 2004/​113 (n 14) Article 8(1); Directive (EU) 2010/​41 (n 13) Article 9(1); Directive (EU) 2014/​54 (n 21) Article 3(1). 107  Directive (EU) 2014/​54 (n 21) Article 3(3). 108  Racial Equality Directive (n 15) Article 13(2); Directive (EC) 2006/​54 (n 11) Article 20(2)(a); Directive (EC) 2004/​113 (n 14) Article 12(2)(a); Directive (EU) 2010/​41 (n 13) Article 11(2)(a). The wording of the Workers Directive is slightly different but also broad, as equality bodies are expected to provide ‘independent legal and/​or other assistance’ (Article 4(2)(a)). 109  SOLVIT is a service provided by the national administration in each EU country in order to address, speedily and out of court, breaches of EU law by public authorities in another EU country. 110  See eg Directive (EC) 2006/​54 (n 11) Article 26. 111  See eg Workers Directive (n 21) Article 4(2)(b); Directive (EU) 2010/​41 (n 13) Article 11(2)(d); Directive (EC) 2006/​54 (n 11) Article 20(2)(d). 112  See eg Workers Directive (n 21) Article 5.

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stakeholders,113 to disseminate information about the implementing measures of the directives114 and to actively take into account the objective of equality between men and women when formulating and implementing rules and policies falling within the scope of EU sex equality law.115 The iterative nature of the process resulting from this work on societal infrastructure is best illustrated by the reporting duties of the Commission (to the European Parliament, the Council, and—​in certain instruments—​the European Economic and Social Committee) on the implementation of a directive.116 It has been observed that this anti-​discrimination regime is characterized by a relatively low level of involvement of industry actors.117 Social partners are not absent from the directives concerned with employment:118 Member States are expected to promote social dialogue and encourage collective bargaining with a view to fostering equal treatment;119 employers are to be encouraged to promote equal treatment between men and women at the workplace;120 the implementation of the said directives may also be mediated through collective bargaining.121 Yet, the mechanisms set out in the field of anti-​discrimination are largely centred on NGOs and independent equality bodies. Comparatively less attention is indeed devoted to social partners, although the prohibition of discrimination is primarily relevant at the workplace. This may be because social partners have less of an interest than industry actors in other fields in developing equality norms.122 It may also be because these actors are already assumed to be present and thus the EU legislature gives them less attention.123 In any case, and we will return to this later, EU anti-​discrimination clearly places new types of collective actors to the fore.

(b) Hybridization as part of a broader policy impetus Several elements outside the scope of the anti-​discrimination directives contribute to the hybridization of EU equality governance. The adoption of directives from 2000 onwards was accompanied by a broader range of initiatives encapsulated in

113  See eg Council (EC) Directive 2004/​113 (n 14) Article 11. 114  See eg Workers Directive (n 21) Article 6(1). 115  See eg Directive (EU) 2010/​41 (n 13) Article 12; Directive (EC) 2006/​54 (n 11) Article 29. See also the mainstreaming duty on gender in the context of reporting on the implementation of the directives concerning other grounds of discrimination: eg Council Directive (EC) 2000/​78 (n 16) Article 19(2) and Racial Equality Directive (n 15) Article 17(2). 116  See eg Workers Directive (n 21) Article 9. This reporting duty must take into account the views of stakeholders in accordance with certain provisions such as Directive (EU) 2010/​41 (n 13) Article 15(2) or Directive (EC) 2000/​78 (n 16) Article 19(2). 117  de Búrca (n 101) ( 2010) 222. 118  On the role of social partners in supporting litigation, see also section A.2.a.i. 119  See eg Directive (EC) 2000/​78 (n 16) Article 13. 120  See eg Directive (EC) 2006/​54 (n 11) Article 21. 121  See eg ibid Article 33. 122  de Búrca (n 101) ( 2010) 222. 123  Álvaro Oliveira, ‘What Difference Does EU Law Make? The Added Value of EU Equality Directives on Access to Justice for Collective Actors’ in Elise Muir, Claire Kilpatrick, Jeffrey Miller, and Bruno de Witte (eds), ‘How EU Law Shapes Opportunities for Preliminary References on Fundamental Rights: Discrimination, Data Protection and Asylum’ (2017) EUI Working Paper Law 2017/​17, 11.

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the ‘Community action programme to combat discrimination’.124 The action programme then became the ‘Programme for Employment and Social Solidarity’125 from 2006 to 2013, and is now known as the ‘Rights, Equality and Citizenship’ programme.126 Its general objective is to promote the ‘development of an area where equality and the rights of persons as enshrined in the TEU, in the TFEU, in the Charter and in the international human rights conventions to which the Union has acceded, are promoted, protected and effectively implemented’.127 This is to be pursued, inter alia, through awareness raising, enhancing knowledge of the relevant policies as well as mutual trust among stakeholders including in cross-​border settings, and improving the understanding of obstacles to the exercise of the relevant rights and principles.128 The EU has thereby engaged in ‘policy-​formation’.129 To that effect, the EU has been using a broad range of tools including a significant amount of funding. Although funding in matters of equal treatment may be traced back to the early days of the Treaty of Rome which created a European Social Fund, the scope of EU intervention as well as the range of tools used have been considerably broadened in the post-​Amsterdam era. The European Commission itself provides an overview of the wide range of instruments that have been developed to tackle discrimination.130 To start with, the EU has supported the creation of four transnational networks: the High Level Group on Non-​Discrimination, Equality and Diversity, composed of governmental agents and intended to steer cooperation in the field; the Network of socio-​economic experts, intended to interact with the High Level Group and provide expertise; the European Network of Equality Bodies (EQUINET), in charge of promoting equality and combating discrimination;131 and the European Network of Legal Experts in the field of gender equality and non-​discrimination,132 monitoring implementation and legal developments at national level. A broader range of actors less directly connected to the Commission also receive support to promote awareness and develop tools to combat discrimination. Bodies such as the European Fundamental Rights Agency and the more recently created European Gender Institute—​to which we will return later133—​are responsible for 124  Council Decision (EC) 2000/​750 of 27 November 2000 establishing a Community action programme to combat discrimination (2001 to 2006) [2000] OJ L303/​23. 125  Decision (EC) 1672/​2006 of 24 October 2006 establishing a Community Programme for Employment and Social Solidarity—​Progress [2006] OJ L315/​1. 126 Regulation (EU) 1381/​ 2013 of 17 December 2013 establishing a Rights, Equality and Citizenship Programme for the period 2014 to 2020 [2013] OJ L354/​62. See further the European Commission Work Programme 2017 in Annex to Commission (EU), ‘Implementing Decision concerning the adoption of the work programme for 2017 and the financing for the implementation of the Rights, Equality and Citizenship Programme’ C (2017) 1316 final, 1 March 2017. 127  Regulation (EU) 1381/​2013 (n 126) Article 3. 128  ibid Article 4(2). 129  von Bogdandy (n 23) 1310. 130  European Commission, ‘Tackling discrimination’, available at (accessed 1 February 2018). 131  Equinet European Network of Equality Bodies, available at (accessed 1 February 2018). 132  European Network of Legal Experts in Gender Equality and Non-​discrimination, available at (accessed 1 February 2018). 133  See section C.1.

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data gathering and processing in matters that may relate to anti-​discrimination. The Commission further supports several ‘umbrella NGO networks’ (such as the European Roma Information Office, the European Disability Forum, and the European Network Against Racism) intended to raise awareness. It has also been financing training programmes across the EU, as well as encouraging platforms for exchanges on diversity charters, which are voluntary initiatives aimed at encouraging companies to implement and develop diversity policies. Liaising with businesses and the workplace, the Commission has also developed efforts geared towards trade unions, such as the promotion of social dialogue on relevant matters. Certain forms of EU intervention are specifically aimed at vulnerable groups, as illustrated by the Council ‘EU Framework for National Roma Integration Strategies up to 2020’,134 which combines reliance on funds and the exchange of good practices at European level. The Commission stresses that networks as well as the exchange of best practice are key aspects of its strategy towards a better application of EU law.135 The point made by de Búrca though, is that these same elements are not only constitutive of an enforcement strategy, they also serve a more ambitious and transformative agenda. They pave the way for the creation of a ‘human rights culture’ through the involvement of civil society actors. Although key players continue to adhere to conventional approaches to human rights law and do not seem aware that they are progressively engaging in reflexive policy-​making, in preliminary research on how this EU governance regime is operating de Búrca argues that EU anti-​discrimination law is indeed ‘stumbling into experimentalism’.136

(c) Conclusion: EU legislative intervention contributing to a methodological shift The observation that cuts across both a classic vision of fundamental rights and a more reflexive one is that EU legislative intervention has purportedly sought to create, consolidate, and support collective actors at domestic levels in the form of either private or interest groups such as NGOs or more institutionalized entities such as equality bodies.137 These entities have been understood as constituting the cornerstone to the efficiency of the EU’s attempt to transform interpersonal relationships by eliminating discrimination. In so far as EU equality law can be treated as the first fundamental rights policy of the EU, an assessment of the role played by such collective actors in the actual implementation of the policy can be useful for 134  Council of the European Union, ‘An EU Framework for National Roma Integration Strategies up to 2020—​Council Conclusions’ (24 May 2011). 135  Commission (EU), ‘EU law:  Better results through better application’ (Communication) C (2016) 8600 [2017] OJ C18/​02, section 2. 136  de Búrca (n 101) (2010) 215. 137  On the importance accorded to such stakeholders in latest international human right treaties, see de Búrca (n 101) (2017) Paper No 17/​06, 8–​9 as well as 12 et seq. On the role of collective actors in anti-​racism strategies, see also Mark Bell, Anti-​Discrimination Law and the European Union (OUP 2002)  84–​87.

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a critical analysis of the added value of EU governance in matters of fundamental rights.

B.  Anti-​Discrimination Law as a Laboratory for EU Governance of Fundamental Rights at the Domestic Level: Collective Actors as Bridging Devices As explained previously, the most ancient set of procedural rules for the enforcement of EU fundamental rights can be found in EU equality legislation. It may be recalled that the anti-​discrimination directives of 2000 that introduced most of these rules (eg on the creation of equality bodies or access to court for private collective actors) could be seen as accompanying the development of EU migration policy, as well as a response to the accession to power in Austria of Jörg Haider, whose party was perceived as a possible threat to EU values. The said directives were therefore intended to provide genuine protection against xenophobia and extremism and were deemed to be ‘the best car in town’;138 they provided more detailed and effective protection than earlier equality law instruments. The governance of EU equality law thus benefits from the dynamics and strengths of the advanced form of supranational integration that EU law provides while promoting a selected fundamental right domestically. Almost two decades after the adoption of the first legislative instruments and initiatives designed to engage in this specific form of fundamental rights policy-​making, EU equality law can be treated as a laboratory for the governance of fundamental rights in an integrated legal order. What is the role of EU law in promoting a fundamental right at the domestic level? How does the system operate in practice? It would be beyond the scope of this book to deal exhaustively with these ambitious questions.139 Nevertheless, it is possible to sketch out preliminary directions for further research. Despite criticisms of the fact that EU anti-​discrimination law, as designed in the post-​Amsterdam era, remains overly centred on individual litigation,140 collective actors defined in the broad sense, who are understood to cover both private (eg civil society organizations) and public actors (independent organizations such as equality bodies)—​as introduced in the previous section141—​have been given an important role in the relevant governance system. These collective actors created, structured, or supported by EU law are intended to act as bridges between the EU and domestic legal orders, as well as between a conventional, vertical approach to human rights focused on enforcement and a more reflexive process concerned with mutual learning. They thus constitute a useful starting point for an enquiry into the added value of

138  Oliveira (n 123) 9. 139  See also the recent contribution by Mark Dawson, who usefully reflects on the added value of EU intervention on matters of fundamental rights protection: Dawson (n 1). 140  Bell (n 137) 49. 141  See section A.

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EU intervention in domestic spheres on matters of the protection of fundamental rights. In a recent study conducted together with Kilpatrick, Miller, and de Witte the effects of procedural provisions were explored—​specifically those inserted in EU anti-​discrimination legislation to facilitate access to court for collective actors acting in support or on behalf of victims.142 This last set of rules may indeed shape legal opportunity structures for preliminary references. It was therefore used as a test case to look at the interplay between domestic and EU spheres in matters of enforcement of the fundamental right to equal treatment.143 It should be stressed that for the purpose of this exercise there was no attempt at assessing whether a preliminary ruling by the Court has had a positive or a negative outcome. Instead, the very use of the preliminary ruling procedure was deemed to be of interest as it shows reliance on the multilayered institutional set-​up provided by EU law. What clearly emerges from this study, despite its initial grounding in a conventional approach to fundamental rights through its focus on litigation, is the importance of EU anti-​discrimination law in shaping infrastructure that stimulates societal debate on equality in domestic spheres. Collective actors and equality bodies in particular, as empowered by EU law and adjusted to the specificities of each national context, act as vectors conveying new legal concepts domestically and in turn seek to influence the definition of such concepts at the European level. The role played by collective actors naturally differs depending on the Member State and type of collective actors. Yet, one can identify a number of reasons and factors allowing collective actors to be understood as central to EU governance of fundamental rights based on the example of equality law. To start with, the reluctance of certain national legal systems towards the import of EU equality concepts has constituted a significant hindrance to the proper domestication of EU equality (see section B.1). As a consequence, the existence of independent collective actors, equipped with tools to challenge such reluctance at a local level is particularly important (see section B.2), as much as their embedding in a broader range of governance tools (see section B.3). As will be illustrated, infrastructures created or consolidated at the domestic level under the influence of EU law not only play an important role in domestic spheres; they may also engage with the definition of concepts at an EU level (see section B.4). These observations are useful to keep in mind when observing the development of similar tools in other areas of EU fundamental rights law (see section B.5). 142  Elise Muir, Claire Kilpatrick, Jeffrey Miller, and Bruno de Witte (eds), ‘How EU Law Shapes Opportunities for Preliminary References on Fundamental Rights: Discrimination, Data Protection and Asylum’ (2017) EUI Working Paper Law 2017/​17. The following developments in this section are largely based on preliminary conclusions that I published as part of that study with permission from OUP (at 113–​28). 143  See also Claire Kilpatrick, ‘Gender Equality: A Fundamental Dialogue’ in Silvana Sciarra (ed), Labour Law in the Courts: National Judges and the ECJ (Hart 2001) 80; and Chris Docksey, ‘The Principle of Equality between Women and Men as a Fundamental Right under Community Law’ (1991) 20 ILJ 258, 280.

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1. Interdependency between the reception of EU legal concepts and their enforcement at the domestic level In a number of Member States, such as France, Germany, Denmark,144 the Czech Republic,145 and Greece,146 the substance of equality law as defined at the EU level has triggered strong resistance domestically. This is a natural consequence of the fact that EU anti-​discrimination law can be described as an example of ‘direct legal transplantation’.147 According to Latraverse, for instance, the European anti-​ discrimination legal framework is perceived by French political and legal actors as: . . . the superfluous importation in the French legal system of an Anglo-​Saxon political and legal approach which conflicts with the inner logic of French civil law, the theory of equality and paramount legal principles such as the universal application of the rule and the refusal to recognize minorities, that anchor the French conception of public good.148

In Germany, another important example, the well-​known reluctance to implement the anti-​discrimination directives of 2000 arose from a combination of factors. German economic actors predicted ‘a flood of litigation by rejected job applicants and/​or abuse of the possibilities to litigate’.149 As Mathias Möschel recalls, an important stream in academia feared that anti-​discrimination legislation would unduly restrict the (constitutional) principle of private autonomy and contractual freedom. Furthermore, there was a concern that such legislation might lead to high damages awards, as in the Anglo-Saxon nations. Several years after the expiry of the implementation period of the equality directives, the depth of this resistance ought not to be underestimated.150 In the French context, although the implementation of the EU directives has not actually been minimalist, a variety of actors are reported by the Director of the 144  Angelina Atanasova and Jeffrey Miller, ‘Collective Actors and EU Anti-​Discrimination Law in Denmark’ in Elise Muir, Claire Kilpatrick, Jeffrey Miller, and Bruno de Witte (eds), ‘How EU Law Shapes Opportunities for Preliminary References on Fundamental Rights:  Discrimination, Data Protection and Asylum’ (2017) EUI Working Paper Law 2017/​17, 46–​47. 145  eg Barbara Havelková, Gender Equality in Law: Uncovering the Legacies of Czech State Socialism (Hart, 2017) 229–​37. 146  eg Natalie Alkiviadou, ‘A Critical Assessment of the Impact of the 2000 Equality Directives on Greece’ (2017) 17(4) International Journal of Discrimination and the Law 220. 147  Bob Hepple, ‘Race and Law in Fortress Europe’ (2004) 67(1) MLR 3. 148  Sophie Latraverse, ‘The Litigation of Anti-​Discrimination Cases in France by Collective Actors: A Selective Mobilization Hindered by Tradition’ in Elise Muir, Claire Kilpatrick, Jeffrey Miller, and Bruno de Witte (eds), ‘How EU Law Shapes Opportunities for Preliminary References on Fundamental Rights: Discrimination, Data Protection and Asylum’ (2017) EUI Working Paper Law 2017/​17, 55; see also Marie Mercat-​Bruns, Discrimination at Work: Comparing European, French, and American Law (University of California Press 2016) 38–​39; and Marie Mercat-​Bruns and Jeremy Perelman, ‘Les juridictions et les instances publiques dans la mise en œuvre du principe de non-​discrimination: perspectives pluridisciplinaires et comparées’ (2016) Ecole de droit de Sciences Po, Juin 2016, ‘Note de synthèse’, 10. 149  Mathias Möschel, ‘Litigating Anti-​Discrimination Cases in Germany: What Role for Collective Actors?’ in Elise Muir, Claire Kilpatrick, Jeffrey Miller, and Bruno de Witte (eds), ‘How EU Law Shapes Opportunities for Preliminary References on Fundamental Rights: Discrimination, Data Protection and Asylum’ (2017) EUI Working Paper Law 2017/​17, ​67. 150  For an analysis of the situation in the Czech Republic, see also Havelkova (n 145) 268–​73; and for Greece, see Alkiviadou (n 146) 225 et seq.

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Secretariat General of the French Equality Body, Latraverse, to be hindering the effectiveness of anti-​discrimination law on grounds of principle.151 According to Latraverse: Ever since 2000, the European pressure on legal action as the means chosen to impose a specific approach to the analysis and agenda on the fight against discrimination is perceived by most political forces as a domain where France must fight against European politics.152

Latraverse adds that many jurists, judges, political actors, and trade unions consider discrimination law to be an instrument that allows one to use the courts to circumvent French democratic institutions.153 In practice, lawyers and judges avoid anti-​discrimination law and prefer to frame their discussions outside its scope. And even when these actors do make use of equality law, they actually limit their reasoning to an application of the traditional French legal theory of ‘Equality’. Trade unions, important actors in the fight against discrimination in the workplace, largely refuse to be involved in anti-​discrimination litigation. As Latraverse further reports, the same unions have also lobbied to preserve their exclusive right to initiate class actions in relation to the workplace.154 As a consequence, these anti-​discrimination law sceptics have almost fully prevented any other interested organizations from representing claimants in class actions relating to discrimination in employment. As for NGOs, they do not litigate much on the basis of anti-​ discrimination law.155 For instance, anti-​racist NGOs are present mostly before criminal courts, while NGOs that are active in defending the rights of migrants or Roma are used to relying on the equal treatment principle enshrined in the ECHR rather than on the basis of anti-​discrimination law. Similarly, on the German side, and to continue with the selected examples, measures implementing the EU directives were framed so narrowly, as a result of the reluctance discussed earlier in this section, that they triggered doubts as to whether this was the correct implementation of EU anti-​discrimination directives. Such a restrictive legal framework, which also affects the rules on standing for collective actors, has had an impact on the limited role that collective actors have played in using or directly influencing the interpretation of EU law via preliminary reference procedures, according to Moschël.156

151  The French Equality Body has (co-​)mandated several interdisciplinary research projects that largely corroborate the analysis put forward by Latraverse: Mercat-​Bruns and Perelman (n 148); Philippe Icard and Yan Laidie (eds), ‘Le principe de non-​discrimination: l’analyse des discours’, CREDESPO—​ Université de Bourgogne, Juin 2016; Tatiana Gründler and Jean Marc Thouvenin, ‘La lutte contre les discriminations à l’épreuve de son effectivité’, CEDIN and Fédération des Unités de Recherche en Droit, Juin 2016. 152  Latraverse (n 148) 56. 153  Reflecting along similar lines, see also Mercat-​Bruns (n 148) 37–​38; and see further the interdisciplinary study by Gründler and Thouvenin (n 151). 154  Latraverse (n 148) 58–​57. 155  ibid  62–​64. 156  Möschel (n 149) 72–​74.

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2. Infrastructure for change: the central role of collective actors at the domestic level Precisely because EU anti-​discrimination law may be perceived as a foreign tool at the domestic level, it is interesting to recall where relevant legal provisions have their roots. There is very little doubt that engaged jurists from civil society have had a significant impact in introducing change in fundamental rights governance at the EU as well as the domestic level in some Member States. These jurists pushed for the adoption of new mechanisms—​therefore not strongly anchored in domestic systems—​at both levels. For instance, the origins of the EU rules on standing for collective actors are to be found in a proposal from 1993 by a network of NGOs and independent experts (the ‘Starting Line Group’) subsequently supported by the European Parliament.157 This is thus part of the important role of civil society movements from the 1990s onwards in lobbying in the run up to the Amsterdam Treaty and then the adoption of key anti-​discrimination directives.158 At the domestic level, Farkas notes that although central and eastern European Member States were not involved in the adoption of the EU directives, many were among the first to transpose them prior to accession, and domestic law actually went beyond EU law requirements.159 In that regard, members of NGOs engaged with the Council of Europe and EU integration processes played a central role. These examples illustrate the role of civil society actors in ‘pushing from outside’160 to shape EU law and its transposition at the domestic level. Yet, and importantly, the creation of infrastructure at the domestic level under the umbrella of EU law is also unquestionably capable of promoting the emergence of a human rights culture from within—​ie both within EU law and at the domestic level. The importation of new concepts, through sophisticated structures at domestic level, is indeed capable of generating a process of progressive change even where the domestic terrain is particularly hostile. Certain EU equality bodies at the domestic level have played a particularly important role in that regard and have illustrated the ability of such bodies to act as ‘institutions for social change’.161 This is particularly visible in Member States where the powers granted to equality bodies went beyond the requirements of the anti-​discrimination directives by granting them access to court. For instance, equality bodies are playing a central role

157  Hepple (n 147). 158  Farkas (n 47) 29. 159  Lilla Farkas, ‘NGO and Equality Body Enforcement of EU Anti-​Discrimination Law: Bulgarian Roma and the Electricity Sector’ in Elise Muir, Claire Kilpatrick, Jeffrey Miller, and Bruno de Witte (eds), ‘How EU Law Shapes Opportunities for Preliminary References on Fundamental Rights: Discrimination, Data Protection and Asylum’ (2017) EUI Working Paper Law 2017/​17, 36. 160  Expression borrowed from de Búrca (n 101) (2010) 222. 161  Niall Crowley, ‘Merging Mandates of Equality Bodies and National Human Rights Institutions—​ a Growing Trend’ (2016) 2 European Anti-​Discrimination Law Review 38.

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in enforcing the Racial Equality Directive. Such bodies are indeed quite strongly present in relevant procedures before the Court of Justice. In the Bulgarian context, the implementation of the said Directive has been an essential precondition for legal mobilization, as the problems of racial discrimination in access to electricity at hand in Belov162 as well as CHEZ163—​two cases on race equality brought before the Court—​have existed since 1998, but had been subject to no earlier legal challenges.164 Even beyond the scope of the Racial Equality Directive, in certain equality cases reaching the Court, litigation was made possible almost exclusively owing to mechanisms significantly shaped by EU law. In cases emerging from Belgium, such as Feryn,165 Rosselle,166 or Achbita,167 the involvement of equality bodies was a precondition to litigation either because no clear victim had been identified or because actual victims would not have had sufficient financial means to carry the proceedings.168 Besides these remarkable (though limited) examples of public interest litigation,169 equality bodies also perform crucial background work with a view to ‘injecting’ legal change into domestic legal systems. For instance, the French equality body has targeted its strategy specifically towards developing a ‘new legal culture’.170 To that effect, the equality body informs judges in the context of litigation in its capacity as amicus curiae and supports the importing of new concepts specific to anti-​discrimination law, such as the partial shift of the burden of proof (as well as the necessary evidence and concept of ‘the right to have access to evidence’), and the concept of indirect discrimination.171 The equality body further influences the academic curricula of universities and deploys training programmes for key stakeholders.172

162  Valeri Hariev Belov v CHEZ Elektro Balgaria AD and others [2013] ECLI:EU:C:2013:48. 163  ‘CHEZ Razpredelenie Bulgaria’ AD v Komisia za zashtita ot diskriminatsia [2015] ECLI:EU:C:2015:480. 164  Farkas (n 159) 41–​42. 165  Centrum voor Gelijkheid van Kansen en voor Racismebestrijding v Firma Feryn NV [2008] ECLI:EU:C:2008:397. 166  Charlotte Rosselle v Institut national d’assurance maladie-​invalidité (INAMI) and Union nationale des mutualités libres (UNM) [2015] ECLI:EU:C:2015:339. 167  Samira Achbita and Centrum voor Gelijkheid van Kansen en voor Racismebestrijding v G4S Secure Solutions NV [2017] ECLI:EU:C:2017:203. 168  Elise Muir and Sarah Kolf, ‘Belgian Equality Bodies Reaching Out to the ECJ: EU Procedural Law as a Catalyst’ in Elise Muir, Claire Kilpatrick, Jeffrey Miller, and Bruno de Witte (eds), ‘How EU Law Shapes Opportunities for Preliminary References on Fundamental Rights: Discrimination, Data Protection and Asylum’ (2017) EUI Working Paper Law 2017/​17, 24–​26. 169  Further reflecting on the concept of ‘actio popularis’ in EU anti-​discrimination law, see Farkas (n 47) 35–​37; and elaborating on possible future developments, see Benedi Lahuerta (n 47). 170  Acknowledging the particularly dynamic role of the French Equality Body in the context of a broad interdisciplinary investigation, see Mercat-​Bruns and Perelman (n 148) ‘Note de synthèse’, 9–​10 as well as the report itself, eg at 32, 136, 166. 171  Sophie Latraverse (n 148) 61–​62. 172 ibid 62. For further recommendations in that direction, see Gründler and Thouvenin (n 151) ‘Note de synthèse’, 8–​9.

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3. Complementary tools of EU fundamental rights governance: ‘hybridization’ in action As this last example in section B.2 illustrates, a fundamental rights policy ought to be based on a multiplicity of factors.173 In that sense, the coexistence of public (ie equality bodies) and private (NGOs in this context) collective actors allows diversity in the type of entities and powers available to counter discriminatory practices.174 EU intervention may support different types of collective actors so as to have an impact on the diversity of factors at play in the construction of litigation. There exist multiple examples of the complementarities between several categories of collective actors encouraged by EU law to engage in litigation.175 For instance, Belgian NGOs do not litigate much in the field of anti-​discrimination although their standing to do so has been enlarged through the implementation of the relevant EU directives; these NGOs actually refer to the more resourceful equality bodies who themselves engage in litigation.176 Similarly, the French Hay177 case, which led to a preliminary ruling of the Court, was initially brought by a claimant who was himself a union representative and president of an NGO supporting gay rights, and the equality body got involved by presenting observations in the course of judicial proceedings at the domestic level.178 Or again, the Bulgarian preliminary ruling request in CHEZ179 was started by an individual complainant but formed part of a test case strategy anchored in collective actions and involving an equality body and civil courts.180 Diversity in governance tools goes beyond collective actors engaging in litigation. The interplay between a broad range of mechanisms largely takes place at the domestic level. Yet, once again, EU law is capable of influencing—​if not shaping—​ some of the features of this governance framework. EU funding may indeed support the anchoring of a given legal culture. For instance, Passalacqua particularly usefully stresses that the four Italian associations that intervened in the Kamberaj181 proceedings, leading to a preliminary ruling by the Court (discussed earlier),182 had been partners in an EU-​funded project promoting non-​discrimination.183 The project involved providing legal advice to victims of discrimination as well as raising awareness about non-​discrimination. Passalacqua adds that these four associations played

173  The expression used in the title of this section is borrowed from de Búrca (n 24) Ch 4. 174  Bob Hepple, ‘Enforcing Equality Law: Two Steps Forward and Two Steps Backwards for Reflexive Regulation’ (2011) 40 ILJ 315, 322. 175  See also Sara Lahuerta, ‘The Effectiveness of the EU Race Equality Directive at National Level: A Comparative Study of British and Spanish Legislation and Policies’ (DPhil thesis, Leicester 2014) Ch 6. 176  Muir and Kolf (n 168) 30. 177  Frédéric Hay v Crédit agricole mutuel de Charente-​ Maritime et des Deux-​ Sèvres [2013] ECLI:EU:C:2013:823. 178  Latraverse (n 148) 64. 179  ‘CHEZ Razpredelenie Bulgaria’ AD v Komisia za zashtita ot diskriminatsia [2015] ECLI:EU:C:2015:480. 180  Farkas (n 159) 40–​41. 181  Servet Kamberaj v Istituto per l’Edilizia Sociale della Provincia autonoma di Bolzano (IPES) and others [2012] ECLI:EU:C:2012:233. 182  Chapter 4, section B.2. 183  Passalacqua (n 97) 80–​81.

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a ‘quasi-​institutional role’: they organized meetings with other organizations to address specific problems related to housing benefits for third-​country nationals.184 Such complementarities between various governance tools are particularly useful where there are power asymmetries between stakeholders, for instance where the national equality body is very weak, as is the case in Italy, or where NGOs lack resources or expertise. One interesting point, however, is whether these various governance tools may also compete against or hinder each other.185 In Denmark, for instance, one could question whether the omnipresence of unions in the handling of discrimination complaints does not create a risk of having a lack of monitoring of discrimination practices outside the field of employment. Along similar lines, it may be considered whether the quasi-​judicial function of certain equality bodies may have a detrimental effect on their other policy and ex-​ante functions.186

4. Interplay between the domestic sphere and EU law concepts In turn, the dynamics created by the EU equality law through the support lent to key players domestically can feed back into the development of core legal concepts at an EU level. EU law, which can be invoked before domestic courts and takes primacy over domestic law, provides a tool to circumvent domestic resistance towards change. In this context, the preliminary ruling procedure is sometimes used as a strategic tool to push for a progressive vision of a given right to be imposed on domestic authorities by EU law. The study coordinated with Kilpatrick, Miller, and de Witte provides multiple illustrations, in practice, of this logic of circumvention. Danish trade unions, for instance, have been reaching out to the Court to enhance the extent of the prohibition of disability discrimination. Atanasova and Miller explain that the Court’s HK Danmark (Ring and Skouboe Werge)187 ruling largely came about as a result of a particularly narrow reading of the notion of disability by Danish courts.188 Danish employee representatives made a conscious choice to push for a reference to the Court in the hope of a more generous interpretation of the notion. More generally, Danish stakeholders working in the equality field at the national level are reported to perceive the Court as more likely to issue positive decisions in the equality 184  As Passalacqua reports, they further collectively decided to challenge the approach of the province through pilot cases. 185  Exploring the relationship between national equality bodies and national human rights institutions, Neil Crowther and Colm O’Cinneide, ‘Bridging the Divide:  Integrating the Functions of National Equality Bodies and National Human Rights Institutions in the European Union’ (2013) University College London, Faculty of Laws. 186  Along similar lines, see Farkas (n 159) 38; and Evangelia Tsourdi, ‘Enforcing Refugee Rights under EU Procedural Law: The Role of Collective Actors and UNCHR’ in Elise Muir, Claire Kilpatrick, Jeffrey Miller, and Bruno de Witte (eds), ‘How EU Law Shapes Opportunities for Preliminary References on Fundamental Rights: Discrimination, Data Protection and Asylum’ (2017) EUI Working Paper Law 2017/​17, 111; Hepple (n 174); Mercat-​Bruns (n 148) 38. 187  HK Danmark, acting on behalf of Jette Ring v Dansk almennyttigt Boligselskab (C-​335/​11) and HK Danmark, acting on behalf of Lone Skouboe Werge v Dansk Arbejdsgiverforening, acting on behalf of Pro Display A/​S [2013] ECLI:EU:C:2013:222. 188  Atanasova and Miller (n 144) 51–​53.

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field compared to national courts. It is perhaps worth noting here that the logic of circumvention may not always (immediately) work, either because rulings of the Court of Justice do not match expectations or because the domestic court remains reluctant to adopt the suggested new approach. Apart from the general potential that EU law offers for strategic litigation, governance infrastructures created or enhanced under the influence of EU law have at times been catalysts to make greater use of this circumvention logic.189 For instance, the Belgian equality bodies, significantly shaped by EU legislation, have purportedly decided to use the preliminary ruling procedure in an attempt to circumvent domestic resistance to change. The dynamics behind the Feryn190 and Achbita191 cases—​on ethnic origin and religious discrimination respectively—​clearly show this point.192 The referral by the equality body in Belov,193 initiated in Bulgaria where no such body existed before the implementation of the EU Race Equality Directive, illustrates attempts to override decisions of the Bulgarian Supreme Administrative Court.194 Similar choices to use EU law arguments, as well as the preliminary ruling procedure in order to address domestic problems, lay in the background of the case identified by Italian associations funded by EU programmes in Kamberaj.195 In addition to opting for EU law and pushing for preliminary ruling procedures to be used, domestic collective actors may also shape the way in which EU substantive equality can develop as a consequence of a ruling by the Court of Justice. Belgian equality bodies, for instance, have been strategically using EU law arguments as well as the preliminary ruling procedure itself.196 There is no procedure for parties or collective actors to have a direct influence on the wording of preliminary questions in Belgium. Yet, in collaboration with Kolf, we traced the history of the preliminary rulings in Feryn197 and Rosselle198 and could see evidence of the decisive impact of Belgian equality bodies on the use of EU law arguments. In these cases the equality bodies had a very strong influence on the drafting of the preliminary questions. In that sense, infrastructure empowered by EU anti-​discrimination law to promote equal treatment at the domestic level has allowed for also promoting the right at the EU level.199 189  Let us recall that this observation is without prejudice to the final outcome of the CJEU ruling and focuses instead on the use made by stakeholders of the multiple layers of norms for protection against discrimination. 190  Centrum voor Gelijkheid van Kansen en voor Racismebestrijding v Firma Feryn NV [2008] ECLI:EU:C:2008:397. 191  Samira Achbita and Centrum voor Gelijkheid van Kansen en voor Racismebestrijding v G4S Secure Solutions NV [2017] ECLI:EU:C:2017:203. 192  Muir and Kolf (n 168) 24–​25. 193  Valeri Hariev Belov v CHEZ Elektro Balgaria AD and others [2013] ECLI:EU:C:2013:48. 194  Farkas (n 159) 41. 195  Passalacqua (n 97) 80. 196  Muir and Kolf (n 168) 28–​30. 197  Centrum voor Gelijkheid van Kansen en voor Racismebestrijding v Firma Feryn NV [2008] ECLI:EU:C:2008:397. 198  Charlotte Rosselle v Institut national d’assurance maladie-​invalidité (INAMI) and Union nationale des mutualités libres (UNM) [2015] ECLI:EU:C:2015:339. 199  It should be recalled that there is no attempt at assessing whether a preliminary ruling by the Court has had a positive or a negative outcome. Instead, the very use of the preliminary ruling procedure

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5. Conclusions: EU legislation shaping the governance of EU fundamental rights at the domestic level The construction of a framework for the governance of equality law at the EU level has therefore resulted in the creation and consolidation of infrastructure at the domestic level through a broad range of regulatory mechanisms. Although these mechanisms are adapted to the specificities of anti-​discrimination, they rely upon a holistic approach that is not unique to EU equality law. There is ample literature on the new governance of EU policies.200 Increasing attention is also being devoted to the burgeoning of initiatives and rules enshrined in EU legislation, intended to support the enforcement of specific EU policies at the domestic level.201 Within this diversity though, the ‘transformative’ mandate of select areas of EU law shapes the modes of governance chosen at a European level. Policies intended to have a direct impact on interpersonal relationships and to modify societal habits warrant a wide-​ranging set of tools. While this is certainly the case for EU equality law and policy, these features are not exclusively for that policy area. EU data protection law, for instance, is also in many ways intended to regulate horizontal relationships. In this context, it should not come as a surprise that much attention is paid to engaging NGOs or other legal entities with a qualified interest in triggering change in these fields where interests to be protected are fairly abstract or the victims disenfranchised and dispersed.202 Lessons can thus be learnt from the last ten to fifteen years of transposing and using EU equality legislation as well as from examining more recent legislative developments and practices in other fields. This is particularly important as rules intended to enhance the implementation of selected fundamental rights policies are currently being developed. In particular, distinct yet comparable provisions emphasizing the role of collective actors have been inserted in other branches of EU law closely intertwined with fundamental rights protection. For example, a directive on the enforcement of posted workers rights contains an article entitled ‘Defence of rights, facilitation of complaints, back-​payments’.203 Another on the enforcement of the rights of mobile EU workers and their families also includes a provision on ‘Defence of rights’, as explained in section A.204 It may be that in the years to come EU decision-​makers will be inclined to transpose and adjust some of the existing mechanisms to other fields of law. The cross-​ sectoral analysis of procedural rules, governance tools, and their actual operation at

is deemed to be of interest as it shows reliance on the multi-​layered institutional set-​up provided by EU law. 200  eg Gráinne de Búrca and Joanne Scott (eds), Law and New Governance in the EU and the US (Hart Publishing 2006). 201  eg Mariolina Eliantonio and Elise Muir, ‘Concluding Thoughts:  Legitimacy, Rationale and Extent of the Incidental Proceduralisation of EU Law’ (2015) 8 REALaw 175. 202  ibid 187. 203  Directive (EU) 2014/​67 (n 95) Article 11. 204  Directive (EU) 2014/​54 (Workers Directive) (n 21) Article 3.

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the domestic level may act as a catalyst for cross-​fertilization.205 Horizontal soft law initiatives, such as the 2013 Commission Recommendation on Collective Redress, certainly seem to be a step in that direction.206 For instance, in the context of EU data protection law, the 2016 reform introduced provisions on access to justice for collective actors that partly mirror the rules in EU anti-​discrimination directives,207 together with a whole chapter on ‘Remedies, liabilities and penalties’.208 It will be interesting to observe whether and how collective actors engage in the governance of EU data protection law at a domestic level. This is currently the subject of in-​depth reflections within the data protection community.209 One of the main added values of EU legislative intervention on matters surrounding fundamental rights may therefore lie in planting the seeds for fruitful reflexive processes at the domestic level, through the creation of infrastructure such as equality bodies or data protection authorities with a wide range of powers. Emphasis should therefore not only be on the strength of the powers of actors but also on their diversity and softly textured nature, so as to allow for appropriation by the domestic sphere. Importantly, for such processes to be successful, infrastructure for EU fundamental rights governance at the domestic level ought to be able to operate despite potential hostility: such actors ought thus to be independent, a notion on which we will now further elaborate.210

C.  Cross-​Fertilization: The Example of Sectoral Fundamental Rights Guardians at the Domestic Level Challenges raised by the governance of various fundamental rights may have a lot in common despite the fact that the substance of those rights differs. The purpose of fundamental rights law is to tackle violations of rights deemed particularly important by a given polity. This often involves overcoming deeply rooted institutional as well as societal habits, hence recourse to higher ranking norms, new modes of 205  For a similar approach with significant potential spillover effects in the context of administrative law, see the work of the Research Network on EU Administrative Law, available at (last accessed 1 February 2018) and the Special Issue of this Journal devoted to it, (2014) 2 REALaw. 206  See also the Special Issue of Legal Issues of European Integration for a cross-​sectoral analysis of this Recommendation of 11 June 2013 on common principles for injunctive and compensatory collective redress mechanisms in the Member States concerning violations of rights granted under Union Law (2013/​396/​EU), as well as the detailed enquiry into domestic rules in the light of the Recommendation in Viktória Harsagi and CH van Rhee (eds), Multi-​Party Redress Mechanisms in Europe: Squeaking Mice? (Intersentia 2014); and Benedi Lahuerta (n 47). 207  Orla Lynskey, ‘The Role of Collective Actors in the Enforcement of the Right to Data Protection under EU Law’ in Elise Muir, Claire Kilpatrick, Jeffrey Miller, and Bruno de Witte (eds), ‘How EU Law Shapes Opportunities for Preliminary References on Fundamental Rights: Discrimination, Data Protection and Asylum’ (2017) EUI Working Paper Law 2017/​17, 90. 208  Regulation (EU) 2016/​679 of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/​46/​ EC [2016] OJ L119/​1 (General Data Protection Regulation) Articles 7 et seq. 209  eg Centre for Information Policy Leadership, ‘Regulating for Results: Strategies and Priorities for Leadership and Engagement’ (September 2017). 210  See also Hepple (n 174) 315 and 332–​33.

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governance, and/​or reaching out to particularly vulnerable victims, thus making it necessary to reflect on a wide range of mechanisms. In this context, the tools identified through policy-​making and legislation in support of the protection and promotion of a given fundamental right are likely to provide useful sources of inspiration for other fundamental rights policies. The analysis of the successes and failures of such tools may also be instructive for other policies. Although the EU does not have a general competence to address fundamental rights issues per se,211 it does have the competence to develop specific fundamental rights policies. It is submitted throughout this book that such fundamental rights competences have indeed been exercised in the context of EU equality law. It has also been argued that EU data protection law to some extent constitutes a fundamental rights policy of the EU.212 The EU legislature has therefore sought answers to the question of how to enhance the protection and promotion of the said fundamental rights. Yet, precisely because the EU does not have a general competence to address fundamental rights questions, this approach to the governance of EU fundamental rights is fragmented. The EU legislature acts by reference to specific legal bases which may, even in relation to a given fundamental right such as the right to equal treatment, be scattered across the EU Treaties.213 To date, therefore, there has not been much ‘horizontal thinking’ on how to improve the governance of select fundamental rights over which the EU has competence to legislate. In EU law, most of the attention is instead devoted either to horizontal fundamental rights instruments, such as the Fundamental Rights Agency (see section C.1), or to sectoral analysis but without seeking to bridge the sectors providing advanced protection of specific rights. A notable exception, and indication that this state of affairs may be in the process of changing, can be found in Directive 2014/​54 or the Workers Directive, discussed earlier. That Directive to a large extent transposes the procedural provisions contained in the sex and Article 19 TFEU anti-​discrimination directives to the prohibition of nationality discrimination for the benefit of migrant EU workers and their families.214 There may be space for a consistent reading of the procedural provisions of legislation that relate to key features of EU fundamental rights policies despite legislative fragmentation. As will now be illustrated, such an approach would build on distinction between these procedural rules and those enshrined in ‘ordinary’ legislation by making use of the distinct authority and dynamics of fundamental rights in EU law. It could also be used to strengthen the Commission’s position in relation to certain violations of EU law as it would shed light on enforcement gaps. After providing a concise overview of the provisions of EU legislation creating independent entities expected to act as guardians for the protection of fundamental rights at domestic level (see section C.1), we will reflect on the similarities between these structures and place specific emphasis on their role as independent policy actors (see section C.2).

211  See Chapter 1. 214  See section A.

212  See Chapter 4.

213  See Chapter 3, section A.

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1. The emergence of independent institutions guarding EU fundamental rights In the past decade, observers of EU fundamental rights governance have closely followed the development of the Fundamental Rights Agency (‘the Agency’ or FRA) in charge of promoting fundamental rights across the board at European level. The FRA was created in 2007 to replace the former European Monitoring Centre on Racism and Xenophobia.215 Among other things, it significantly broadened the competences of the former Centre and was intended to constitute a ‘Human Rights Agency’ at the European level.216 The multi-​annual programme of the agency for 2013–​2017217 as well as its latest annual report218 confirm the broad range of fundamental rights covered by the Agency’s work. It ranges from the right to access to justice to the rights of the child. Nevertheless, this broad mandate entertains a complex relationship with the limited competences of the EU in the field of human rights. The legal basis for the Agency is the so-​called flexibility clause, today found in Article 352 TFEU, meaning that the Agency is grounded in one of the least specific provisions of the Treaties, and thus that the link between the activities of the Agency and EU competences is not always clear.219 The actual powers of the FRA are of a ‘soft nature’ and intended to act as a complement to traditional enforcement tools. The Agency performs tasks such as the collection and analysis of data, enhancing its comparability, performing scientific research, providing opinions to EU institutions (without prejudice to the legislative process), reporting annually and thematically, and communicating and promoting dialogue with civil society.220 The FRA may not, however, be directly involved in enforcement. In brief, it provides assistance and expertise to the Member States and EU entities in order to ensure that they comply with EU fundamental rights law.221 The FRA has been criticized for not being able to usefully fulfil that role, in particular due to its inability to control its working agenda.222 215 Created by Council Regulation (EC) 1035/​ 97 of 2 June 1997 establishing a European Monitoring Centre on Racism and Xenophobia [1997] OJ L151/​1, as amended by Council Regulation (EC) 1652/​2003 of 18 June 2003 amending Regulation (EC) No 1035/​97 establishing a European Monitoring Centre on Racism and Xenophobia [2003] OJ L245/​33. For a historical overview, see Gabriel N Toggenburg, ‘The Role of the New EU Fundamental Rights Agency: Debating the “Sex of Angels” or Improving Europe’s Human Rights Performance?’ (2008) 33 EL Rev 385, 386; and Armin von Bogdandy and Jochen von Bernstorff, ‘The EU Fundamental Rights Agency within the European and International Human Rights Architecture: The Legal Framework and Some Unsettled Issues in a New Field of Administrative Law’ (2009) 46 CML Rev 1035, 1043–​47. 216  Council Regulation (EC) 168/​2007 of 15 February 2007 establishing a European Union Agency for Fundamental Rights [2007] OJ L53/​1, Preamble, Recital (5). 217  Council Decision (EU) 252/​2013 of 11 March 2013 establishing a Multiannual Framework for 2013–​2017 for the European Union Agency for Fundamental Rights [2013] OJ L79/​1, Article 2. 218  Fundamental Rights Agency, ‘Fundamental Rights Report 2016’ (2016). 219  Note that the activities of the FRA ought to remain within the competences of the EU: Council Regulation (EC) 168/​2007 (n 216) Article 3(1). See further von Bogdandy and von Bernstorff (n 215) 1051–​52; and Alicia Hinarejos, ‘A Missed Opportunity: The Fundamental Rights Agency and the Euro Area Crisis’ (2016) 22 ELJ 61, 64. 220  Council Regulation (EC) 168/​2007 (n 216) Article 4(1). 221  ibid Article 2. 222  Alicia Hinarejos (n 219) 70 and Dawson (n 1) 127–​33.

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The European Institute for Gender Equality was created around the same period, although with a much more specific mandate, as its name indicates, and with a clearer legal grounding in the current Articles 19(2) and 157(3) TFEU. It is also an organ with ‘soft’ powers at European level.223 It thus suffers from limitations similar to those of the FRA. This is all the more striking if compared to the fairly powerful structure created at the European level in the sector of data protection law, as will be explained later in relation to the European Data Protection Supervisor.224 The FRA and the European Institute for Gender Equality, although valuable additions to European fundamental rights governance,225 have not revolutionized the conditions for the governance of EU fundamental rights at domestic level. In contrast, as noted earlier, a set of procedural rules giving effect to EU anti-​discrimination directives introduced an important change.226 The main innovation brought by this ‘procedural package’ relates to ‘Bodies for the promotion of equal treatment’, according to the Racial Equality Directive.227 Member States are indeed required by most of the anti-​discrimination directives examined in this book (with the notable exception of the Framework Employment Directive228) to create or designate so-​ called ‘equality bodies’ for the promotion of equal treatment. Similarly, since the mid-​1990s, the Member States have been requested to provide that one or more authorities be responsible for monitoring the application of the provisions of the Data Protection Directive domestically (‘Data Protection Authorities’ or DPAs).229 Undeniable differences exist between equality bodies (see section C.1.a) and data protection authorities (see section C.1.b), as will be made clear in the upcoming overview of each set of organs. Nevertheless, it will be argued that both are legal entities designated by virtue of EU law at the domestic level with a view to strengthening the protection and enforcement of the relevant fundamental right (see section C.1.c). There is an emerging body of case law on these national ‘guardians of EU fundamental rights’230 whose role as components of the ‘complex web of multilayered EU human rights architecture’231 should not be underestimated. Although it is still too early to make any firm assertions, this trend suggests that there could be useful lessons to be learnt from one field for the other and that we might witness the emergence of a fairly coherent body of case law on the subject in the coming years.

223  Regulation (EC) 1922/​2006 of 20 December 2006 on establishing a European Institute for Gender Equality [2006] OJ L4039, Articles 3 and 4. 224  Though these two sectoral structures at European level are so different that they are difficult to compare; see later. 225  de Schutter (n 99) 134. 226  See section A.1.b.iv. 227 See also Council Directive (EC) 2004/​113 (n 14)  Article 12; Directive (EC) 2006/​54 (n 11) Article 20; Directive (EU) 2010/​41 (n 13) Article 11. 228  Council Directive (EC) 2000/​78 (n 16). 229  See the 1995 Data Protection Directive (Directive (EC) 95/​46) (n 64) Article 28(1). 230  The expression is borrowed from the ruling in European Commission v Federal Republic of Germany [2010] ECLI:EU:C:2010:125, para 23. 231  Jan Wouters, Katrien Meuwissen, and Ana Sofia de Barros, ‘The European Union and National Human Rights Institutions’ (2013) Leuven Centre for Global Governance Studies, Working Paper No 112.

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(a) EU equality bodies at the domestic level To start with EU equality law, the preambles to almost all of the directives232 discussed in this book make it clear that equality bodies exist so that protection against discrimination can be strengthened.233 Although the wording differs slightly in four directives covering race, ethnic origin, and sex discrimination (Directives 2000/​43, 2004/​ 113, 2006/​54, and 2010/​41), the relevant provisions are largely modelled on the Racial Equality Directive in its Article 13, reproduced here: 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 right of victims and of associations, organisations or other legal entities referred to in Article 7(2), providing independent assistance to victims of discrimination in pursuing their complaints about discrimination, –​ conducting independent surveys concerning discrimination, –​ publishing independent reports and making recommendations on any issue relating to such discrimination.234

Member States are thus required to create or designate organs for the promotion of equal treatment. As well as promotion duties involving surveys, reports, and recommendations, one of the minimum attributes of these equality bodies is to assist victims to pursue complaints. An important nuance in more recent equality directives relates to the possibility for these domestic bodies to exchange information with corresponding European bodies such as the European Institute for Gender Equality.235 Together with the provisions designed to allow selected legal entities such as NGOs to support private litigants236 and the reorganization of the burden of proof in discrimination cases,237 equality bodies are thus intended to develop a new legal culture. Since 2014, Article 4 of the Workers Directive has been devoted to ‘Bodies to promote equal treatment and to support Union workers and members of their family’.238 Member States are required to designate a body (or bodies)239 for the 232  With the intriguing exception of Directive (EC) 2006/​54 (n 11) Preamble, see, however, Recital (28): ‘The effective implementation of the principle of equal treatment requires appropriate procedures to be put in place by the Member States.’ 233 Racial Equality Directive (n 15)  Preamble, Recital (24); Directive (EC) 2004/​ 113 (n 14) Preamble, Recital (25); Directive (EU) 2010/​41 (n 13) Preamble, Recital (22); Workers Directive (n 21) Preamble, Recital (17). 234  Racial Equality Directive (n 15) Article13; Council Directive (EC) 2004/​113 (n 14) Article 12; Directive (EC) 2006/​54 (n 11) Article 20; Directive (EU) 2010/​41 (n 13) Article 11 states that the equality bodies within the meaning of Directive (EC) 2006/​54, Article 20 shall also be competent within the framework of Directive (EU) 2010/​41. 235  Directive (EC) 2006/​54 (n 11) Article 20(2)(d); and Directive (EU) 2010/​41 (n 13) Article 11(2)(d). 236  See section A. 237  See section A. 238  Workers Directive (n 21); see also section A of this chapter. 239  Or a structure/​structures.

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promotion, analysis, monitoring, and support of equal treatment and free movement rights of workers and their families.240 Such bodies may also either be created specifically for that purpose or rely on existing structures so as to allow Member States a certain margin of manoeuvre depending on their own institutional model. As in other prongs of EU equality law, the powers of these specialized bodies are important but remain limited. More specifically, the new Directive only requires that these bodies provide or ensure independent legal or other assistance. The Directive does not require that they be given competence to trigger legal proceedings. Member States are free to grant these entities the right to bring legal claims or not to do so. The model for the enforcement of EU equality law therefore remains primarily based on individual litigation, as for the other equality bodies.241 Interesting nuances in the wording of the 2014 Workers Directive compared to that of its predecessors are noticeable. The Workers Directive is slightly more forward looking when it comes to actively supporting private litigation to the extent that where specialized bodies provide assistance in legal proceedings, such assistance shall be free for claimants who lack the resources (although this is to be defined in accordance with national law or practice).242 Furthermore, the preamble to the Directive indicates that the specialized bodies may be asked to provide legal assistance in legal proceedings243 and should be encouraged to cooperate with, inter alia, labour inspectorates.244 These bodies may also be given competence to cover the right to equal treatment without discrimination on grounds of nationality of all EU citizens exercising their right to free movement and the members of their families, which is currently beyond the personal scope of the Workers Directive.245 Meanwhile, the legislature expresses a certain anxiety as to the adequate implementation of the provision on specialized bodies. The Directive calls on Member States to pay specific attention to ensuring that these bodies function properly.246 There is also a concern that the choice by certain Member States to spread the tasks of specialized bodies among several organs domestically may dilute the activities of these organs.247 We will return to these aspects when discussing the lack of clarity of the requirement that equality bodies act independently.248

(b) EU Data Protection Authorities at the domestic level Until recently, the main legislative instrument in the field of EU data protection law was the so-​called Data Protection Directive from 1995.249 As the Preamble

240  Note that the objective of the 2014 Directive is to address obstacles to the free movement of workers and their families not only through the better enforcement of the prohibition of discrimination but also by tackling more ‘neutral’ obstacles to movement; see further Muir (n 4) 168. 241  In contrast with public interest litigation. Although see the Workers Directive (n 21) Recital (15): ‘Member States are invited to examine the implementation of common principles for injunctive and compensatory collective redress mechanisms.’ 242  Workers Directive (n 21) Article 4(2). 243  ibid Recital (17). 244  ibid Recital (20). 245  ibid Article 7(2). 246  ibid Article 4(1). 247  ibid Article 4(5). 248  See section C.2.b.iii. 249  1995 Data Protection Directive (Directive (EC) 95/​46) (n 64).

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to the Directive makes clear, ‘the establishment in Member States of supervisory authorities, exercising their functions with complete independence, is an essential component of the protection of individuals with regard to the processing of personal data’.250 In essence, DPAs are consultative organs for public institutions; they also have investigative powers, powers of intervention, and powers to engage in legal proceedings. They may hear claims and have reporting duties. It must be possible to challenge their decisions before courts. It is useful to reproduce here the full text of Article 28 of the Data Protection Directive which is devoted to the data protection supervisory authorities in order to allow the reader to follow the comparison between equality bodies and DPAs below. Article 28 of the 1995 Data Protection Directive reads as follows: 1. Each Member State shall provide that one or more public authorities are responsible for monitoring the application within its territory of the provisions adopted by the Member States pursuant to this Directive. These authorities shall act with complete independence in exercising the functions entrusted to them. 2. Each Member State shall provide that the supervisory authorities are consulted when drawing up administrative measures or regulations relating to the protection of individuals’ rights and freedoms with regard to the processing of personal data. 3. Each authority shall in particular be endowed with: –​ investigative powers, such as powers of access to data forming the subject-​matter of processing operations and powers to collect all the information necessary for the performance of its supervisory duties, –​ effective powers of intervention, such as, for example, that of delivering opinions before processing operations are carried out, in accordance with Article 20, and ensuring appropriate publication of such opinions, of ordering the blocking, erasure or destruction of data, of imposing a temporary or definitive ban on processing, of warning or admonishing the controller, or that of referring the matter to national parliaments or other political institutions, –​ the power to engage in legal proceedings where the national provisions adopted pursuant to this Directive have been violated or to bring these violations to the attention of the judicial authorities. ­Decisions by the supervisory authority which give rise to complaints may be appealed against through the courts. 4. Each supervisory authority shall hear claims lodged by any person, or by an association representing that person, concerning the protection of his rights and freedoms in regard to the processing of personal data. The person concerned shall be informed of the outcome of the claim. Each supervisory authority shall, in particular, hear claims for checks on the lawfulness of data processing lodged by any person when the national provisions adopted pursuant to Article 13 of this Directive apply. The person shall at any rate be informed that a check has taken place. 5. Each supervisory authority shall draw up a report on its activities at regular intervals. The report shall be made public. 250  ibid Preamble, Recital (62).

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6. Each supervisory authority is competent, whatever the national law applicable to the processing in question, to exercise, on the territory of its own Member State, the powers conferred on it in accordance with paragraph 3. Each authority may be requested to exercise its powers by an authority of another Member State. The supervisory authorities shall cooperate with one another to the extent necessary for the performance of their duties, in particular by exchanging all useful information. 7. Member States shall provide that the members and staff of the supervisory authority, even after their employment has ended, are to be subject to a duty of professional secrecy with regard to confidential information to which they have access.

We will come back to DPAs as regulated by the 1995 Data Protection Directive for the purpose of comparing them to equality bodies shortly. A further instrument, Framework Decision 2008/​977,251 was until recently the second main instrument. It is devoted to the protection of personal data processed in the framework of police and judicial cooperation in criminal matters, which was the third pillar of the EU pre-​Lisbon. The Framework Decision cross-​refers to data protection authorities within the meaning of the Data Protection Directive to also take on the implementation of the Framework Decision itself.252 A related and important instrument is Regulation (EC) 45/​2001. This Regulation is devoted to the protection of individuals with regard to the processing of personal data by EU institutions and bodies and on the free movement of such data.253 It therefore creates an independent supervisory authority at European level called the ‘European Data Protection Supervisor’254 (EDPS). Although the EDPS Regulation does not deal with national DPAs, it is an important instrument in so far as it provides details on institutional features of the EDPS that have no equivalent in the legislation on DPAs. These institutional provisions have, however, been referred to in the case law on DPAs, as will be explained. Indeed, the EDPS is an ‘independent supervisory authority’.255 Article 41(2) of the EDPS Regulation establishes a clear link between the EDPS and the protection of the fundamental right to privacy. The EDPS Regulation provides further information on: the conditions for the appointment of the EDPS;256 the performance of its duties, staff, and financial resources;257 professional secrecy;258 the duties of the EDPS, ranging from hearing and investigating complaints to advising EU institutions;259 powers such as obtaining access to premises or referring matters to the Court;260 and reporting.261 Importantly for our

251 Council Framework Decision 2008/​977/​JHA of 27 November 2008 on the protection of personal data processed in the framework of police and judicial cooperation in criminal matters [2008] OJ L350/​60 (Data Protection Framework Decision). 252  ibid Preamble, Recitals (33)–​(34) and Article 25. 253  Regulation (EC) 45/​2001 of 18 December 2000 on the protection of individuals with regard to the processing of personal data by the Community institutions and bodies and on the free movement of such data [2001] OJ L8/​1. 254  ibid Article 1(2). 255  ibid Article 41(1). 256  ibid Article 42. 257  ibid Article 43. 258  ibid Article 45. 259  ibid Article 46. 260  ibid Article 47. 261  ibid Article 48.

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purpose, Article 44 is devoted to the independence of the EDPS and makes clear, inter alia, that the EDPS shall act in complete independence and neither seek nor take instructions from anybody, shall refrain from any action incompatible with his or her duties, and shall not, during his or her term of office, engage in any other occupation, whether gainful or not. More recently, the EU legislature has profoundly revised the legislative framework that was composed of the 1995 Data Protection Directive and the Framework Decision, as just described. A  legislative package from 2016 includes a set of significantly more ambitious provisions on data protection authorities.262 These provisions have not yet had an impact on the Court’s case law. The Regulation applies as from May 2018263 and it will probably take time before relevant controversies are brought before the Court. Yet, it is useful to provide a concise overview of the key novelties relevant for the analysis that will follow. To start with, the 2016 General Data Protection Regulation264 replaces the 1995 Data Protection Directive. Among other things, it links more explicitly than its predecessor the function of domestic data protection authorities with the protection of fundamental rights265 and provides more guidance on the independence of national data protection authorities.266 Provisions also relate to the membership of the authority,267 its establishment,268 competences, tasks, and powers.269 As for the 2016 Data Protection Directive, it replaces the 2008 Framework Decision. The 2016 Data Protection Directive also provides more guidance on the points just listed; in particular on the fundamental rights mandate of the domestic data protection authorities and its independence.270 As was the case with its predecessor, the Framework Decision, it cross-​refers to the authorities covered by the 2016 General Data Protection Regulation to ensure its own implementation.271

262  General Data Protection Regulation (n 208); and Directive (EU) 2016/​680 on the protection of natural persons with regard to the processing of personal data by competent authorities for the purposes of the prevention, investigation, detection or prosecution of criminal offences or the execution of criminal penalties, and on the free movement of such data, and repealing Council Framework Decision 2008/​977/​JHA [2016] OJ L119/​89 (2016 Data Protection Directive). 263  General Data Protection Regulation (n 208) Article 99(2); see further 2016 Data Protection Directive (n 262) Article 63. 264  See 2016 General Data Protection Regulation (n 208)  Preamble, Recitals (117)–​(123) and Articles. 265  ibid Article 51(1): ‘Each Member State shall provide for one or more independent public authorities to be responsible for monitoring the application of this Regulation, in order to protect the fundamental rights and freedoms of natural persons in relation to processing and to facilitate the free flow of personal data within the Union.’ 266  ibid Preamble, Recitals (118) and (120), and Article 52. These recitals reflect the debate on the various dimensions of independence retraced in the analysis of the case law later in this chapter but also go beyond the requirements established by the Court of Justice on the basis of the 1995 Data Protection Directive (n 64). 267  2016 Data Protection Directive (n 262) Article 53. 268  ibid Article 54. 269  ibid Articles 55–​59. 270  See further ibid Articles 41–​49. 271  ibid Preamble, Recital (26).

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(c) Different origins and designs, but independent fundamental rights guardians in both cases Comparing the legislative frameworks for equality bodies and DPAs as they are currently applicable,272 one ought to acknowledge the existence of undeniable differences between the two types of entities. First, some aspects of their functions differ. Data protection authorities have a role related to the internal market and free movement (of data) in the EU that equality bodies do not have—​with the exception of bodies covered by the Workers Directive from 2014.273 Second, their tasks and powers are distinct in so far as DPAs have a broader mandate than equality bodies and are significantly more powerful. For instance, DPAs are consulted for the drafting of administrative measures or regulations relating to the protection of individuals’ rights and freedoms with regard to the processing of personal data.274 DPAs have investigative powers, such as powers of access to data forming the subject matter of processing operations and powers to collect all information necessary for the performance of supervisory duties,275 the power to engage in legal proceedings,276 and the power to hear claims.277 None of the powers is made available to equality bodies by EU law. The stronger mandate and powers for DPAs can be explained by the link between the regulation of data protection and internal market-​making, a field in which the EU has a stronger tradition of regulatory intervention278 than it does in relation to social and non-​economic questions as touched upon by equality law. Yet, unlike the parallel between the European Gender Institute and the EDPS—​ with evidence of such wide gaps that the structures are hardly comparable—​the legislative frameworks for equality bodies and DPAs actually indicate important similarities. In terms of their functions, both sets of entities have mandates that relate to the protection of a selected fundamental right. As noted, the preambles to most anti-​discrimination directives refer to the role of the equality bodies as strengthening protection against discrimination. As for the preamble to the 1995 Data Protection Directive, it asserts that the data protection authorities at a domestic level are an essential component of the protection of individuals with regard to the processing of personal data. While the link with the relevant fundamental right is straightforward for equality bodies, given the clear fundamental rights dimension of the relevant anti-​discrimination directives, such a link has become clearer and clearer in the past few years for DPAs. This is now obvious from the wording of Article 8(3) CFEU, according to which compliance with the fundamental right to data protection shall be

272  ie before the application or expiry of the implementation period of the 2016 Data Protection Reform. 273  Note that the objective of the 2014 Directive is to address obstacles to the free movement of workers and their families not only through the better enforcement of the prohibition of discrimination but also by tackling more ‘neutral’ obstacles to movement; see further Muir (n 4) 168. 274