The European Union as Protector and Promoter of Equality [1st ed.] 9783030437633, 9783030437640

Table of contents :
Front Matter ....Pages i-vii
Introduction: Is the European Union a Credible Protagonist of Equality in Europe and the Wider World? (Thomas Giegerich)....Pages 1-10
Front Matter ....Pages 11-11
Are Equality and Non-Discrimination Part of the EU’s Constitutional Identity? (Stefan Kadelbach)....Pages 13-24
Equality and Non-Discrimination as an Integral Part of the EU Constitutional Identity (Ana Maria Guerra Martins)....Pages 25-44
The Political Dimensions of Equality in the European Union: Equality of Union Citizens and Equality of Member States in a Supranational Representative Democracy (Thomas Giegerich)....Pages 45-95
The Protection and Promotion of Language Equality in the EU: Gaps, Paradoxes, and Double Standards (Xabier Arzoz)....Pages 97-112
Front Matter ....Pages 113-113
Uniformity or Variation: Should the CJEU ‘Carry Over’ its Gender Equality Approach to the Post-2000 Equality Grounds? (Colm O’Cinneide)....Pages 115-133
Non-Discrimination, the European Court of Justice and the European Court of Human Rights: Who Takes the Lead? (Janneke Gerards)....Pages 135-163
Has the EU Taken Comprehensive and Coherent Action to Combat Discrimination? (Sara Benedi Lahuerta)....Pages 165-184
The Coherence of EU Antidiscrimination Law: A Look at its Systemic Approach in Light of Relational Grounds of Discrimination and Collective Norms in Employment (Marie Mercat-Bruns)....Pages 185-198
Genuine and Determining Occupational Requirement as an Exception to the Prohibition of Discrimination in EU Law (Justyna Maliszewska-Nienartowicz)....Pages 199-217
The Concept of “Genuine and Determining Occupational Requirements” in EU Equality Law: A Critical Approach (Sara Iglesias Sánchez)....Pages 219-233
Making Antidiscrimination Law Effective: Burden of Proof, Remedies and Sanctions in Discrimination Cases (Katrin Wladasch)....Pages 235-244
Substantive Formal Equality in EU Non-Discrimination Law (Marc De Vos)....Pages 245-267
A Quite Peculiar Example of Positive Action: The New Directive on Work-Life Balance (Álvaro Oliveira)....Pages 269-279
Front Matter ....Pages 281-281
The European Union as a Protector and Promoter of Equality: Discrimination on Grounds of Sexual Orientation and Gender Identity (Andreas R. Ziegler)....Pages 283-296
Overweight and Obesity as Novel Grounds of Discrimination (Dagmar Richter)....Pages 297-335
Non-ideal Weight Discrimination in EU Law (Tamara Hervey, Christa Tobler)....Pages 337-347
The Impact of the UN Convention on the Rights of Persons with Disabilities on EU Anti-Discrimination Law (Theresia Degener)....Pages 349-362
The United Nations Convention on the Rights of Persons with Disabilities and EU Disability Law: Towards a Converging Vision of Equality? (Andrea Broderick)....Pages 363-390
Age Discrimination as a Bone of Contention in the EU (Gözde Kaya)....Pages 391-415
Age Discrimination as a Bone of Contention in the EU: A Psychological Perspective (Ulrike Fasbender)....Pages 417-425
Front Matter ....Pages 427-427
The EU’s Law and Policy Framework for the Promotion of Gender Equality in the World (Anne Thies)....Pages 429-454
From Hierarchy to Dialogue: EU-Africa Exchange on the Right to Equality and the Prohibition of Discrimination by Religious Organisations (Rosaan Krüger)....Pages 455-473
European Anti-Discrimination Law: The American Perspective (Mathias Möschel)....Pages 475-485
The European Union as Promoter of Equality in Asia: Beyond Economic Tools of Influence (Holning Lau, Kelley Loper)....Pages 487-502

Citation preview

European Union and its Neighbours in a Globalized World 1

Thomas Giegerich Editor

The European Union as Protector and Promoter of Equality

European Union and its Neighbours in a Globalized World Series Editors Marc Bungenberg, Saarbrücken, Germany Mareike Fröhlich, Saarbrücken, Germany Thomas Giegerich, Saarbrücken, Germany Neda Zdraveva, Skopje, North Macedonia Advisory Editors Başak Baysal, Istanbul, Turkey Manjiao Chi, Beijing, China Annette Guckelberger, Saarbrücken, Germany Irina Guradze, Tiblissi, Georgia Ivana Jelić, Strasbourg, France Gordana Lažetić, Skopje, North Macedonia Yossi Mekelberg, London, UK Zlatan Meškić, Riyadh, Saudi Arabia Tamara Perišin, Luxembourg, Luxembourg Roman Petrov, Kyiv, Ukraine Dušan V. Popović, Belgrad, Serbia Andreas R. Ziegler, Lausanne, Switzerland

The series “The European Union and its Neighbours in a Globalized World” will publish monographs and edited volumes in the field of European and International Law and Policy. A special focus will be put on the European Neighbourhood Policy, current problems in European and International Law and Policy as well as the role of the European Union as a global actor. The series will support the cross-border publishing and distribution of research results of cross-border research consortia. Besides renowned scientists the series will also be open for publication projects of young academics. The series will emphasize the interplay of the European Union and its neighbouring countries as well as the important role of the European Union as a key player in the international context of law, economics and politics. Unique Selling Points: • Deals with a wide range of topics in regard of European and International Law but is also open to topics which are connected to economic or political science • Brings together authors from the European Union as well as from accession candidate or neighbouring countries who examine current problems from different perspectives • Draws on a broad network of excellent scholars in Europe promoted by the SEE | EU Cluster of Excellence, the Europa-Institut of Saarland University as well as in the South East European Law School Network

More information about this series at http://www.springer.com/series/16257

Thomas Giegerich Editor

The European Union as Protector and Promoter of Equality

Assistant Editors: Christina Backes and Julia Jungfleisch

Editor Thomas Giegerich Europa-Institut, Faculty of Law Saarland University Saarbrücken, Germany

ISSN 2524-8928 ISSN 2524-8936 (electronic) European Union and its Neighbours in a Globalized World ISBN 978-3-030-43763-3 ISBN 978-3-030-43764-0 (eBook) https://doi.org/10.1007/978-3-030-43764-0 © Springer Nature Switzerland AG 2020 This work is subject to copyright. All rights are reserved by the Publisher, whether the whole or part of the material is concerned, specifically the rights of translation, reprinting, reuse of illustrations, recitation, broadcasting, reproduction on microfilms or in any other physical way, and transmission or information storage and retrieval, electronic adaptation, computer software, or by similar or dissimilar methodology now known or hereafter developed. The use of general descriptive names, registered names, trademarks, service marks, etc. in this publication does not imply, even in the absence of a specific statement, that such names are exempt from the relevant protective laws and regulations and therefore free for general use. The publisher, the authors, and the editors are safe to assume that the advice and information in this book are believed to be true and accurate at the date of publication. Neither the publisher nor the authors or the editors give a warranty, expressed or implied, with respect to the material contained herein or for any errors or omissions that may have been made. The publisher remains neutral with regard to jurisdictional claims in published maps and institutional affiliations. This Springer imprint is published by the registered company Springer Nature Switzerland AG. The registered company address is: Gewerbestrasse 11, 6330 Cham, Switzerland

Contents

Introduction: Is the European Union a Credible Protagonist of Equality in Europe and the Wider World? . . . . . . . . . . . . . . . . . . . . . Thomas Giegerich Part I

1

Equality as a Fundamental Value of the EU

Are Equality and Non-Discrimination Part of the EU’s Constitutional Identity? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Stefan Kadelbach

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Equality and Non-Discrimination as an Integral Part of the EU Constitutional Identity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Ana Maria Guerra Martins

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The Political Dimensions of Equality in the European Union: Equality of Union Citizens and Equality of Member States in a Supranational Representative Democracy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Thomas Giegerich The Protection and Promotion of Language Equality in the EU: Gaps, Paradoxes, and Double Standards . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Xabier Arzoz Part II

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The EU as Protector of Equality: General Part of EU Antidiscrimination Law

Uniformity or Variation: Should the CJEU ‘Carry Over’ its Gender Equality Approach to the Post-2000 Equality Grounds? . . . . . . . . . . . . . 115 Colm O’Cinneide Non-Discrimination, the European Court of Justice and the European Court of Human Rights: Who Takes the Lead? . . . . . . . . . . . . . . . . . . . 135 Janneke Gerards v

vi

Contents

Has the EU Taken Comprehensive and Coherent Action to Combat Discrimination? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 165 Sara Benedi Lahuerta The Coherence of EU Antidiscrimination Law: A Look at its Systemic Approach in Light of Relational Grounds of Discrimination and Collective Norms in Employment . . . . . . . . . . . . . . . . . . . . . . . . . . . 185 Marie Mercat-Bruns Genuine and Determining Occupational Requirement as an Exception to the Prohibition of Discrimination in EU Law . . . . . . . . . . . . . . . . . . . 199 Justyna Maliszewska-Nienartowicz The Concept of “Genuine and Determining Occupational Requirements” in EU Equality Law: A Critical Approach . . . . . . . . . . . 219 Sara Iglesias Sánchez Making Antidiscrimination Law Effective: Burden of Proof, Remedies and Sanctions in Discrimination Cases . . . . . . . . . . . . . . . . . . . . . . . . . . 235 Katrin Wladasch Substantive Formal Equality in EU Non-Discrimination Law . . . . . . . . . 245 Marc De Vos A Quite Peculiar Example of Positive Action: The New Directive on Work-Life Balance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 269 Álvaro Oliveira Part III

Selected Special Issues of Antidiscrimination Law

The European Union as a Protector and Promoter of Equality: Discrimination on Grounds of Sexual Orientation and Gender Identity . . . 283 Andreas R. Ziegler Overweight and Obesity as Novel Grounds of Discrimination . . . . . . . . 297 Dagmar Richter Non-ideal Weight Discrimination in EU Law . . . . . . . . . . . . . . . . . . . . . 337 Tamara Hervey and Christa Tobler The Impact of the UN Convention on the Rights of Persons with Disabilities on EU Anti-Discrimination Law . . . . . . . . . . . . . . . . . . 349 Theresia Degener The United Nations Convention on the Rights of Persons with Disabilities and EU Disability Law: Towards a Converging Vision of Equality? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 363 Andrea Broderick

Contents

vii

Age Discrimination as a Bone of Contention in the EU . . . . . . . . . . . . . . 391 Gözde Kaya Age Discrimination as a Bone of Contention in the EU: A Psychological Perspective . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 417 Ulrike Fasbender Part IV

The EU as Promoter of Equality: Inside and Outside Perspective

The EU’s Law and Policy Framework for the Promotion of Gender Equality in the World . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 429 Anne Thies From Hierarchy to Dialogue: EU-Africa Exchange on the Right to Equality and the Prohibition of Discrimination by Religious Organisations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 455 Rosaan Krüger European Anti-Discrimination Law: The American Perspective . . . . . . . 475 Mathias Möschel The European Union as Promoter of Equality in Asia: Beyond Economic Tools of Influence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 487 Holning Lau and Kelley Loper

Introduction: Is the European Union a Credible Protagonist of Equality in Europe and the Wider World? Thomas Giegerich

Contents 1 Equality as Part of the Union’s Founding Narrative . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 2 Has the EU Done All It Can to Combat Discrimination Within the Union? . . . . . . . . . . . . . . . 2 3 Have the EU and Member States Done All They Can to Promote Human Rights Treaties Which Prohibit Discrimination? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 4 The Union’s Way Ahead Towards a More Equal, Equitable and Peaceful World . . . . . . . . . 9 References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

Abstract Closer analysis of the theoretical legal framework of the EU and the way in which it is put into practice leads to a mixed result regarding the Union’s credibility with regard to the protection and promotion of equality. The EU has done a lot, but not enough to combat discrimination within the Union. The EU and Member States have done too little to promote global and regional human rights treaties which prohibit discrimination. The Union should improve on its role as a protagonist of equality both internally and externally, leading by example and prudent policies, thus doing a service to humanity.

1 Equality as Part of the Union’s Founding Narrative This book contains most of the papers presented at the Jean-Monnet-Symposium on the European Union as Protector and Promoter of Equality in March 2019.1 Taking a multinational and mostly legal perspective, the book starts with an analysis of

1 Giegerich et al. (2019) (available at http://jean-monnet-saar.eu/wp-content/uploads/2019/07/ ExpertPaper_Tagungsbericht2019_final.pdf [accessed on 16 January 2020]).

T. Giegerich (*) Europa-Institut, Faculty of Law, Saarland University, Saarbrücken, Germany e-mail: [email protected] © Springer Nature Switzerland AG 2020 T. Giegerich (ed.), The European Union as Protector and Promoter of Equality, European Union and its Neighbours in a Globalized World 1, https://doi.org/10.1007/978-3-030-43764-0_1

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equality as a fundamental value of the EU (Part I), proceeds to a discussion of the EU’s role as protector of equality in two chapters (covering the general part [Part II] and selected special issues [Part III] of EU antidiscrimination law) and leads to an inside and outside perspective on the EU as a promoter of equality (Part IV). The conference and conference volume have been conceived as a contribution to answering the question if the EU is a credible protagonist of equality in Europe and the wider world. This question is legitimate in view of the fact that the Union’s founders have invoked the “universal values of the inviolable and inalienable rights of the human person, freedom, democracy, equality and the rule of law” in the second recital of the Preamble of the Treaty on European Union. Equality has thus been made part of the Unions’s founding narrative.2 Closer analysis not only of the theoretical legal framework of the EU but also of the way in which it is put into practice leads to a mixed result regarding the Union’s credibility with regard to the protection and promotion of equality. This will be illustrated by two examples, one concerning the internal, the other one the external antidiscrimination strategy of the EU.

2 Has the EU Done All It Can to Combat Discrimination Within the Union? According to Art. 2 TEU, the Union is founded on the value of equality (among others). That value is proclaimed as being common to the Member States in a society in which non-discrimination and equality between men and women prevail. Art. 21 (1) of the EU Charter of Fundamental Rights sets forth a long catalogue of prohibited grounds of discrimination which is the most comprehensive on the international level and yet non-exhaustive (“[a]ny discrimination based on any ground such as . . .”). It goes much further than its blueprint in Art. 14 ECHR—not only concerning the length of that catalogue, but also because it introduces an independent prohibition that is not accessory to the enjoyment of other rights and freedoms as set forth in the Charter. In contrast to this, Art. 14 ECHR requires that the discrimination occurs within the ambit of another provision of the Convention or one of its Protocols.3 However, the scope of Art. 21 (1) CFR is limited by another kind of accessoriness: While it fully binds the institutions, bodies, offices and agencies of the Union, the Member States are bound only when they are implementing Union law.4 According to the Court of Justice of the EU (ECJ), that means that Member States must comply with the Charter provisions “in all situations governed by European Union law” or where their action “falls within the scope of European Union law”.5 According to that same Court, Art. 21 (1) CFR applies in the 2

See also the second recital of the Preamble of the Charter of Fundamental Rights of the EU. See Application No. 40892/98, Koua Poirrez v France (ECtHR 30 September 2003), para. 36. 4 Art. 51 (1) CFR. 5 Case C-617/10, Åkerberg v Åklagaren (ECJ 26 February 2013), paras. 19, 21. 3

Introduction: Is the European Union a Credible Protagonist of Equality in. . .

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relationship between private persons in a field covered by EU law, Art. 51 (1) CFR notwithstanding, because in substance, the national courts are implementing Union law in such private-law disputes.6 When it comes to putting these ideals into practice, the powers of the EU are both limited and underused at least by the Union legislature (although not by the ECJ). According to Art. 19 (1) TFEU, the Union is empowered (not obliged [“may”]7) to take appropriate action to combat “discrimination based on sex, racial or ethnic origin, religion or belief, disability, age or sexual orientation”. This catalogue is obviously exhaustive and excludes discrimination based on social origin, genetic features, language (to name but a few other types of discrimination prohibited by Art. 21 CFR) from the EU’s enforcement power. The scope of Art. 19 (1) TFEU is further qualified by the requirement that any EU enforcement action remain “within the limits of the powers conferred by [the Treaties] upon the Union”. This qualification has not yet been sounded out by the case-law of the CJEU, but it seems to be stricter than the qualification of Art. 18 TFEU, the general prohibition of discrimination on grounds of nationality (“[w]ithin the scope of application of the Treaties”). Most importantly, however, EU action to combat discrimination pursuant to Art. 19 (1) TFEU can only be taken in accordance with a special legislative procedure in which the Council, after obtaining the consent of the European Parliament, acts unanimously. This stands in stark contrast to the EU power to implement the prohibition of discrimination on grounds of nationality which is subject to the ordinary legislative procedure.8 By giving each and every Member State government a veto, Art. 19 (1) TFEU has considerably hampered EU antidiscrimination action in the form of legislation. Art. 19 (1) TFEU, or rather its predecessor provision in Art. 13 (1) of the EC Treaty,9 was used to enact three important antidiscrimination directives: Council Directive 2000/43/EC implementing the principle of equal treatment between persons irrespective of racial or ethnic origin;10 Council Directive 2000/78/EC establishing a general framework for equal treatment in employment and

6

See Case C-414/16, Egenberger v Evangelisches Werk für Diakonie und Entwicklung (ECJ 17 April 2018), paras. 70 ff.; Case C-122/17, Meade v Smith (ECJ 7 August 2018), paras. 46 f.; Case C-68/17, IR v JQ (ECJ 11 September 2018), paras. 67 ff.; Case C-193/17, Cresco v Achatzi (ECJ 22 January 2019), paras. 75 ff. See also Joined Cases C-569/16 and C-570/16, Stadt Wuppertal v Bauer and Willmeroth v Broßonn (ECJ 6 November 2018), para. 87. 7 But see the “horizontal clauses” in Art. 8 TFEU (“. . . the Union shall aim to eliminate inequalities . . . between men and women”) and Art. 10 TFEU (“. . . the Union shall aim to combat discrimination based on sex, racial or ethnic origin, religion or belief, disability, age or sexual orientation”). Yet, “shall aim to eliminate/combat” falls short of “shall eliminate/combat”. 8 Art. 18 sentence 2 TFEU. Art. 157 (3) TFEU also prescribes the ordinary legislative procedure for the adoption of measures to ensure the application of the principle of equal opportunities and equal treatment of men and women in matters of employment and occupation, including the principle of equal pay for equal work or work of equal value. 9 According to Art. 13 (1) TEC (added by the Treaty of Amsterdam of 1997), the Council acted unanimously on a proposal from the Commission and after consulting the European Parliament. 10 Council Directive 2000/43/EC implementing the principle of equal treatment between persons irrespective of racial or ethnic origin OJ L 180/22–26 (2000).

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occupation;11 Council Directive 2004/113/EC implementing the principle of equal treatment between men and women in the access to and supply of goods and services.12 As is immediately obvious from their titles, these partly overlapping Directives either have a limited scope of applicability (employment, occupation, services) or concentrate on few grounds of discrimination (race, ethnic origin, gender), or both. Thus, the Directive 2000/78/EC lays down “a general framework for combating discrimination on the grounds of religion or belief, disability, age or sexual orientation as regards employment and occupation” (Art. 1). The ECJ has insisted that the provisions of those Directives cannot be relied upon as such against private persons, but where they implement a general principle of EU law that has been codified in Art. 21 CFR, the latter provision applies in a private-law dispute.13 It seems that the ECJ makes the direct effect of Art. 21 CFR conditional on the enactment of an antidiscrimination directive. On 2 July 2008, the Commission presented a proposal for a more general Council Directive on implementing the principle of equal treatment between persons irrespective of religion or belief, disability, age or sexual orientation which was based on Art. 13 (1) TEC.14 According to the Explanatory Memorandum, this proposal was aimed at implementing “the principle of equal treatment between persons irrespective of religion or belief, disability, age or sexual orientation outside the labour market.” It was intended to supplement the existing antidiscrimination directives, but limited to that short list of grounds for discrimination. For lack of unanimity in the Council, this proposal was never enacted. In his speech in the European Parliament as a candidate for President of the European Commission, Jean-Claude Juncker on 15 July 2014 said this: “Discrimination must have no place in our Union, whether on the basis of nationality, sex, racial or ethnic origin, religion or belief, disability, age or sexual orientation, or with regard to people belonging to a minority. I will therefore maintain the proposal for a directive in this field and seek to convince national governments to give up their current resistance in the Council.”15 And yet, the proposal has remained bottled up in the Council.

11 Council Directive 2000/78/EC establishing a general framework for equal treatment in employment and occupation OJ L 303/16–22 (2000). 12 Council Directive 2004/113/EC implementing the principle of equal treatment between men and women in the access to and supply of goods and services OJ L 373/37–43 (2004). See also the Directive 2006/54/EC of the European Parliament and of the Council 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) OJ L 204/23–26 (2006) which was based on Art. 141 (3) TEC (the predecessor provision of Art. 157 (3) TFEU). 13 See the CJEU case-law cited above in footnote 6. 14 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 of 2 July 2008. 15 Jean-Claude Juncker, Candidate for President of the European Commission: A New Start for Europe: My Agenda for Jobs, Growth, Fairness and Democratic Change – Political Guidelines for

Introduction: Is the European Union a Credible Protagonist of Equality in. . .

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In “My Agenda for Europe”, the candidate for President of the European Commission Ursula von der Leyen recently promised to “propose new antidiscrimination legislation”.16 She did not specifically refer to the existing 11 year old proposal which can hardly be qualified as “new”. So let us wait and see whether the von der Leyen Commission submits any new proposal instead. If they want to promote a “Union of equality”, as promised, they need to become active. But they should not subordinate equality to the headline ambition of “[a]n economy that works for the people”.17 Rather, equality is a value of its own and one of the cornerstones of the Union’s edifice: “[T]he Union is founded on the indivisible, universal values of human dignity, freedom, equality and solidarity”.18 A new Commission proposal to combat discrimination should therefore go beyond the economy.

3 Have the EU and Member States Done All They Can to Promote Human Rights Treaties Which Prohibit Discrimination? My second example concerns the Union’s relations with the wider world in general and more specifically, Europe as a whole that is organised by the Council of Europe. In this regard, Art. 3 (5) TEU obliges the Union to uphold and promote its values as well as to contribute to the protection of human rights. According to Art. 21 (1) TEU, its actions on the international scene “shall be guided by the principles which have inspired its own creation, development and enlargement, and which it seeks to advance in the wider world”. Among these are the universality and indivisibility of human rights and fundamental freedoms as well as the principle of equality. Has the EU led by example and given impulses to other regions of the world in regard to equality and non-discrimination? Concerning the worldwide protection of equality and promotion of non-discrimination, the Union is prevented from acceding to the two global human rights treaties with that particular focus—the International Convention on the Elimination of All Forms of Racial Discrimination19 and the Convention on the

the next European Commission, Strasbourg, 15 July 2014, p. 10 (https://ec.europa.eu/commission/ sites/beta-political/files/juncker-political-guidelines-speech_en.pdf). 16 A Union that strives for more. My agenda for Europe: Political Guidelines for the next European Commission 2019–2024, p. 11 (https://ec.europa.eu/commission/sites/beta-political/files/politicalguidelines-next-commission_en.pdf). 17 This was done by von der Leyen (2019)—see preceding footnote, pp. 8, 11. 18 Second recital of the preamble of the Charter of Fundamental Rights of the EU. 19 International Convention on the Elimination of All Forms of Racial Discrimination, UNTS vol. 660 (1965), p. 195.

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Elimination of All Forms of Discrimination against Women.20 Both conventions are open for accession by States only.21 The same holds true for the International Covenant on Civil and Political Rights22 and the International Covenant on Economic, Social and Cultural Rights,23 the two most comprehensive human rights treaties of global reach that both prohibit discrimination based on illegitimate grounds24 but likewise do not permit the Union to accede.25 This makes it difficult for the EU to lead by example and actively participate in treaty regimes for the protection of equality and promotion of non-discrimination. All the EU Members States have, however, become parties to all the abovementioned treaties, although they have by no means all accepted the individual communication mechanisms which constitute the most effective means for the enforcement of their treaty obligations.26 Some of them seem to prefer making promises without accepting full accountability as to whether they have kept them. But since the substantive provisions of the above-mentioned human rights treaties bind all the Member States, they can be used for ascertaining the unwritten general principles of Union law regarding equality and non-discrimination, in addition to the European Convention on Human Rights which is expressly mentioned in Art. 6 (3) TEU as pars pro toto in this regard.27 Moreover, these treaties can and should be employed as subsidiary means for the interpretation of the human rights provisions of EU law, including the Charter of Fundamental Rights. This is because the Member States remain in principle internationally responsible for violations of their global treaty commitments even where they act in fulfilment of their EU law obligations. It is an instance of the Union’s contribution to the strict observance of international law pursuant to Art. 3 (5) TEU to avoid provoking or even compelling Member States’ violations of international law. One appropriate way to do that is by interpreting EU law in conformity with international human rights norms binding all the Member States, if possible. This approach is particularly appropriate with regard to equality and non-discrimination, since several pertinent acts of EU secondary law expressly refer to a number of global human rights instruments that protect persons

20

Convention on the Elimination of All Forms of Discrimination against Women, UNTS vol. 1249 (1979), p. 13. 21 Art. 18 CERD; Art. 25 CEDAW. 22 International Covenant on Civil and Political Rights, UNTS vol. 999 (1966), p. 171. 23 International Covenant on Economic, Social and Cultural Rights, UNTS vol. 993 (1966), p. 3. 24 Art. 2 (1), Art. 26 ICCPR; Art. 2 (2), Art. 3 ICESCR. 25 Art. 48 ICCPR; Art. 26 ICESCR. 26 Art. 14 CERD: declarations by 23 Member States; Optional Protocol to CEDAW of 6 October 1999 (UNTS vol. 2131, p. 83): ratified by 26 Member States; Optional Protocol to the ICCPR of 16 December 1966 (UNTS vol. 999, p. 171): ratified by 27 Member States (not the UK); Optional Protocol to the ICESCR of 10 December 2008 (UN General Assembly Resolution A/RES/63/117): ratified by 8 Member States. 27 See Schadendorf (2015), pp. 28 ff.

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against discrimination to which all Member States are signatories.28 With the help of its Member States, the EU thus at least indirectly maintains its global credibility in matters of equality and non-discrimination. The only global human rights treaty which is expressly open for accession by regional integration organizations is the Convention on the Rights of Persons with Disabilities.29 This Convention places particular emphasis on the equality and non-discrimination of persons with disabilities.30 But it goes further by striving to ensure those persons’ full (in addition to equal) enjoyment of all human rights and to promote respect for their inherent dignity in the sense of their full and effective participation and inclusion in society.31 The definition of “regional integration organization” in Art. 44 (1) CRPD undoubtedly covers the EU, and the latter has indeed acceded to that Convention.32 In other words, the EU and their Member States have conjointly done much (but not all they could) to enhance the Union’s global credibility in matters of equality and non-discrimination. On the regional European level, however, the picture is markedly different. The EU has not yet become party to the European Convention on Human Rights and is thus not directly bound by the accessory prohibition of discrimination in Art. 14 ECHR and not subject to the external control by the European Court of Human Rights. Although Art. 6 (2) TEU, which was inserted by the Treaty of Lisbon of 2007, does not only confer power on the Union to accede to the Convention,33 but obliges it to exercise this power (“shall accede”), that obligation has not been fulfilled more than 10 years after the entry into force of the Treaty of Lisbon.34 The reason lies in the many conditions imposed by primary

28 Council Directive 2000/43/EC, recital (3) of the preamble: the Universal Declaration of Human Rights, the United Nations Convention on the Elimination of all forms [sic!] of Discrimination Against Women, the International Convention on the Elimination of all forms [sic!] of Racial Discrimination and the United Nations Covenants on Civil and Political Rights and on Economic, Social and Cultural Rights. Council Directive 2000/78/EC, recital (4) of the preamble: the Universal Declaration of Human Rights, the United Nations Convention on the Elimination of All Forms of Discrimination against Women, the United Nations Covenants on Civil and Political Rights and on Economic, Social and Cultural Rights. 29 Convention on the Rights of Persons with Disabilities, UNTS vol. 2515 (2006), p. 4. See Art. 43, 44 of that Convention. 30 See in particular Art. 1 (1), Art. 3 lit. b and e, Art. 4 (1), Art. 5, Art. 6 of that Convention. 31 See Art. 1 (1), Art. 3 lit. c CRPD. 32 Council Decision concerning the conclusion, by the European Community, of the United Nations Convention on the Rights of Persons with Disabilities, with a declaration concerning the competence of the EC with regard to matters governed by the Convention in Annex II OJ L 23/35–61 (2010). 33 See ECJ, Opinion 2/94, 28 March 1996 (according to which EU accession to the ECHR requires an express basis in primary law). 34 The Convention was amended accordingly in order to enable accession by the EU (see Art. 59 (2) ECHR that was inserted by Art. 17 of Protocol No. 14 of 13 May 2004 [CETS No. 194]). Originally, only Member States of the Council of Europe could become parties to the ECHR.

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EU law35 and their strict application by the ECJ which thwarted the first accession attempt by the EU more than 5 years ago.36 These obstacles have nothing specifically to do with the prohibition of discrimination under the ECHR. Yet, they convey the message that the EU is not ready to submit to external scrutiny by the European Court of Human Rights regarding its human rights record, including its record regarding equality and non-discrimination. The fact that the EU has for years been indirectly subject to Strasbourg scrutiny via the Member States that make primary EU law37 and implement secondary EU law38 does not do much to brighten up that picture. A much more serious default of both the Member States and the EU that is directly related to equality and non-discrimination concerns Protocol No. 12 to the ECHR.39 That Protocol is based on the “fundamental principle according to which all persons are equal before the law and are entitled to the equal protection of the law” and intended “to promote the equality of all persons through the collective enforcement of a general prohibition of discrimination”.40 Its Art. 1 (2) introduces a general prohibition of discrimination into the Convention system that is no longer accessory to other Convention provisions but works independently. It prohibits any discrimination by any public authority on any of the grounds included in the non-exhaustive list of Art. 14 ECHR (which the Protocol does not extend). Art. 1 (1) of Protocol No. 12 provides that the enjoyment of any right set forth by law shall be secured without any such discrimination. According to Art. 3 of Protocol No. 12, the provisions of Art. 1 shall be regarded as additional Articles to the ECHR so that Art. 19 ff. ECHR concerning enforcement of Convention rights through binding judgments of the European Court of Human Rights extend to Art. 1 of Protocol No. 12.41 Almost 20 years after its adoption only 10 EU Member States have ratified Protocol No. 12, Spain being the only large one. The others are obviously disinclined to submit to Strasbourg Court scrutiny with regard to discrimination issues beyond the scope of Art. 14 ECHR. The membership of the EU in its entirety does not lead by example and give impulses to other regions of the world concerning the implementation of equality and non-discrimination. Rather, the majority of them wants to keep equality issues within their sphere of sovereignty instead of giving the European Court of Human Rights the final say.

35 See Protocol (No. 8) Relating to Article 6 (2) of the Treaty on European Union on the Accession of the Union to the European Convention on the Protection of Human Rights and Fundamental Freedoms OJ C 326/273-273 (2016). 36 ECJ, Opinion 2/13, 18 December 2014. 37 Application No. 24833/94, Matthews v UK (ECtHR 18 February 1999). 38 Application No. 45036/98, Bosphorus v Ireland (ECtHR 30 June 2005). 39 Protocol No. 12 to the Convention for the Protection of Human Rights and Fundamental Freedoms CETS No. 177 (2000). 40 See recitals (1) and (2) of the Preamble of Protocol No. 12. 41 See Art. 46 ECHR.

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The EU as such has no policy of acceding to Protocol No. 12. In its first abortive attempt, the EU envisaged accession only to the ECHR and the Additional Protocol to which all the Member States are parties.42 It would indeed be unlikely for a Member State to permit the EU to accede to a Protocol that this Member State has not accepted for itself. Art. 218 (8) sentence 2 TFEU provides that the Council shall act unanimously for the agreement on accession of the Union to the ECHR and that the Council decision concluding that agreement additionally requires ratification by all the Member States in accordance with their respective constitutional requirements for its entry into force, as if it were an amendment to the Treaties.43 This gives each and every Member State a veto on the accession to the ECHR and Protocols which they do not have regarding EU accession to most other international treaties.44

4 The Union’s Way Ahead Towards a More Equal, Equitable and Peaceful World Based on these two examples, it seems that the EU could and should do better to position itself as a credible protagonist of equality in Europe and the wider world. The more detailed analyses in the following chapters of the book support that preliminary conclusion. If the Union improved on its role as a protagonist of equality both internally and externally, leading by example and prudent policies, it would do a service to humanity. This is because “recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world”.45 Equal rights not only of men and women, but also of nations large and small as well as peoples enjoying a right of selfdetermination are indispensable elements of an equitable international order without which universal peace will remain elusive.46

42

While Art. 6 (2) TEU mentions only accession to the Convention as such, it is widely (but not universally) accepted that the accession power conferred upon the EU by that provision extends at least to those Protocols which bind all the Member States and whose substantive provisions are regarded as additional articles to the Convention. See Grabenwarter and Pabel (2013), note 44. 43 See Art. 48 (4), (6) TEU. 44 Art. 218 (8) subpara. 1 TFEU. 45 First recital of the Preamble of the Universal Declaration of Human Rights UN General Assembly Resolution 217 A (III) (1948). 46 See the second recital of the preamble as well as Art. 1 (2) of the Charter of the United Nations, UNTS vol. 829 (1945), p. 119. See also the UN General Assembly Resolution “Promotion of a democratic and equitable international order”, A/RES/73/169 (2018).

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References Giegerich, Thomas, Simon Biehl, Katharina Koch, Dennis Traudt, and Laura Woll. 2019. Conference Report: The European Union as Protector and Promoter of Equality. Saar Expert Paper of 12 July 2019. . Grabenwarter, Christoph, and Katharina Pabel. 2013. Art. 6 TEU. In The Treaty on the European Union (TEU), ed. Hermann Josef Blanke and Stelio Mangiameli, 287–348. Erfurt: Springer. Juncker, Jean-Claude. 2014. A New Start for Europe: My Agenda for Jobs, Growth, Fairness and Democratic Change – Political Guidelines for the Next European Commission. . Schadendorf, Sarah. 2015. Die UN Menschenrechtsverträge im Grundrechtsgefüge der Europäischen Union. EuR 50: 50–72. von der Leyen, Ursula. 2019. A Union that Strives for More. My Agenda for Europe: Political Guidelines for the Next European Commission 2019–2024. .

Part I

Equality as a Fundamental Value of the EU

Are Equality and Non-Discrimination Part of the EU’s Constitutional Identity? Stefan Kadelbach

Contents 1 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 The Principle of Equality as Constitutive Value of EU Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.1 Emanations of the Principles of Equality and Non-Discrimination in Primary EU Law 2.2 Content of Equality as a Constitutional Value . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 Equality in the European “Private Law Constitution” . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 Justification for Unequal Treatment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 Legal Consequences of Violations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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Abstract This article elaborates on Article 2 TEU and how it is specified in the logic of values, aims, competencies and policies from which the European Union derives its constitutional identity. It follows from the history as well from the object and purpose of the founding treaties that equality and non-discrimination form part of this identity. A particular focus will be on equality in the private sector, which illustrates this special feature of the EU legal order. Finally, possible justification for, and some legal consequences of, unequal treatment and discrimination will be addressed.

S. Kadelbach (*) Goethe Universität Frankfurt am Main, Institut für Öffentliches Recht, Frankfurt am Main, Germany e-mail: [email protected] © Springer Nature Switzerland AG 2020 T. Giegerich (ed.), The European Union as Protector and Promoter of Equality, European Union and its Neighbours in a Globalized World 1, https://doi.org/10.1007/978-3-030-43764-0_2

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1 Introduction Article 2 TEU enumerates the fundamental “values” of the European Union. Accordingly, the Union is founded not only on the institutional fundaments on which the powers of the EU and their legitimacy are based, like democracy and the rule of law, but also on human dignity, freedom, equality and respect for human rights including the rights of persons belonging to minorities. The second sentence stresses that these values are common to the “Member States in a society in which pluralism, non-discrimination, tolerance, justice, solidarity and equality between women and men prevail”. All of these “values” are constitutional principles in the sense that they figure prominently in the constitutions of the EU member states.1 That they amount to what can be denoted as the constitutional identity of the EU follows from the fact that every candidate state which seeks to accede to the EU has to subscribe to these principles (Article 49 TEU) and that member states which no longer abide by them have to be aware of possible consequences as they are spelled out in Article 7 TEU, including the suspension of membership rights. Conversely, if the EU itself decided to give up on these values, it would change its character so fundamentally that the question would arise, under the constitutions of some of the member states, if membership would still be in harmony with their own constitutional law.2 This conclusion does not depend on the answer to the question whether or not the EU has a constitution in a formal or substantive sense, as the present author assumes. The least that can be said is that the Treaties complement the normative framework in which the member states and the EU as a multilevel system exercise their authority.3 Hence, in the wording of the EU Treaty, it appears that equality and non-discrimination form part of the EU’s constitutional identity. The question is with which contents equality and non-discrimination share this constitutional character, how deeply these principles are rooted in the EU legal order itself, and what the consequences of such an attribution are. Since the EU is a “community of law”4 or, as the ECJ puts it, “a union based on the rule of law”,5 it appears justified to address these questions with legal methods. Law is the medium in which the EU’s policies take shape, so that the texts of the Treaties, of secondary law and of judgments of the ECJ promise first answers. Even though normative expectations formulated in these texts need to be implemented in the real world, the sociological

1 This is not to imply that the principles of equality and non-discrimination may only operate as principles in the sense of legal theory as Josef Esser, Ronald Dworkin, or Robert Alexy have it; see Grünberger (2013), pp. 763–767. 2 As it is the case according to Article 23 of the German Basic Law and Chapter 10, Article 6 of the Swedish Instrument of Government. 3 Pernice (2001), Peters (2001), Giegerich (2003) and Kadelbach (2007). 4 Hallstein (1969), p. 33; Zuleeg (1994) and Mayer (2017). 5 Case C-619/18, Commission v Poland (ECJ 24 June 2019). para. 46 (with further references).

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task to assess how constitutional demands are transformed by social practice is beyond the expertise of the present writer and thus beyond the reach of this article. Rather, the following section will elaborate a little further on Article 2 TEU and how it is specified in the logic of values, aims, competencies and policies of the European Union (below Sect. 2). Secondly, a particular focus will be on equality in the private sector, which illustrates a special feature of the EU legal order (Sect. 3). Finally, possible justification for (Sect. 4), and some legal consequences of (Sect. 5), unequal treatment and discrimination will be addressed.

2 The Principle of Equality as Constitutive Value of EU Law 2.1

Emanations of the Principles of Equality and Non-Discrimination in Primary EU Law

Non-discrimination clauses were already enshrined in the Rome Treaties. The most famous ones are the prohibitions of discrimination based on nationality (today Article 18 TFEU) and the principle of equal treatment between producers and consumers in the organisation of the common agricultural markets (Article 40 (2) TFEU). In the process of their constitutionalisation, a more general idea of equality gradually made its way into the Treaties until it has become one of the EU’s “values” in the sense of Article 2 TEU. This Article, the constitutional grundnorm of the EU, has emerged from the Maastricht Treaty and from Article I-2 of the Treaty on a Constitution for Europe of 2003 as re-drafted in the wake of the Austrian case in 2000. It goes back to the Declaration on European Identity of the 1973 Copenhagen Conference, even though this document only referred to human rights in general as a component of European constitutional identity.6 Article 2 TEU has essentially two functions: (1) To demark an area of normative homogeneity, a spectrum that states must not leave if they intend to become a member of the Union; in that function, it forms part of the conditions set out in Article 49 TEU and the so-called Copenhagen criteria for the accession of candidate states,7 the violation of which may trigger the rule of law procedure and the three-step sanctions cascade of Article 7 TEU. (2) To indicate the value orientation in which the EU and its member states intend to develop as a constitutional compound based on the legitimacy of its public 6

Declaration on European Identity (1973), Bull EC 1973, No. 12, 118; see Jacqué (2015), para. 1. The Copenhagen criteria only refer to “institutions guaranteeing democracy, the rule of law, human rights and respect for and protection of minorities”, European Council in Copenhagen (21–22 June 1993), Conclusions of the Presidency, SN 180/1/93 Rev 1, para. 7 A iii (p. 13), so that Article 2 TEU is more explicit in that respect.

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authority. This includes a normative programme which informs and guides the legislation, governance, and jurisprudence of the EU’s institutions. This function follows from the second sentence of Article 2 TEU, which refers to “a society”, in which the values enumerated in the preceding sentence prevail. The values (or principles, as I would call it) constitute the normative identity of the EU. This identity, in turn, is not static, but subject to further development in political and judicial practice. Article 3(3) 2 TEU mandates the EU to pursue the aim “to combat social exclusion and discrimination” and to promote social justice and protection as well as equality between men and women. These objectives are taken up in the provisions having general application to be followed in all EU policies, such as in Article 8 TFEU, which sets forth the general policy of the EU to “eliminate inequalities, and to promote equality, between men and women”; in Article 9 TFEU which declares the “fight against social exclusion” as one of these overarching aims; and in Article 10 TFEU dedicated to the combat of “discrimination based on sex, racial or ethnic origin, religion or belief, disability, age or sexual orientation”. The same mandate is valid for the foreign policy of the EU, as Article 21(1) TEU tells us by demanding that the EU, also in its external action, be guided by “the principles which have inspired its own creation” and explicitly refers to the principle of equality as one of them. That “human rights and fundamental freedoms” and “respect for human dignity” are mentioned in the same context shows that the provision makes reference to Article 2 TEU and does not merely address the equality of states. It is in that vein that the accession by the EU to the UN Convention on the Rights of Persons with Disabilities can be seen.8 At the level of specific EU competencies, the most important power today—as compared to Articles 18(2) and 157 TFEU lending bases for previous non-discrimination policies—is Article 19 TFEU which empowers the Union to enact specific legislation to further specify the principles of equality and non-discrimination. It was used for legal acts applying to the private sector such as the so-called anti-discrimination Directive of 2000 on equal treatment between persons irrespective of racial or ethnic origin; the so-called framework Directive of 2000 establishing a general framework for equal treatment in employment and occupation (prohibiting unequal treatment on grounds of religion or belief, disability, age or sexual orientation); and the so-called gender directive of 2004 implementing the principle of equal treatment between men and women in the access to and supply of goods and services.9 The fact that the ECJ extended the 8 Council Decision 2010/48/EC concerning the conclusion, by the European Community, of the United Nations Convention on the Rights of Persons with Disabilities, OJ L 23/35-36 (2010). The act of accession is based on what are today Articles 19, 114, and 300 TFEU. According to Article 43 CRPD, the Convention is also open to organisations of regional integration, which is not the case with the 1965 UN Convention on the elimination of racial discrimination and the 1979 UN Convention against discrimination of women, which are open only to states. 9 Council Directive 2000/43/EC implementing the principle of equal treatment between persons irrespective of racial or ethnic origin, OJ L 180/22-26 (2000); Council Directive 2000/78/EC establishing a general framework for equal treatment in employment and occupation, OJ L 303/16-

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scope of that latter directive to private health insurance by declaring a pertinent exception in Article 5(2) of the gender directive invalid reinforces the constitutional character of the underlying concept.10 At the constitutional level, it may, depending on the case, even trump the freedom to conclude contracts which lies at the core of the European market economy.11 We will come back to this point later (below, Sect. 3).

2.2

Content of Equality as a Constitutional Value

Let us return to Article 2 TEU and see what “equality” and “non-discrimination” mean at the level of constitutional values of the EU. Both are closely related, but operate on different levels of abstraction. “Equality” denotes the classic concept of equal treatment of citizens before the law, égalité as a constitutional principle. According to the ECJ, it is a general principle of Union law that “requires that comparable situations must not be treated differently and different situations must not be treated in the same way unless such treatment is objectively justified”.12 This principle is codified in Article 20 CFR. Non-discrimination is not explicitly mentioned as a constitutional principle of the EU in the first sentence of Article 2 TEU, but as a societal value in its second sentence. Still, it deserves to be recalled that the ECJ has considered discrimination as a violation of human dignity, as it did with regard to discrimination based on sex in a decision of 1996 (which dealt with the setoff of a transsexual)13 and in 2014 in a case involving a test for asylum seekers to prove their homosexuality as a ground for persecution.14 The requirement of respect for human rights in Article 2 TEU makes special mention of the “rights of persons belonging to minorities”. This provision was added to the list of values only during the Lisbon Conference 2007 and is inspired by the entry into force of the Framework Convention of the Council of Europe for the Protection of National Minorities of 1995, which had entered into force in 1998.15

22 (2000); Council Directive 2004/113/EC implementing the principle of equal treatment between men and women in the access to and supply of goods and services, OJ L 373/37-43 (2004), respectively, all based on Article 13 EC (today Article 19 TFEU). 10 Case C-236/09, Association belge des Consommateurs Test-Achats v Conseil des ministres (ECJ 1 March 2011). 11 Cf. Jestaedt (2005), pp. 305–327. 12 Case C-127/07, Société Arcelor Atlantique et Lorraine and Others v Premier ministre (ECJ 16 December 2008), para. 23, citing Case 106/83, Sermide v Cassa Conguaglio Zucchero (ECJ 13 December 1984), para. 28 and following case law. 13 Case C-13/94, P v S and Cornwall County Council (ECJ 30 April 1996), para. 22. 14 Case C-148/13, A, B, C et al., v Staatssecretaris van Veiligheid en Justitie (ECJ 2 December 2014), para. 65. 15 ETS No. 157.

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The context makes it clear that Article 2 TEU understands minority rights not as collective, but as individual guarantees16; the corresponding Charter provision of Article 22 CFR (“The Union shall respect cultural, religious and linguistic diversity”) is somewhat weaker in that respect. The second sentence of Article 2 TEU enumerates characteristics, which describe the societies in which the values of the Union prevail. It is in that context that pluralism, non-discrimination and equality between men and women are expressly mentioned. Some hold that these concepts were not values in themselves.17 The consequence would be that their violation could not be sanctioned, for instance in a procedure under Article 7 TEU. My interpretation would be that the terms which correspond to legal norms are illustrations of the constitutional principles in Article 2 TEU, first sentence, so that they constitute more specific sub-principles of the principle of equality. This may not be the case with pluralism as a societal concept, but it is hard to contest that non-discrimination between men and women are a constitutional, and not merely a social norm. Its constitutional character became apparent in a case with respect to equal access to occupation, the Tanja Kreil (2000) case, that even gave rise to a constitutional amendment regarding service in the German armed forces.18 Judging from comparable constitutional settings in national legal orders, it appears that non-discrimination is a specific way to make equality operative by providing a defence against unequal treatment. If this assumption is correct and non-discrimination is simply a specific mode of the principle of equality, it can be concluded that the whole catalogue of illegitimate grounds of discrimination set forth in Article 23 CFR specifies the principle of equality as subprinciples of non-discrimination: sex, race, colour, ethnic or racial origin, genetic features, property, birth, disability, age or sexual orientation.

3 Equality in the European “Private Law Constitution” As we have seen, equality has taken shape in secondary law governing the private sector. I should like to make the point that its legal significance for private law relations goes deeper than that. It extends to the value-oriented society mentioned in the second sentence of Article 2 TEU. Equal treatment guarantees of Article 23 CFR take horizontal effect (Drittwirkung), as we have seen in the Mangold and Kücükdeveci cases with regard

16

Hilf and Schorkopf (2013), para. 38 (with further reference). Id., para. 43. 18 Case C-285/98, Kreil v Bundesrepublik Deutschland (ECJ 11 January 2000); in the wake of this judgment, Article 12 a(4) of the German Grundgesetz was modified; accordingly, women must not be obliged to serve in arms, whereas such service was excluded altogether before, even on a voluntary basis. 17

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to age discrimination.19 It is no coincidence that this jurisprudence triggered responses by national judiciary on the constitutional level.20 To place equality and non-discrimination at a constitutional rank does not mean that EU legislation would be prevented from specifying the pertaining sub-principles further and from providing for grounds of justification for unequal treatment. At least, this is what the ECJ held with respect to age discrimination, if the member states pursue aims in the public interest “objectively and reasonably”, if they are recognized as such by the 2000 framework Directive.21 The story on age discrimination may repeat itself if it comes to the consequences of the recent ECJ jurisprudence on discrimination on grounds of religion, where the ECJ held in the Egenberger and IR cases that the catholic church as an employer was required to refrain from making a certain confession or behaviour guided by rules grounded in religious morals a condition for employment.22 The constitutional dimension of equality is directly linked to the origins of European integration, the intention to create a single market, where it takes the shape of a principle not only of economic law, but of private law in general. Franz Böhm referred to a “private law society” as an order of its own that is brought about by its own institutions and rules, but depends on the stabilizing forces of fundamental legal principles; accordingly, legal and societal norms are insolubly intertwined.23 The establishment of an economic “constitution” and the horizontal effect of equal treatment make it plausible to assume such a constitutional character in private law relations at the European level.24 Originally, as is well known, the philosophy of private law society was the motivating force of European competition policy, as it is reflected by Article 19 This horizontal effect of the non-discrimination principle is to be confused with the direct horizontal effect of directives, which remains excluded; see Case C-144/04, Mangold v Rüdiger Helm (ECJ 22 November 2005), para. 77; Case C-555/07, Kücükdeveci v Swedex GmbH (ECJ 19 January 2010), paras. 22 ff., 47 ff., It is controversial whether this horizontal effect is of a direct or an indirect nature, since the ECJ has limited itself to requiring that colliding domestic law be inapplicable, see Schmahl (2014), para. 168. The effect, however, is similar, see also de Mol (2011). In the cited cases, private employers must not limit the duration of contracts to time periods or calculate time limits for the termination of contracts according to the age of employees. 20 Case C-441/14, Ajos v Rasmussen (ECJ 19 April 2016), which confirmed the Mangold rationale (above, note 19). The Danish High Court declared this jurisprudence as non-binding, legislation enacted under the Danish Constitution prevailed; see Højesterett, Case 15/2014, Dansk Industri v Sucession Karsten Eigil Rasmussen, UfR 2017.824 H and comment by Holdgaard et al. (2018). 21 Case C-45/09, Rosenbladt v Oellerking Gebäudereinigungsgesellschaft (ECJ 12 October 2010), para. 45; for the framework Directive see above, note 9. 22 Case C-414/16, Egenberger v Evangelisches Werk für Diakonie und Entwicklung e. V. (ECJ 17 April 2018); Case C-68/17, IR v. JQ (ECJ 11 September 2018). 23 Böhm (1966); see the exposition of Böhm’s legal and economic philosophy by Teubner (2014); for a comprehensive account see Mestmäcker (2007); for not entirely unrelated, but in terms of legal theory more refined concepts of the societal constitution see Wiethölter (2003) and Teubner (2012). 24 Böhm himself did not go so far, even though such a conclusion would not have been a contradiction to his notion of a private law society; see Grünberger (2013), pp. 254–264; for further elaboration see Grundmann (2007).

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102 TFEU where the applying of dissimilar conditions to equivalent transactions to the detriment of other market participants from a dominant market position is considered as abusive practice and hence forbidden. Likewise, the laws of state aid and of public procurement are governed by the notion of the equality of competitors. In the decades after the Rome Treaties had entered into force, EU law has carried the concept of a private law constitution further as the common market slowly became a social reality and the Community began to reach out in other areas of law. The ECJ jurisprudence on equal pay comes to mind, which derived a right with direct horizontal effect from what is today Article 157 TFEU in the famous Defrenne case as early as 1976, before pertinent secondary law on the matter in force today was enacted.25 The reason why the principle of equal pay was already found in the original EEC Treaty of 1957, by the way, was that France had such a law and was concerned to suffer market disadvantages if other member states would not have subscribed to the same principle. The use of four freedoms (of goods, services, persons, and capital) across borders presupposes non-discrimination and internal treatment. Discrimination is explicitly prohibited for the freedom of goods (Article 36, second sentence TFEU), free movement of workers (Article 45(2) TFEU), as well as for the freedom of establishment (Articles 49(2), 54, 55 TFEU), of services (Article 61 TFEU) and of capital (Article 65(3) TFEU). As we know from the Bosman, Viking Line and Laval cases, the market freedoms are also binding on private actors if they dispose of substantial powers against other market participants.26 It is originally in that context that the prohibition of discrimination on grounds of nationality must be seen (Articles 18 TFEU, 21(2) CFI). It applies “in the scope of application” of the treaties, thus excluding protective policies in the areas where competencies had been transferred to the EC/EU. Together with union citizenship, this “scope” was gradually expanded beyond matters of economic interest. Thus, the principle of equal treatment and non-discrimination is a particularly telling example for the spill-over which the founders of the Rome Treaties had in mind. It emerged from the ideas of fair competition in a single market without internal borders and from pre-existing national labour law into the constitutional principle described above. The history runs parallel to the development of union citizenship out of the idea of a “market citizen”.27 It is no coincidence that non-discrimination and free movement is supposed to form the core of it.28

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Case 43/75, Defrenne II v Société anonyme belge de navigation aérienne Sabena (ECJ 8 April 1976). 26 Case C-415/93, Bosman v Union royale belge des sociétés de football association (ECJ 15 December 1995); Case C-438/05, Viking Line v International Transport Workers’ Federation (ECJ 11 December 2007); Case C-341/05, Laval v Svenska Byggnadsarbetareförbundet, (ECJ 18 December 2007). 27 Kadelbach (2010), pp. 445–448; for an equality case between market citizens see Case 131/73, Criminal proceedings against Giulio and Adriano Grosoli (ECJ 12 December 1973). 28 To be more precise, one of the essential elements of Union citizenship is the prohibition of discrimination because of free movement; cf. also Case C-224/98, D’Hoop v Office national de

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At that level of abstraction, in sum, one may say that equality is not only one of the constitutional principles increasingly added to the Treaty language in the course of the EU’s constitutionalization, it is, as it were, in the DNA of the European Union. To avoid misunderstandings, it is not superfluous to stress at this stage that equality of opportunities in competition has roots that are different from the human rights origins of many of the facets of equality in positive Union law.29 To trace all equality issues back to one general concept might induce us to assume that the consequences of unequal treatment and discriminatory practices always follow the same pattern. This is not the case. Still, the common underlying principle is equality as a human being and before the law, so that the principle, abstract as it may be, requires the restructuring of sectors and elements of the law along the lines of a common overarching idea. It is therefore useful to pay tribute to these caveats, if in a cursory manner, with respect to two topics, i.e. the justification of infringements and legal consequences.

4 Justification for Unequal Treatment The fact that the principle of equality takes so many shapes raises the question under which conditions unequal treatment or even particular types of discrimination may, by way of exception, be justified. Since the problem will be taken up in other contributions, some general observations may suffice. In most general terms, the ECJ has put its standard of review from early on in a formula that is also used by other courts according to which comparable situations must not be treated differently, unless such different treatment is “objectively” justified.30 Depending on the ground for discrimination at issue and on the circumstances, that yardstick has led to varying degrees of specification. Mostly, like in market freedoms and general equality, justification will be possible. However, direct discriminations, which attach disadvantageous legal consequences explicitly to prohibited grounds for unequal treatment, are less easy to justify than indirect discrimination in which not the measure in itself, but its effects are discriminatory.31 Generally speaking, the closer the chosen criterion for discriminatory practices is to human dignity and core fundamental rights of the personality,

l'emploi (ECJ 11 July 2002). This clarification helps to explain the selection of citizens’ rights in Articles 21 to 23 TFEU that refer to areas states usually reserve to their own nationals. 29 Cf., with explicit reference to Franz Böhm, Mangold (2016), pp. 68–69. 30 Joined Cases 17/61, C-20/61, Klöckner-Werke v High Authority of the European Coal and Steel Community (ECJ 13 July 1962). 31 Case-law on that distinction goes as far back as to Case 152/73, Sotgiu v Deutsche Bundespost (ECJ 12 February 1974), paras. 10–11; on direct and indirect discrimination generally Sacksofsky (2017), pp. 70–90.

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and the less influence the individual concerned has on that criterion, the weaker is the case for justification.32 Thus, indirect intrusions into market rights may be justified by reasonable considerations of public interest. Other grounds like age may be open to a narrow set of modifications which may be related to the criterion itself, such has demands of work which elder employees cannot easily fulfil. Characteristics like ethnic origin, sex or sexual orientation, to name examples from the other end of the spectrum, are essentials of personality and cannot be chosen at will, so that justification for unequal treatment is highly implausible, if not excluded.33

5 Legal Consequences of Violations The legal consequences of unjustified unequal treatment are distinctly sectorspecific, depending on the special norm that was violated. Generally speaking, violations of equality laws necessitate to end the discriminating conduct. That may mean that intrusive measures are inapplicable, as it is often the case in discriminatory regulations violating single market freedoms. If unequal treatment results in exclusion from payments or services, the legislator has to provide for new law, be it that the disadvantaged group is now included into the benefits or that the whole regulatory scheme is reformed, as it is typically the case in tax and social welfare laws. In the private sector, prima facie discrimination on specific grounds entails a shifting of the burden of proof and sanctions.34 According to the jurisprudence of the ECJ, such sanctions must be effective, dissuasive, and proportionate, so that national legislation is under an obligation to include non-discrimination law in an appropriate framework of compensation.35 To special areas of law like public procurement and competition law, specific legal consequences apply. Systemic violations of the non-discrimination principle are the most difficult to deal with. If a member state as a whole embarks upon policies of discrimination (and

32

Cf. Case C-83/14, CHEZ Razpredelenie Bulgaria v Komisia za zashtita ot diskriminatsia (ECJ 16 July 2015), para. 112 (direct discrimination based on ethnic origin). 33 For the legal test to be applied see the contribution by Justyna Malszenska-Nienartowicz in this volume. 34 For examples see Case C-54/07, Feryn v Centrum voor gelijkheid van kansen en voor racismebestrijding (ECJ 10 July 2008), paras. 25–40 (ethnic origin); Case C-81/12, Asociaia Accept v Consiliul Naţional pentru Combaterea Discriminării (ECJ 25 April 2013), paras. 60–73 (sexual orientation). 35 Case 14/83, von Colson and Kamann v Land Nordrhein-Westfalen (ECJ 10 April 1984), para. 23; Case 177/88, Dekker v Stichting Vormingscentrum voor Jong Volwassenen (ECJ 8 November 1990), para. 23; it is not required that national law provides for the award of punitive damages, see Case C-407/14, Arjona Camacho v Securitas Seguridad España SA (ECJ 17 December 2015), para. 43.

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there are examples), the arsenal of legal consequences which apply to states falling short of requirements of the rule of law is in question: infringement procedures under Article 258 TFEU, possible financial consequences under structural or other EU subsidies policies, or the rule of law procedure and Article 7 TEU. That does not rule out the possibility that non-discrimination law may be a tool to counter such tendencies at a lower scale, as the examples of the laws against age discrimination in the case of the retirement rules for members of the Hungarian and Polish constitutional judiciaries illustrate.36

6 Conclusion Equality and non-discrimination are principles which form part of the constitutional identity of the European Union and its society. They are guiding principles for the political system and the rule of law for the EU and its member states. They are also characteristic of the European private law constitution: There can be no freedom without equality in law, neither before public authorities, nor in the single market and in daily life. Anti-discrimination law and the private law constitution mutually reinforce each other with the common objective of enabling each individual citizen to unfold her or his potential.37 It is this underlying rationale to which the European Union, like states for that matter, owes its legitimacy.

References Böhm, Franz. 1966. Privatrechtsgesellschaft und Marktwirtschaft. ORDO 17: 75–151. De Mol, Mirjam. 2011. The Novel Approach to the CJEU on the Horizontal Effect of the EU Principle of Non-Discrimination: (Unbridled) Expansionism of EU Law? Maastricht Journal 18: 109–135. Giegerich, Thomas. 2003. Europäische Verfassung und deutsche Verfassung im transnationalen Konstitutionalisierungsprozess: wechselseitige Rezeption, konstitutionelle Evolution und föderale Verflechtung. Berlin: Springer. Grünberger, Michael. 2013. Personale Gleichheit. Der Grundsatz der Gleichbehandlung im Zivilrecht. Baden-Baden: Nomos. Grundmann, Stefan. 2007. Europa- und wirtschaftsrechtliche Grundlagen der “Privatrechtsgesellschaft”. In Privatrechtsgesellschaft, ed. Karl Riesenhuber, 105–130. Tübingen: Mohr Siebeck.

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Case C-286/12, Commission v Hungary (ECJ 6 November 2012); the constitutional dimension is directly addressed in Case C-619/18, Commission v Poland (ECJ 11 April 2019). One might argue that non-discrimination policies are (mis)used as a means to an end in those cases; that argument, it is submitted, would not affect the conclusion that early retirement because of the belonging to a defined generation amounts to age discrimination and hence to an infringement of the personal rights of the judges concerned. 37 Cf. Mangold (2016), pp. 289–312.

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Hallstein, Walter, et al. 1969. Der unvollendete Bundesstaat. Europäische Erfahrungen und Erkenntnisse. Vienna: Econ. Hilf, Meinhard, and Frank Schorkopf. 2013. Art. 2 [Grundlegende Werte]. In Das Recht der Europäischen Union, ed. Eberhard Grabitz, Meinhard Hilf, and Martin Nettesheim. Munich: Beck. Holdgaard, Rass, Daniella Elkan, and Gustav Krohn Schaldemose. 2018. From Co-Operation to Collision: The ECJ’s Ajos Ruling and the Danish Supreme Court’s Refusal to Comply. CML Review 55: 17–53. Jacqué, Jean Paul. 2015. Artikel 2 [Grundlegende Werte]. In Europäisches Unionsrechts, ed. Hans von der Groeben, Jürgen Schwarze, and Armin Hatje, 65–70. Baden-Baden: Nomos. Jestaedt, Matthias. 2005. Diskriminierungsschutz und Privatautonomie. Veröffentlichungen der Vereinigung der Deutschen Staatsrechtslehrer 64: 298–354. Kadelbach, Stefan. 2007. Autonomie und Bindung der Rechtsetzung in gestuften Rechtsordnungen. Veröffentlichungen der Vereinigung der Deutschen Staatsrechtslehrer 66: 7–44. ———. 2010. Union Citizenship. In Principles of European Constitutional Law, ed. Armin von Bogdandy and Jürgen Bast, 443–478. Oxford: Hart. Mangold, Anna Katharina. 2016. Demokratische Inklusion durch Recht. Antidiskriminierungsrecht als Ermöglichungsbedingung der demokratischen Bedingung von Freuen und Gleichen. PhD Thesis (habilitationsschrift), Frankfurt am Main (forthcoming, manuscript on file with the author). Mayer, Franz. 2017. Die Europäische Union als Rechtsgemeinschaft. Neue Juristische Wochenschrift 70: 3631–3638. Mestmäcker, Ernst Joachim. 2007. Franz Böhm (1985–1977). In Deutschsprachige Zivilrechtslehrer des 20. Jahrhunderts in Berichten ihrer Schüler Band 1, ed. Stefan Grundmann and Karl Riesenhuber, 31–56. Berlin: De Gruyter. Pernice, Ingolf. 2001. Europäisches und nationales Verfassungsrecht. Veröffentlichungen der Vereinigung der Deutschen Staatsrechtslehrer 60: 148–193. Peters, Anne. 2001. Elemente einer Theorie der Verfassung Europas. Berlin: Duncker & Humblot. Sacksofsky, Ute. 2017. Was heißt: Ungleichbehandlung “wegen”? In Gleichheitsdogmatik heute, ed. Simon Kempny and Philipp Reimer, 63–90. Tübingen: Mohr Siebeck. Schmahl, Stefanie. 2014. Gleichheitsgarantien. In Enzyklopädie Europarecht, Vol. 2: Europäischer Grundrechtsschutz, ed. Christoph Grabenwarter, 551–633. Baden-Baden: Nomos. Teubner, Gunther. 2012. Verfassungsfragmente: Gesellschaftlicher Konstitutionalismus in der Globalisierung. Berlin: Suhrkamp. ———. 2014. Wirtschaftsverfassung oder Wirtschaftsdemokratie? Franz Böhm und Hugo Sinzheimer jenseits des Nationalstaates. In 100 Jahre Rechtswissenschaft in Frankfurt, ed. Fachbereich Rechtswissenschaft der Goethe-Universität Frankfurt am Main, 395–534. Frankfurt: Klostermann. Wiethölter, Rudolf. 2003. Recht-Fertigungen eines Gesellschafts-Rechts. In Rechtsverfassungsrecht. Recht-Fertigung zwischen Privatrechtsdogmatik und Gesellschaftstheorie, ed. Christian Joerges and Gunther Teubner, 13–21. Baden-Baden: Nomos. Zuleeg, Manfred. 1994. Die Europäische Gemeinschaft als Rechtsgemeinschaft. Neue Juristische Wochenschrift 47: 545–549.

Equality and Non-Discrimination as an Integral Part of the EU Constitutional Identity Ana Maria Guerra Martins

Contents 1 2 3 4

Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Disputable EU’s Constitutional Nature . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . EU’s Constitutional Identity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . The Constitutional Identity of EU Member States as a Reaction to the EU Extension of Powers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.1 The Founding Treaties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.2 Case Law of the Constitutional Courts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.3 The EU Constitutional Identity and the Progressive Constitutionalization of the EU 4.3.1 European Identity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.3.2 The Emergence and Development of the EU Constitutional Identity . . . . . . . . 5 Equality and Non-discrimination as an Essential Element of the EU Constitutional Identity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.1 Some Remarks on the Definition of Equality and Non-discrimination in EU Law . . 5.2 Brief Overview of the Evolution of Equality and Non-discrimination in EU Law . . . 5.3 Role Played by Equality and Non-discrimination in the European Constitutionalism 6 Some Concluding Remarks . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

26 27 29 30 30 32 35 35 35 37 38 39 41 41 42

Abstract The purpose of this article is to discuss whether equality and non-discrimination form part of the EU constitutional identity. After noting that the point of departure of the article is the theory of constitutionalism beyond the State, as well as the assumption that the EU and EU law are constitutional in nature, the author proceeds with the debate on the antecedents of the EU constitutional identity. After inquiring whether a Member State constitutional identity is the same as national identity, the author argues that, independently of the response to this question, both concepts perform the function of a brake on the absolute primacy of

I would like to thank Prof. Thomas Giegerich, Jean Monnet Chair, and his team for having invited me to the symposium on the European Union as Protector and Promoter of Equality. A. M. Guerra Martins (*) University of Lisbon, Faculty of Law, Lisbon, Portugal © Springer Nature Switzerland AG 2020 T. Giegerich (ed.), The European Union as Protector and Promoter of Equality, European Union and its Neighbours in a Globalized World 1, https://doi.org/10.1007/978-3-030-43764-0_3

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EU law over domestic law, as well as on the transfer of powers, which calls into question the very statehood of the Member State. This article argues that, the EU constitutional identity, in spite of its indeterminacy, vagueness and complexity, comprises common origins, common values, a common destiny and common features that differentiate the EU from other entities. Although the common origins mainly emerged from the negation of Nazism and Soviet communism, and its common destiny is rather uncertain, there is no doubt that the EU has an axiological basis and that it has certain characteristics that differentiate it from the rest of the world. One of these features concerns the respect for equality and non-discrimination as well as the respect and promotion of fundamental rights. The article concludes that equality and non-discrimination are an integral part of the EU’s constitutional identity to the precise extent they are simultaneously values and objectives of the EU.

1 Introduction The purpose of this study is to discuss whether equality and non-discrimination form an integral part of the EU constitutional identity. Although both elements—equality and non-discrimination, on the one hand, the EU constitutional identity, on the other—have separately dominated EU rhetoric for the past last decade, studies facing ex professo both topics together are extremely rare, although the richness and interest of the subject is beyond question. In fact, European integration has been anchored since its very inception in equality and non-discrimination, while the scholarly’ debates on the constitutional nature of the EC/ EU are intrinsically linked to the EU constitutional identity. Particularly after the Treaty of Maastricht, the controversy over the EU constitutional nature gained ground, so that the issue of the EU’s constitutional identity won more proponents. The case law of the Court of Justice of the European Union (CJEU) is also heavily influenced by this topic. Aiming to understand what is at issue, the first section of this article briefly outlines the constitutional nature of the EU and its legal order. The second section seeks to present a comprehensive notion of the EU constitutional identity. Starting with an introduction on Member State constitutional identity and national identities, it proceeds to a discussion of European identity and on the EU constitutional identity. The article then draws attention to the difficulties that such a notion faces in an international entity such as the EU, which is not technically a State. The third section, which deals with equality and non-discrimination, begins with a brief historical overview of equality and non-discrimination in EU law, and proceeds to inquire into the role played by both notions within the scope of EU law. This also involves discussion of the impact of equality and non-discrimination on the interpretation and application of EU law. Lastly, as a concluding remark, this article addresses the question whether and to what extent equality and non-discrimination constitute an integral part of the EU constitutional identity.

Equality and Non-Discrimination as an Integral Part of the EU Constitutional. . .

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2 Disputable EU’s Constitutional Nature From the outset we stress that the discussion on the EU constitutional identity presupposes an acceptance of the EU’s constitutional nature. As this question is rather disputable, and while this study is hardly the most appropriate place to elaborate on this topic, we have, however, to briefly clarify the premises from which we depart. Regarding the premises from which the analysis proceeds, in an earlier book,1 we argued that certain theoretical categories, such as international organization, the federal state or confederation, customarily used to describe the EU, are not necessarily the most apt. As a matter of fact, there is no international organization2 in the world with such a broad set of objectives and powers as the EU, with an organic structure so independent of the Member States and with a Parliament, elected by the citizens throughout universal, direct and secret suffrage. There is no international organization that intervenes so far into the daily life of the citizen, since many legal rules produced by its institutions and organs apply directly to the citizen without mediation of the State, and even prevail over domestic law. There is further no international organization in the world with such an efficient system of judicial control. Hence, it is almost impossible to categorize the EU as an international organization (in the conventional sense). Having said that, it is important to note that, while the EU is far more than a traditional international organization, it is at the same time less than a State. Consequently, all attempts to confine the EU within the category of the federal state also fail. First, the definition of federal state is anything but clear, given the myriad differences between their individual features. At the same time they share certain features in common. First, they are formally recognized as States. Second, they are based on a constitution, which may be amended by a simple majority of the Parliament. Third, they share a currency, a defence policy and an external/foreign policy. In addition, it is impossible to withdraw from a federal state. By contrast, the EU is not a State. Formally speaking, it is not based on a constitution, but on an international treaty. The monetary policy and the euro do not apply to all Member States, the defence policy is largely a power of the Member States and even the external foreign policy is only partially located centrally in the EU. Hence, it is impossible to label the EU as a federal State. Similar arguments apply for the category of confederation. In fact, the EU is organically speaking considerably more developed than a confederation, in that it has more powers. The role of the State is quite different within a confederation than within the EU, while judicial control of the legal acts effected by a confederation is almost non-existent, whereas in the EU it is rather developed.

1 2

Martins (2017), pp. 244 ff. It must be underlined that the definition of international organization is anything but consensual.

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Summing up, the EU is a unique international entity that falls outside the traditional international or domestic categories. Therefore, it is necessary to conceive a new category outside the international and the domestic law. In our view, this new category must be conceived within the scope of a constitutionalism beyond the State and presupposes abandoning the Westphalian paradigm and simultaneously the acceptance and conceptualization of the post-Westphalian world. The EU is a new form of compound entity, created by its Member States, whose authority derives firstly from those States and secondly from its citizens. The EU does not intend to— and actually cannot—eliminate the authority of its Member States. By contrast, it is based on the ideas of cooperation, mutual influence and interdependence.3 In short, the EU is a multilevel constitutional4 and political entity, as the present author has argued since 2000.5 The current EU founding treaties, and the former EC founding treaties, or at least their basic provisions, are of a substantially constitutional nature, for the following reasons: • they contain a set of rules and principles concerning, inter alia, the aims of the Union, which in many aspects coincide with the aims of the State, its values, including human dignity, the rule of law, democracy and respect for human rights—in short, the values of the European democracies. • the human being plays a determinant role in the EU, either as citizen or as holder of fundamental rights directly derived from EU legal provisions. • the institutional system represents the Member States and the citizens, seeking a balance between all of the institutions and powers. • the Court of Justice is the ultimate guarantor of EU law, including fundamental rights. • the relationship between EU law and the internal law of Member States is based on the principles of primacy, direct effect and direct applicability, which contribute to place the human being at the centre of the European project, as well as to enhance the interaction and interdependence between both legal dimensions. Some scholars have long sought to integrate the European Communities and the European Union and their respective treaties into a broader constitutional theory that could not be anchored uniquely in the State. New concepts, such as transnational constitutionalism,6 constitutional pluralism,7 multilevel constitutionalism,8 or more

3

Pernice (2009), p. 383. Martins (2016), pp. 33 ff. 5 Martins (2016), pp. 303 ff. 6 Neves (2009), pp. 83 ff. 7 Avbelj and Komárek (2012); Weiler (2012), pp. 8 ff.; Halberstam (2012), pp. 150 ff.; Krisch (2012), pp. 203 ff.; Poiares Maduro (2006), pp. 15 ff. 8 Above all Pernice (2015), pp. 541 ff.; Idem (2009), pp. 349–407; Idem (2002), pp. 511–529; Idem (1999), pp. 707 ff. 4

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recently global constitutionalism9 have emerged and have rapidly circulated, not without criticism from those who remain wedded to State constitutionalism.10 In our view, at the very inception of the European integration process, the European Communities could be defined as an association of States. Notwithstanding, the Communities had evolved, and this label no longer completely corresponded to the reality. After the Treaty of Maastricht, and particularly after the Treaty of Lisbon, the component of the citizen acquired such relevance that it is impossible to exclude the citizen from the constitutional nature of the EU. As a consequence, in our view, the most accurate definition for the EU is a union of States and citizens with a constitutional dynamic.11 More could be said about the constitutional nature of the EU, but the confines of this study do not permit it. If the EU is constitutionally conceivable, that implies that the EU must have certain constitutional features that at once identify it and at the same time differentiate it from other entities. In turn a constitutional nature presupposes a constitutional identity.

3 EU’s Constitutional Identity It is interesting to note that the disputes on Member State constitutional identity and on the EU constitutional identity run in parallel and are deeply connected to entry into force of the Treaty of Maastricht. Due to the enlargement of the political component of European integration provoked by this Treaty and its successive amendments, the EU needed to discover a constitutional basis to legitimate its new powers.12 This basis could be a form of identity that differentiates Europe from other parts of the world. Furthermore, the enlargement of EU powers and the consequent threat to Member State sovereignty led them to claim, at times exaggerated, to their constitutional identity, with the aim of preserving the immutability of their separate statehood. In other words, the narrative of the EU constitutional identity, which is based on European identity, and the narrative of Member State constitutional identities, itself founded on the national identity/identities of the Member States, should be regarded as a response to EU evolution over the last two decades, as well as compensation for the perceived loss of sovereignty on the part of the Member States.

9

Walker (2012), pp. 17 ff. Barents (2012), pp. 153 ff. 11 Martins (2017), pp. 229 ff. 12 Belov (2017), p. E-74; Faraguna (2017a), pp. 1618 ff. 10

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4 The Constitutional Identity of EU Member States as a Reaction to the EU Extension of Powers 4.1

The Founding Treaties

Prior to the Treaty of Maastricht, hardly any references were to found in primary EU law either to constitutional identity/identities or to national identity/identities of the Member States. The first explicit reference was introduced into the Treaty of Maastricht, whose Article F (1) TEU provided “the European Union shall respect the national identities of its Member States, whose systems of government are founded on democratic principles”. The reverse implication was that the EU was under no obligation to respect the national identity of States that are not considered to be based on democratic principles. This provision should be evaluated as a concession to those Member States that opposed the creation of the European Union and the introduction of the EU citizenship into the treaties.13 Although the treaties provided no definition of national identity/identities, some argue that the notion might be conceived in a political and constitutional sense,14 whereas others rejected this idea.15 Even without taking a clear view in this discussion, it can be said that the national identity at least paved the way for the concept of constitutional identity. The Treaty of Amsterdam changed Article F, which became Article 6 TEU. A new paragraph was added, which read: 1. The Union is founded on the principles of liberty, democracy, respect for human rights and fundamental freedoms, and the rule of law, principles which are common to the Member States.

Article F (1) became Article 6 (3) and was shortened as follows: The European Union shall respect the national identities of its Member States.

The Amsterdam version apparently left aside the condition that the respect of the national identities of the Member States’ systems of government is to be based on the democratic principles. Nevertheless, the Treaty of Amsterdam enlarged the conditions that the Member States have to respect (see the new paragraph of Article 6 TEU) in order to ensure the respect for their national identities by the EU. The Treaty Establishing the Constitution for Europe (TECE), which directly inspired the Treaty of Lisbon, constitutes another milestone in the formation of definition and content of the EU Member States’ constitutional identity. As the wording of the both treaties is broadly similar, citing the Lisbon’s version is sufficient. Article 4 (2) TEU states:

13

Cruz Villalón (2013), p. 503. Cruz Villalón (2013), p. 503. 15 Cloots (2016), pp. 82 ff. 14

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2. The Union shall respect the equality of Member States before the Treaties as well as their national identities, inherent in their fundamental structures, political and constitutional, inclusive of regional and local self-government. It shall respect State, maintaining law and order and safeguarding national security. In particular, national security remains the sole responsibility of each Member State.

The Treaty of Lisbon, focusing on state structures, expressly emphasized the constitutional strand of national identity.16 After entry into force of the Treaty of Lisbon, the constitutional identity of the EU’s Member States began to be assessed not only within the scope of domestic law, but rather in the context of the EU law.17 Notwithstanding, the indeterminacy, vagueness and complexity of the definition of national identity and constitutional identity,18 as well as its recent, polysemic, ambiguous and mutable character,19 make its study rather difficult. For some scholars, national identity and constitutional identity are not identical, just as the notions of nation, State and constitution are not similar.20 In fact, if national identity is taken in a linguistic, ethnic, religious and cultural sense rather than in a politico-constitutional sense, national and state identity do not coincide in many States. Some EU Members States are multinational, such as Spain and the UK.21 For those who treat national identity and constitutional identity strictly from the perspective of the European treaties, a first line of argument is that national identity is the same as State identity, that means constitutional identity,22 whereas another line differentiates one from another.23 A third line is to argue that the treaties conflate national identity with sovereignty, so that first expression is used so as to avoid the second.24 As a result of these divergences, there are multiple definitions of national identity and constitutional identity. This paper will delve deeper into this issue, although the constitutional identity of the EU Member States is of interest from a strictly functional perspective, i.e. merely to the extent that it can contribute to clarify the EU constitutional identity. Accordingly, some significant definitions are left aside, such as those related to the USA constitution.25 In view of the difficulties of achieving a consensual definition, the idea may be borrowed from Fabbrini/Pollicino26 as inspired by Van der Shyff 27 that

16

Besselink (2010), p. 44; contra Cloots (2016), pp. 83 ff. Walter (2012), p. 181. 18 Faraguna (2017a, b), p. 1622. 19 Polzin (2017), p. 1597. 20 Manasyan (2018), p. 89. 21 Besselink (2010), p. 42. 22 Cruz Villalón (2013), p. 504. 23 Besselink (2010), p. 44. 24 Cloots (2016), pp. 86 ff. 25 Rosenfeld (2012), pp. 756 ff.; Jacobsohn (2006), pp. 361 ff. 26 Fabrini and Pollicino (2017), p. 1. 27 Van der Shyff (2016), p. 169. 17

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constitutional identity means “the core or fundamental elements or values of a particular member’s state constitutional order as an expression of its individuality” of a given constitutional system. This idea does not necessarily embrace the originality and uniqueness of constitutional identity, nor its exclusivity.28 This notion is still evolving and is heavily influenced by the case law of national courts and of the CJEU. As a matter of fact, before entry into force of the Treaty of Lisbon, the idea of the EU Member States’ constitutional identity already played an important role in the case law for the domestic (supreme / constitutional) courts. Finally, it is worth noting that constitutional identity is not an unequivocal concept; but rather may vary from one State to another.29

4.2

Case Law of the Constitutional Courts

If the French Constitutional Council was the first high level national court that mentioned the constitutional identity of France in its case law,30 the German Federal Constitutional Court (Bundesverfassungsgericht) (BVerfG) has been the true architect of the concept.31 Although former judgments, such as Maastricht judgment,32 and even Solange I and II33 implicitly took into consideration the idea of constitutional identity, the master piece on this issue is undoubtedly the Lisbon judgment.34 In this decision, the German Federal Constitutional Court extensively elaborated on the German constitutional identity and even enunciated the domains that were comprised therein. The BVerfG, after asserting that “European unification on the basis of a treaty union of sovereign states may, however, not be achieved in such a way that not sufficient space is left to the Member States for the political formation of the economic, cultural and social living conditions”, then indicated that “this applies in particular to areas which shape the citizens’ living conditions, in particular the private sphere of their own responsibility and of political and social security, protected by fundamental rights, as well as to political decisions that rely especially on cultural, historical and linguistic perceptions and which develop in public discourse in the party political and parliamentary sphere of public politics. Essential areas of democratic formative action comprise, inter alia, citizenship, the civil and the military monopoly on the use of force, revenue and expenditure including

28

Manasyan (2018), p. 81. Walter (2012), p. 181. 30 CC Decision No. 2006-540 DC of 27 July 2006. 31 Ingolf (2015), pp. 1 ff. 32 BVerfG 89, 155 (Maastricht). 33 BVerfG 37, 271 (Solange I); BVerfG 73, 339 (Solange II). 34 BVerfG 123, 267 (Lissabon). 29

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external financing and all elements of encroachment that are decisive for the realization of fundamental rights, above all in major encroachments on fundamental rights such as deprivation of liberty in the administration of criminal law or placement in an institution. These important areas also include cultural issues such as the disposition of language, the shaping of circumstances concerning the family and education, the ordering of the freedom of opinion, press and association and the dealing with the profession of faith or ideology” (§ 249). In the face of harsh scholarly criticism,35 some months later, the BVerfG in the Honeywell judgment,36 was more restrained regarding the content of the German constitutional identity, and stepped back somewhat from its previous position stating: a) Ultra vires review by the Federal Constitutional Court can only be considered if a breach of competences on the part of the European bodies is sufficiently qualified. This is contingent on the act of the authority of the European Union being manifestly in breach of competences and the impugned act leading to a structurally significant shift to the detriment of the Member States in the structure of competences. b) Prior to the acceptance of an ultra vires act, the Court of Justice of the European Union is to be afforded the opportunity to interpret the Treaties, as well as to rule on the validity and interpretation of the acts in question, in the context of preliminary ruling proceedings according to Article 267 TFEU, insofar as it has not yet clarified the questions which have arisen. To ensure the constitutional protection of legitimate expectations, it should be considered, in constellations of retroactive inapplicability of a law as a result of a ruling by the Court of Justice of the European Union, to grant compensation domestically for a party concerned having trusted in the statutory provision and having made plans based on this trust.

In this case the BVerfG explicitly concedes that, before declaring the unconstitutionality of an ultra vires act, it must refer to the CJEU. Afterwards, the BVerfG continued developing the concept of German constitutional identity, for instance, in the Gauweiler case.37 German constitutional case law influenced other national constitutional courts, which had to deal with the contours of the national constitutional identity.38 For example, the Czech Constitutional Court, in its preliminary control of the constitutionality of the Lisbon Treaty, relied on the notion of identity with the aim of drawing the boundaries of European integration. More recently, the Italian Constitutional Court used, the words “constitutional identity” for the first time in the Taricco cases,39 in the context of the relationship between the domestic courts and the EU legal orders.40

35

For instance Pernice (2011), pp. 355 ff.; Thym (2009), pp. 1795 ff. BVerfG BvR 2006/06 (Honeywell). 37 BVerfG BvR 2728/13 (Gauweiler); for a comment on this decision see Ludwigs and Sikora (2018), pp. 127 ff.; Pliakos and Anagnastaras (2017), pp. 214 ff.; Faraguna (2017a, b), pp. 567 ff. 38 Claes and Reestman (2015), pp. 917 ff. 39 Italian CC Order n. 24/2017. 40 Fabrini and Pollicino (2017), p. 2; Bonelli (2018), pp. 357 ff. 36

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In this admittedly selective analysis of constitutional and supreme court cases linked to EU Member States constitutional identity,41 the cited cases illustrate effectively the duality of functions performed by the notion of EU Member State constitutional identity. From the perspective of the States, it serves not only to limit the absolute primacy of EU law over domestic law, in that the primacy of EU law yields to the State constitutional identity, but also to function as a brake or restraint on further transfers of powers to the EU. However, the braking function only applies to the essential core of the constitutional identity of a certain State. State identity cannot be invoked to prevent a transfer of competences to the EU merely on the grounds of loss of statehood.42 Before proceeding, it may be investigated whether the CJEU equally applies the concept of Member State constitutional identity in its case law. In fact, the CJEU overcomes absolute primacy by conceding that the national identity functions as a means to introduce domestic restrictions on the application of EU law, based on Article 4 (2) TEU. At times, however, it is not entirely clear whether this is due to the Member States constitutional identity or is rather a version of the ‘margin of appreciation’ doctrine.43 In our opinion, when the Member States have invoked their constitutional identity, even if the CJEU does not use those words, it applies the constitutional identity doctrine. The Court has already accepted that the respect and promotion of human dignity,44 the protection and promotion of national languages,45 the principle of republic,46 the federal structure47 and the allocations of competences between the federal state and the federated states48 are part of the constitutional identity of certain States.49 It is interesting to note that, from the perspective of the CJEU, the EU Member States’ constitutional identity only functions within the context of the relationship between EU law and domestic law. However, the reasons that led the CJEU to accept the constitutional identity of the EU Member States as a form of a standstill clause are more related to the need to accommodate the diversity of the Member States within the unity of the EU than to safeguard a core set of values and principles as an

41

For further reading see Claes and Reestman (2015), pp. 941 ff. Von Bogdandy and Schill (2011), pp. 1430 ff. 43 Balaguer Calléjon (2017), pp. 14 ff. 44 Case 36/02, Omega Spielhallen- und Automatenaufstellungs-GmbH v Oberbürgermeisterin der Bundesstadt Bonn (ECJ 14 October 2004). 45 Case391/09, Malgožata Runevič-Vardyn and Łukasz Paweł Wardyn v Vilniaus miesto savivaldybės administracija and Others (ECJ 12 May 2019; Case C-202/11, Anton Las, ECLI: EU:C:2012:456 (April 16, 2013). 46 Case 208/09, Ilonka Sayn-Wittgenstein v Landeshauptmann von Wien (ECJ 22 December 2010); Case 438/14, Nabiel Peter Bogendorff von Wolffersdorff v Standesamt der Stadt Karlsruhe, Zentraler Juristischer Dienst der Stadt Karlsruhe (ECJ 2 June 2016). 47 Case 156/13, Digibet Ltd, Gert Albers v Westdeutsche Lotterie GmbH & Co. OHG (ECJ 12 June 2014); Case 51/15, Remondis v Region Hannover (ECJ 21 December 2016). 48 See Digibet. 49 Polzin (2017), pp. 1066–1067. 42

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expression of Member State individuality. Conversely, the constitutional identity of the EU Member States does not function as a restraint on further transfers of competences to the EU. In other words, whereas the Member States invoke their constitutional identity aiming to preserve the essence and individuality of their constitutional systems, the EU seems to accept the constitutional identity of its Member States as a characteristic of its composite character.50

4.3 4.3.1

The EU Constitutional Identity and the Progressive Constitutionalization of the EU European Identity

While the Treaties make no mention of the notion of EU constitutional identity, another notion—that of European identity—has formed part of the lexicon of European integration since its very beginning. European identity was referred to in certain political declarations, such as the Declaration of Copenhagen of 1973, and as from the Treaty of Maastricht it was included in the wording of the Treaties. The Preamble to the European Convention on Human Rights asserts that like-minded governments of European countries with a common heritage of political traditions, ideals, freedom and the rule of law, are to take the first steps for the collective enforcement of certain rights stated in the Universal Declaration. Inspired by this, the European identity comprises a degree of common cultural heritage, involving common origins, common ideals and common culture. However, European identity does not mean European unicity. By contrast, one of the most visible features of Europe is its diversity. For instance, the many languages that exist in Europe could be seen as a threat to European identity, but also as contributing to its enrichment. European identity is basically cultural, philosophical and sociological whereas a constitution is a legal notion. However, the constitution of the EU must be based on a form of identity that differentiates Europe from the rest of the world, including the USA. To sum up, the EU constitutional identity might be based on European identity, but they are distinct concepts.

4.3.2

The Emergence and Development of the EU Constitutional Identity

As EU constitutionalism flourished, it was necessary to find a theoretical basis that permits justification of this new reality and this basis was provided by the EU constitutional identity.

50

Von Bogdandy and Schill (2011), pp. 1447 ff.

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Contrary to the Member State constitutional identity, which under various denominations has pre-occupied doctrine and jurisprudence since the sixties, and has deepened within the last two decades, the notion of a EU constitutional identity has emerged and developed over the last decade as a novel concept still in progress of crystallisation. The CJEU first laid down guidelines on this issue in the 2008 Kadi judgment,51 in which the Court referred to a notion that can be identified as the EU constitutional identity, asserting that “no circumstances permit any challenge to the principles that form part of the very foundations of the Community legal order; one of which is the protection of fundamental rights, including the review by the Community judicature of the lawfulness of Community measures as regards their consistency with those fundamental rights” (§ 304). According to Rosenfeld, “the EU’s experience does afford a basis for useful reflection regarding the possibility of sketching a viable supranational constitutional identity. (. . .) one can identify several aspects of a common EU identity: common origins, common values, common destiny, and a common differentiation from American identity”.52 As a matter of fact, the European Communities and subsequently the EU emerged as a reaction against the Second World War, the perceived violation of human rights by the Soviet Regime, and the associated intolerance. In other words, the European constitutional identity was born and founded on a repudiation of Nazism and Soviet communism, as well as on the need to create a political order that would minimize the chances of any return to totalitarian regimes. That means the EC and EU were built more on a negative basis than a positive one. This prompts the question whether such a basis is sufficiently strong to represent the common origins of the EU. By contrast, there is no doubt that the EU has been conceived as a ‘community of values’. The former EC and the current EU indeed have an axiological basis, which is nowadays described in Article 2 TEU. The present author has elaborated on this provision in earlier studies.53 Accordingly we simply emphasize here that the EU is founded, inter alia, on the value of equality. This is common to its Member States in a society in which non-discrimination and gender equality prevail. More contentious, however, is to postulate the existence of ‘a community of destiny’ in Europe. Paraphrasing Rosenfeld, “[w]hether a genuine European constitutional identity and a European constitutional model will emerge depends on the EU’s will and capacity to generate a genuine constitutional practice and culture— which is very much an open question.”.54 In our opinion, despite the huge economic achievements, politically the EU still seeks a common future.

51 In Joined Cases 402/05 P and 415/05 P, Yassin Abdullah Kadi and Al Barakaat International Foundation (ECJ 3 September 2008). 52 Rosenfeld (2012), p. 774. 53 Martins (2011), pp. 47 ff. 54 Rosenfeld (2012), p. 775.

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Furthermore, EU evolution has been anything but linear. The past shows that the EU is prone to periods of forward movement succeeded by periods of retrenchment or retraction. More surprisingly, supposedly backward steps can at times turn into progressive steps forward. For example, the deceptive European Single Act of 1986 prompted one of the most exciting periods of European integration. More recently, the Brexit affair, instead of producing a domino effect, has contributed to unifying the Member States around a negotiation strategy with the UK, in which has seen the remaining Member States apparently talking with one voice. Naturally these two examples are insufficient to justify a view that the EU is engaged in building a common destiny, because a degree of uncertainty persists in this regard. Apart from certain common origins, undisputable common values, and a still crystallising common destiny, the EU constitutional identity presupposes a common differentiation from other identities, including from America. In our opinion, this differentiation exists, particularly in terms of the respect accorded to human rights. For example the death penalty, while abolished in all EU Member States is still practiced in some States of the USA. As regards social rights, in spite of the 2008 financial crisis, welfare remains a prime objective of the EU, while social rights hardly exist in other parts of the world, including the USA. Finally, respect for and protection of the environment, a cause of major concern in the EU, tends to be ignored by other members of the international community, including the USA. Concluding, in comparison with the rest of the world, the EU offers considerable cause for optimism and the attractiveness of the EU model is beyond question. However, it remains impossible to state unreservedly that the EU is based on a constitutional identity. Uncertainty regarding the future in many domains prevents the full construction of the EU constitutional identity. Nevertheless, contrary to Member State constitutional identity that functions as a brake or restraint on EU law, the EU constitutional identity functions as a catalyst of European integration.

5 Equality and Non-discrimination as an Essential Element of the EU Constitutional Identity Presupposing acceptance of the constitutional nature of the EU and of its legal order, and admitting the existence of a constitutional identity, albeit as yet uncrystallised, the question raised in the beginning of this study may be addressed, of whether equality and non-discrimination are an integral part of the EU constitutional identity. The spontaneous response seems obviously positive, in that according to modern constitutionalism, every political entity is bound to respect equality and non-discrimination. Thus as a political entity, the EU must respect equality and non-discrimination as an essential element of its constitutional identity.

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This statement needs some clarification, however, as equality and non-discrimination entered into the EU law not for constitutional or political reasons but rather for economic ones. Accordingly we proceed with a brief overview of the definition, evolution and role played by equality and non-discrimination in EU law. As we have already dealt with these topics in an earlier book55 and due to space restrictions, the present study will be rather compressed.

5.1

Some Remarks on the Definition of Equality and Non-discrimination in EU Law

It is worth pointing out that the Treaties contain no explicit definition of either equality or non-discrimination, leaving broad discretion for interpretation to legislatures and judiciary, including the CJEU. Some definitions are contained in the so-called non-discrimination Directives, adopted on the basis of the former Article 13 TEC,56 and even before entry into force of these Directives, the CJEU developed a rich case law, establishing that discrimination may be direct57 or indirect,58 that equality goes beyond equality before law (or formal equality) and includes substantive equality. In addition, with certain 55

Martins (2010), pp. 39 ff. Council Directive 2000/43 on implementing the principle of equal treatment between persons irrespective of racial and ethnic origin (known as ‘racial equality’ directive), OJ L 180/22—26 (2000); Council Directive 2000/78 on establishing a general framework for equal treatment in employment and occupation (known as ‘employment equality Directive’), OJ L 303/ 16—22 (2000); Council Directive 2004/113 on implementing the principle of equal treatment between men and women in the access to and supply of goods and services, OJL 373/ 37—43 (2004). 57 Case 356/12, Glatzel v Freistaat Bayern (ECJ 22 May 2014); Case 267/12, Frédéric Hay v Crédit agricole mutuel de Charente-Maritime et des Deux-Sèvres (ECJ 12 December 2013); Case 81/12, Asociaţia Accept v Consiliul Naţional pentru Combaterea Discriminării (ECJ 25 April 2013); Case 54/07, Centrum v Firma Feryn, (ECJ 10 July 2008); Case 506/06, Sabine Mayr v Bäckerei und Konditorei Gerhard Flöckner OHG (ECJ 26 February 2008); Case 267/06, Tadao Maruko v Versorgungsanstalt der deutschen Bühnen, (ECJ 1 April 2008); Case 423/04, Sarah Margaret Richards v Secretary of State for Work and Pensions, (ECJ 27 April 2006); Case 256/01, Debra Allonby, (ECJ 13 January 2004); Case 191/03, North Western Health Board v Margaret McKenna (ECJ 8 September 2005); Case 13/94, P v S and Cornwall County Council (ECJ 30 April 1996); Case 177/88, Elisabeth Johanna Pacifica Dekker v VJV Centrum (ECJ 8 November 1990); Case 32/93, Carole Louise Webb v EMO Air Cargo (UK) Ltd, (ECJ 14 July 1994). 58 Case 267/06, Tadao Maruko v Versorgungsanstalt der deutschen Bühnen (ECJ 01 April 2008); Case 171/88, Ingrid Rinner-Kühn v FWW Spezial-Gebäudereinigung GmbH & Co. KG, (ECJ 13 July 1989); Case 184/89, Helga Nimz v Freie und Hansestadt Hamburg (ECJ 7 February 1991); Case 33/89, Maria Kowalska v Freie und Hansestadt Hamburg, (ECJ 27 June 1990); Case 343/92, De Weerd and Others (ECJ 24 February 1994); Case 385/11, Isabel Elbal Moreno v INSS and TGSS (ECJ 22 November 2012); Case 152/11, Johann Odar v Baxter Deutschland GmbH, (ECJ 6 December 2012); Case 267/12, Frédéric Hay v Crédit agricole mutuel de CharenteMaritime et des Deux-Sèvres (ECJ 12 December 2013); Case 83/14, CHEZ Razpredelenie Bulgaria AD v Komisia za zashtita ot diskriminatsia (ECJ 16 July 2015). 56

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reservations the Court admitted positive discrimination59 with the aim of attaining equality between certain categories of persons/individuals. The notions of multiple discrimination60 and discrimination by association61 were developed initially in scholarly writing62 and subsequently entered into CJEU case law.

5.2

Brief Overview of the Evolution of Equality and Non-discrimination in EU Law

Interestingly, the prohibition of non-discrimination on grounds of nationality and parity of remuneration between men and women have been incorporated into the Treaties since the very beginning of the European integration, and they had previously played an important role in the European Community (EC) Law.63 The main goal of the European Communities was the common market (renamed internal market, after the Single European Act), which presupposed the freedom of movement of persons (individuals and undertakings), as well as the freedom of movement of goods, services and capital coming between Member States, so that Member State nationals, as well as goods, services and capital, must circulate unobstructed within the common market. Accordingly, the nationality (from one Member State) of the individuals and the national origin of goods, services and capital must not prevent their free movement from one Member State to another. As a result, the principle of non-discrimination on grounds of nationality was envisaged as a fundamental principle of EU Law—a ‘Leitmotiv of the Treaties’—since the very beginning of the European integration process. In fact, it was conceived as an instrument of the establishment of the common/ internal market, and was applied restrictively to Member State nationals. Similarly, economic reasons also founded the prohibition of discrimination on grounds of gender,64 as enshrined in the Treaties. The principle of equal pay for equal work or work of equal value in the original version of the EEC Treaty was intended to avoid and eliminate social dumping, in order to build a free labour market. However, as long as gender discrimination not only harms the economy but more especially violates human dignity, in particular the dignity of women, the prohibition

59

Case 409/95, Hellmut Marshall v Land Nordrhein-Westfalen, (ECJ 11 November 1997); Case 158/97, Badeck and others, (ECJ 28 March 2000); Case 476/99, H. Lommers and Minister van Landbouw, Natuurbeheer en Visserij (ECJ 19 March 2000). 60 Case 443/15, David L. Parris v Trinity College Dublin and others (ECJ 24 November 2016). 61 Case 303/06, S. Coleman v Attridge Law and Steve Law (ECJ 17 July 2008). 62 For instance, Schiek (2008), p. 13; Nielsen (2008), p. 37; Gerards (2007), p. 172 ff.; Fredman (2005), p. 16. 63 Lenaerts (1991), pp. 21, 22. 64 The Treaties mainly use the word sex (not gender).

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of gender discrimination involves/affects men and women provided they work within the labour market. The progressive transformation of the Communities and the Union into a political entity inevitably had a significant impact on the principles of equality and non-discrimination, given that every political identity must respect the principles and values of modern constitutionalism. That means the rationale of non-discrimination and equality needs to find its foundation beyond economic reasons. In fact, equality and non-discrimination became part of the hard essential set of values of the EU, alongside respect for democracy, the rule of law and protection of fundamental rights. The fact that equality and non-discrimination are part of the values of the EU is a good indication that they are certainly embedded within the heart of the EU constitutional identity. This first impression was confirmed by the successive revisions of the Treaties (especially Amsterdam). The growth of racism and xenophobia in Europe after the mid-eighties explains the introduction of the former Article 13 into the Treaty of the European Community (TEC), which conferred on the Council the power to adopt acts in order to combat discrimination on some innovative classifications, such as race, ethnic origin, religion or belief, disability, age or sexual orientation. The next step towards the building of the EU constitutional identity was the Treaty of Lisbon, which paid particular attention to equality and non-discrimination. Firstly, Article 2 TEU, concerning the values of the EU, states that “the Union is founded on the values of [. . .] equality [. . .]”, which are common to the Member States. The value of equality founds one of the most structural principles of former Communities and of the EU—the principle of non-discrimination. Secondly, the combat to social exclusion and discrimination, and the promotion of equality between men and women are significant objectives of the Union (Article 3 (3) TEU) and the Union shall aim to eliminate inequalities, and to promote equality, between men and women in all its activities (Article 8 TFEU). Thirdly, the TFEU expressly recognises the equality between men and women (Article 157). Fourthly, the Treaty of Lisbon extends the mainstreaming to other grounds of discrimination. Article 10 TFEU states: ‘In defining and implementing its policies and activities the Union shall aim to combat discrimination based on sex, racial or ethnic origin, religion or belief, disability, age or sexual orientation’. Finally, Chapter III of the Charter of Fundamental Rights of the European Union entitled Equality starts with a basic equality-before-the-law guarantee (Article 20), proceeds with a ban of any discrimination based on several grounds, such as gender, race color, ethnic or social origin, genetic features, language, religion or believe, political or any other opinion, membership of a national minority, property, birth, disability, age or sexual orientation (Article 21, para. 1). The Charter also recognises the classical prohibition of any discrimination on grounds of nationality (Article 21, para. 2) and enshrines gender parity in all areas, including employment, work and pay, while expressly permitting positive action in these fields (Article 23).

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41

Role Played by Equality and Non-discrimination in the European Constitutionalism

The Treaty of Lisbon not only reinforces the axiological basis of the EU by expressly incorporating equality and non-discrimination, but also ranks these values among the primary objectives of the EU. That means equality and non-discrimination are envisaged by the Treaties as EU principles, values and objectives. In addition, there is also a fundamental right not to be discriminated against on several grounds and a right be equally treated based on the respect for human dignity. In our opinion, the explicit mention of equality and non-discrimination in the Treaties must have consequences both when the EU institutions legislate and also when they adopt administrative acts or even in their administrative practices. That means all EU institutions must respect equality and non-discrimination as fundamental EU values. Furthermore, all institutions, including the CJEU, organs or agencies of the EU must take equality and non-discrimination into account when they interpret and apply EU law. The same applies concerning the national courts. Finally, candidates for Member State status and the full EU Member States must also respect the values of the EU. According to Article 49 TEU, accession to the EU of a new Member State ultimately depends on its respecting the values referred to in Article 2 TEU. Under the terms of Article 7 TEU, the existence either of a clear risk of a serious breach or of a serious and persistent breach on the part of a Member State of the values referred to in Article 2 TEU may lead to the suspension of certain that Member State’s rights derived from the application of the Treaty, including the voting rights in the Council of the representatives of that Member State. To sum up, the response to the question whether equality and non-discrimination are part of the EU’s constitutional identity should be in the affirmative.

6 Some Concluding Remarks At the end of this study, certain conclusions may be drawn: 1) The evolution of the EU, and in particular its political character, requires a constitutional law foundation, which can be provided by the concept of constitutional identity. 2) However, this notion finds no express mention in the EU Treaties. The Treaty of Maastricht, referred to national identity or identities, while more recently, the Treaty of Lisbon states in Article 4 (2) TEU that the Union is to respect the national identities of the Member States, inherent in their fundamental political and constitutional structures. 3) There is no consensus on whether national identity and constitutional identity are identical. In any case, the domestic constitutional courts, especially the

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4) 5) 6)

7)

8)

9)

10)

11)

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BVerfG, have generated a rich case law on the domestic constitutional identity, with the aim to limit the absolute primacy of the EU law within domestic law and to prevent further transfer of powers to the EU that call Member State statehood into question. Even the CJEU accepted some national restrictions on the full application of the EU law based on the constitutional identity of the Member States. Nevertheless, the concept of the EU identity remains characterized by its indeterminacy, vagueness and complexity. If there is no consensus surrounding the concepts of national identity and constitutional identity applied to the Member States, the constitutional identity of the EU is even more controversial. As it goes hand in hand with the metamorphosis of the EU Treaties into a substantive constitution, those who remain faithful to the Westphalian world accept neither the constitutionalization of the EU nor the EU constitutional identity. By contrast, for those, who argue that the EU already has a substantive constitution, the EU, as other political entities, must be based on a constitutional identity, which presupposes common origins, common values, a common destiny and a common differentiation from other entities. Although the EU constitutional identity is still in a process of crystallisation, equality and non-discrimination are undoubtedly part of it, since they are envisaged by the TEU as values of the EU (Article 2 TEU). Identifying the common destiny of the EU is considerably more difficult, in view of the numerous crises the EU (and the international community in general) have encountered recently, either caused by or leading to contradictions within the EU. In the upshot the future of the EU is rather unclear and uncertain. Nevertheless, the EU remains a beacon of hope shining in the darkness.

References Avbelj, Matej, and Jan Komárek. 2012. Constitutional Pluralism in the European Union and Beyond. Oxford: Hart Publishing. Balaguer Callejón, Francisco. 2017. The Dialectic Relation Between the National and the European Constitutional Identity in the Framework of European Constitutional Law. EU Law Journal 3: 10–24. Barents, René. 2012. The Fallacy of Multilevel Constitutionalism. In Constitutional Pluralism in the European Union and Beyond, ed. Matej Avbelj and Jan Komárek, 153–184. Oxford: Hart Publishing. Belov, Martin. 2017. The Functions of Constitutional Identity Performed in the Context of the Constitutionalization of the EU Order and Europeanization of the Legal Orders of the EU Member States. Perspectives on Federalism 9: 72–96. Besselink, Leonard F.M. 2010. National and Constitutional Identity Before and After Lisbon. Utrech Law Review 6: 36–49. Bonelli, Matteo. 2018. The Taricco Saga and the Consolidation of Judicial Dialogue in the European Union – CJEU, C-105/14 Ivo Taricco and Others, ECLI:EU:C:2015:555; and C-42/

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17 M.A.S., M.B., ECLI:EU:C:2017:936 Italian Constitutional Court, Order no. 24/2017. Maastricht Journal of European and Comparative Law 25: 357–373. Claes, M., and J. H. Reestman. 2015. The Protection of National Constitutional Identity and the Limits of European Integration at the Occasion of the Gauweiler Case. German Law Journal 16: 917–970. Cloots, Elke. 2016. National Identity, Constitutional Identity, and Sovereignty in the EU. Netherlands Journal of Legal Philosophy 45: 82–98. Cruz Villalón, Pedro. 2013. La identidad constitucional de los Estados Miembros: Dos Relatos Europeus. AFDUAM 17: 501–514. Fabrini, Federico, and Oreste Pollicino. 2017. Constitutional Identity in Italy: European Integration as the Fulfilment of the Constitution. EUI Department of Law Research Paper 2017/06: 1–15. Faraguna, Pietro. 2017a. Constitutional Identity in the EU – A Shield or a Sword? Special Issue. German Law Journal 18: 1617–1640. ———. 2017b. La saga OMT: il diritto all’ultima parola tra Corte di Giustizia e tribunali costituzionali. Giurisprudenza Costituzionale 1: 568–600. Fredman, Sandra. 2005. Double Trouble: Multiple Discrimination and EU Law. European AntiDiscrimination Law Review 2: 13–18. Gerards, Janneke. 2007. Discrimination Grounds. In Cases, Materials, and Text on National, Supranational and International Non-discrimination Law, ed. Dagmar Schiek, Lisa Waddington, and Mark Bell, 33–184. Oxford: Hart Publishing. Halberstam, Daniel. 2012. Local, Global and Plural Constitutionalism: Europe Meets the World. In The Worlds of European Constitutionalism, ed. Gráinne de Búrca and J.H.H. Weiler, 150–202. Cambridge: Cambridge University Press. Ingolf, Albert. 2015. Die verfassungsrechtliche Identität der Bundesrepublik Deutschland – Karriere – Konzept – Kritik. Archiv des öffentlichen Rechts 140: 1–30. Jacobsohn, Gary Jeffrey. 2006. Constitutional Identity. The Review of Politics 68: 361–397. Krisch, Nico. 2012. The Case for Pluralism in Postnational Law. In The Worlds of European Constitutionalism, ed. Gráinne de Búrca and J.H.H. Weiler, 203–261. Cambridge: Cambridge University Press. Lenaerts, Koen. 1991. L’égalité de traitement en droit communautaire: un principe unique aux apparences multiples. Cahiers de droit européen 27: 3–41. Ludwigs, Markus, and Patrick Sikora. 2018. Der Vorrang des Unionsrechts unter Kontrollvorbehalt des BVerfG. Europäisches Wirtshafts- und Steuerrecht 3: 121–130. Manasyan, Anahit. 2018. The Idea of Constitutional Identity in the Modern Constitutional Law. Pravo. Zhurnal Vysshey shkoly ekonomiki 3: 81–89. https://doi.org/10.17323/2072-8166.2018. 3.81.98. Martins, Ana Maria Guerra. 2000. A natureza jurídica da revisão do Tratado da União Europeia. Lisbon: Lex. ———. 2010. A igualdade e a não discriminação dos nacionais de Estados terceiros legalmente residentes na União Europeia – da origem na integração económica ao fundamento na dignidade do ser humano. Coimbra: Almedina. ———. 2011. Os fundamentos axiológicos da União Europeia após o Tratado de Lisboa. Um estudo sobre o artigo 2. TUE. In A União Europeia segundo o Tratado de Lisboa – Aspectos centrais, ed. Nuno Piçarra, 47–79. Coimbra: Almedina. ———. 2016. Opinion 2/13 of the Court of Justice in the Context of Multilevel Protection of Fundamental Rights and Multilevel Constitutionalism. Zeitschrift für öffentliches Recht/Journal of Public Law 71: 27–57. ———. 2017. Manual de Direito da União Europeia. 2nd ed. Coimbra: Almedina. Neves, Marcelo. 2009. Transconstitucionalismo. São Paulo: Editora WMF Martins Fontes Lda. Nielsen, Ruth. 2008. Is European Union Equality Law Capable of Addressing Multiple and Intersectional Discrimination yet? Precautions against neglecting intersectional cases. In European Union Non-discrimination Law – Comparative Perspectives on Multidimensional Equality Law, ed. Dagmar Schiek and Victoria Chege, 31–51. London: Routledge-Cavendish.

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Pernice, Ingolf. 1999. Multilevel Constitutionalism and the Treaty of Amsterdam: European Constitution-Making Revisited? Common Market Law Review 36: 703–750. ———. 2002. Multilevel Constitutionalism in the European Union. European Law Review 27: 511–529. ———. 2009. The Treaty of Lisbon: Multilevel Constitutionalism in Action. Columbia Journal of European Law 15: 349–407. ———. 2011. Motor or Brake for European Policies? Germany’s New Role in the EU after LisbonJudgment of its Federal Constitutional Court. In Europe’s Constitutional Challenges in the light of the Recent Case Law of National Constitutional Court, ed. José Maria Beneyto and Ingolf Pernice, 355–390. Baden-Baden: Nomos. ———. 2015. Multilevel Constitutionalism and the Crisis of Democracy in Europe. European Constitutional Law Review 11: 541–562. Pliakos, Asteris, and Georgias Anagnastaras. 2017. Saving Face? The German Federal Constitutional Court Decides Gauweiler. German Law Journal 18: 213–232. Poiares Maduro, Miguel. 2006. A Constituição Plural – Constitucionalismo e União Europeia. Lisbon: Principia. Polzin, Monika. 2017. Constitutional Identity as a Constructed Reality and a Restless Soul. German Law Journal 18: 1596–1616. Rosenfeld, Michel. 2012. Constitutional Identity. In The Oxford Handbook of Comparative Constitutional Law, ed. Michel Rosenfeld and András Sajó, 756–775. Oxford: Oxford University Press. Schiek, Dagmar. 2008. From European Union Non-discrimination Law Towards Multidimensional Equality Law for Europe. In European Union Non-discrimination Law – Comparative Perspectives on Multidimensional Equality Law, ed. Dagmar Schiek and Victoria Chege. London: Routledge-Cavendish. Thym, Daniel. 2009. In the Name of Sovereign Statehood: A Critical Introduction to the Lisbon Judgment of the German Constitutional Court. Common Market Law Review 46: 1795–1822. Van der Schyff, Gerhard. 2016. EU Member State Constitutional Identity: A Comparison of Germany and Netherlands as Polar Opposites. ZaöRV 76: 167–191. Von Bogdandy, Armin, and Stephan Schill. 2011. Overcome Absolute Primacy. Respect for National Identities Under the Treaty of Lisbon. Common Market Law Review 45: 147–1454. Walker, Neil. 2012. Constitutionalism and Pluralism in Global Context. In The Worlds of European Constitutionalism, ed. Gráinne de Búrca and J.H.H. Weiler, 57–104. Cambridge: Cambridge University Press. Walter, Maja. 2012. Integrationsgrenze Verfassungsidentität – Konzept und Kontrolle aus europäischer, deutscher und französischer Perspektive. ZäoRV 72: 177–200. Weiler, J.H.H. 2012. Prologue: Global and Pluralist Constitutionalism – Some Doubts. In The Worlds of European Constitutionalism, ed. Gráinne de Búrca and J.H.H. Weiler, 8–18. Cambridge: Cambridge University Press.

Ana Maria Guerra Martins is Judge at the European Court of Human Rights, Associate Professor (with Aggregation), Law School of Lisbon University (tenure), Senior Researcher at Lisbon Centre for Research in Public Law (CIDP), former member of the European Network of Legal Experts in Gender Equality and Non-Discrimination (European Union Commission), Member of the European Public Law Group and former Justice at the Portuguese Constitutional Court. She can be reached at: [email protected]. The opinions expressed in this article only bind the autor.

The Political Dimensions of Equality in the European Union: Equality of Union Citizens and Equality of Member States in a Supranational Representative Democracy Thomas Giegerich

Contents 1 Introduction: The Civil and Political Dimensions of Human Equality as Reflected in the Universal Declaration of Human Rights . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 Global International Law Background: Equality of Individuals, Peoples and States . . . . . . . 2.1 Three Organisational Levels of Equality in the Triad of Citizens, Peoples and States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.2 External and Internal Dimension of the Right of Self-Determination: The Rights to Sovereign Statehood and Democracy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.3 Sovereign Equality as an Instrument to Protect and Empower Small Peoples and Their Individual Members . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.4 The Incomplete Transformation of International Law Into a Law of Humankind . . . 2.5 Institutional Structure of Intergovernmental Organisations: International Parliamentary Assemblies with Particular Emphasis on PACE . . . . . . . . . . . . . . . . . . . . . . . 2.6 Conclusion: Democratic Legitimacy of International Decision-Making Based on Sovereign Equality of States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 Individual Political Equality and Constituent People or State Equality in Federal States: The USA and Germany as Examples . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.1 Modell Conceptions of How to Equilibrate Individual Political Equality and Constituent Peoples’ or States’ Equality in Federal Democracies . . . . . . . . . . . . . . . . 3.2 USA: Individual Political Equality, Constituent State Equality and Bicameralism in a Decentralised Federal State . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.3 Germany: Political Civic Equality, Constituent State Equality and Pseudo-Bicameralism in a Highly Centralised Federal State . . . . . . . . . . . . . . . . . . . . . 3.3.1 The Equality and Limited Constitutional Autonomy of Constituent States . . 3.3.2 The Two Dimensions of Human Equality in the BL . . . . . . . . . . . . . . . . . . . . . . . . . . 3.3.3 The German Legislature’s Pseudo-Bicameralism and Weighted Voting in the Bundesrat . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.3.4 Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 The Quasi-Federal European Union: Individual Political Equality, Member State Equality and Quasi-Bicameralism . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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T. Giegerich (*) Europa-Institut, Faculty of Law, Saarland University, Saarbrücken, Germany e-mail: [email protected] © Springer Nature Switzerland AG 2020 T. Giegerich (ed.), The European Union as Protector and Promoter of Equality, European Union and its Neighbours in a Globalized World 1, https://doi.org/10.1007/978-3-030-43764-0_4

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General Assessment of the European Union’s Quasi-Federal and Democratic Character . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.2 Constitutional Precepts for Member States (Art. 2 TEU) v. Constitutional Autonomy of Member States (Art. 4 (2) TEU) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.3 Member State Equality Before the Treaties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.4 The Two Dimensions of Human Equality in EU Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.5 Equilibrating Member State Equality and Individual Political Equality in the EU’s System of Representative Democracy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.5.1 Dual Democratic Legitimation of EU Decision-Making . . . . . . . . . . . . . . . . . . . . . . 4.5.2 Quasi-Bicameralism at EU Level . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.5.3 The Council as the Representation of the Equal Member States . . . . . . . . . . . . . 4.5.3.1 The Era of Weighted Voting (1952–2014) . . . . . . . . . . . . . . . . . . . . . . . . . . 4.5.3.2 The New Double Majority (since 2014) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.5.3.3 Supranational Synthesis of Member State Equality and Union Citizen Equality in the Council . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.5.4 The European Parliament as the Representation of the Equal Union Citizens . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.5.4.1 Union Citizens Replace Peoples of Member States as Subjects of Representation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.5.4.2 Degressively Proportional Representation of Union Citizens per Member State . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.5.4.3 Equality of Union Citizens and Equal Franchise . . . . . . . . . . . . . . . . . . . . 4.5.4.4 Supranational Synthesis of Union Citizen Equality and Equality of Member States’ European Electorates in the European Parliament . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.6 Conclusion: Unique Supranational Equilibration of Individual and State Equality in the EU . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 Overall Comparison: Ensuring Democratic Equality in Multilevel Systems of Government . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

65 68 69 70 72 72 73 74 75 78 81 81 81 82 86

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Abstract Public international law, federal constitutional law and EU law guarantee the equality of citizens, peoples and States as well as the democratic structure of States in different ways. The international community and its law-making process are still clearly dominated by the equally sovereign States. It thus is the equal vote of all the Member States in the representative organ of intergovernmental organisations which ensures the democratic legitimacy of whatever indirect effect their decisions have on the citizens. In federal States as well as the quasi-federal EU, the (quasi-) federal level exercises direct legislative, executive and judicial authority over the individual citizens. This requires more solid democratic foundations of the (quasi-) federal decision-making process. The governmental authority of federal States is derived from the sovereignty of the composite federal people as an amalgamation of the persisting constituent states’ peoples. Federal constitutions therefore embody a compromise between the whole of the people and its parts that is specific to the particular federation. Federal States have a bicameral legislature. One chamber is the representation of the federal people consisting of equal citizens, the other chamber the representation of the governments or peoples of the equal constituent states. While the members of the former are directly elected by the citizens of the federation on the basis of equal suffrage, the composition and decision-making procedure of the latter is (mostly) aimed at ensuring the equality of the constituent states and their

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peoples irrespective of size. This is a typical federal modification of the democratic majority rule in favour of protecting structural minorities organised as states. The sui generis quasi-federal system of the EU is situated somewhere between an intergovernmental organisation and a federal State. From the perspective of democracy and equality, it shares one important feature with a federal State—its direct legal relationship with the individual citizens of the Union. This feature necessitates a bicameral legislature similar to the ones in federal States. There the equality of the Member States and the equality of the Union citizens need to be equilibrated in a way that is adequate to the unique supranational character of the EU’s representative democracy. Accordingly, while the equality of Member States representing national electorates dominates the Council, the equality of Union citizens constituting the European electorate dominates the European Parliament. But with regard to both institutions, the dominance of the one principle is significantly modified by the other. Whereas the linchpins of democracy in the international community are the equally sovereign States, the linchpins of democracy in federal States are the equal federal citizens who are simultaneously equal constituent state citizens and influence the federal decision-making process in both capacities through the two chambers of the federal legislature. In the EU, the linchpins of democracy are ultimately also the equal Union citizens who are simultaneously equal Member State citizens and influence the decision-making process of the Union in both capacities through the two chambers of the EU legislature. In the EU, the capacity as Member State citizens dominates, in accordance with the derivative quality of the citizenship of the Union as well as the decentralised character of the EU’s quasi-federalism. This adequately reflects the specific character of a supranational democracy based on still sovereign Member States and their citizens.

1 Introduction: The Civil and Political Dimensions of Human Equality as Reflected in the Universal Declaration of Human Rights According to the Universal Declaration of Human Rights (UDHR) of 10 December 1948, which has time and again been reconfirmed by the international community as a “common standard of achievement for all peoples and all nations”,1 the post-1945 international legal order is premised on the notion that “[t]he recognition of the inherent dignity and of the equal and inalienable rights of all members of the human

UN General Assembly Resolution 217 A (III), final clause of the preamble. Reconfirmed by UNGA Res. 63/116 of 10 Dec. 2008. On the question if and to what extent the provisions of the UDHR as such have meanwhile been transformed into norms of public international law, see Charlesworth (2008), paras. 13 ff.

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family is the foundation of freedom, justice and peace in the world”.2 Equality is a core element of that notion, being closely related to human dignity. Two dimensions of human equality can be distinguished: The equality of humans in general (i.e. their equality as humans) and their political equality in particular (i.e. the equality of humans in their capacity as citizens of political entities). Human equality in general is conceivable in a (theoretical) state of nature, based on the notion that “[a]ll human beings are born free and equal in dignity and rights” (natural equality).3 In the form of civil equality, it guarantees equality in a state of social organisation, such as in civil societies, nations or peoples freely established by individuals. Political equality exists only within States or State-like entities, i.e. political entities with institutional frameworks which have been established by nations or peoples. Peoples enjoy a right of self-determination as a collective corollary of their individual members’ freedom, and equal rights as a collective corollary of their individual members’ general human equality. From a legal perspective, civil equality means equality with regard to civil, economic, social, cultural as well as all other rights; it constitutes one of the pillars of the rule of law. Political equality means equality with regard to political rights; it constitutes the basis of democracy. Both dimensions of human equality are emanations of human dignity and thus as closely interconnected as the two sides of the same medal. This is because without political equality, civil equality is endangered, since humans who do not enjoy equal political rights as citizens are likely to be disadvantaged also in other respects in the political entities under whose jurisdiction they live. For this reason, the two global human rights treaties concerned with the elimination of specific types of discrimination, the International Convention for the Elimination of All Forms of Racial Discrimination (CERD)4 and the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW),5 guarantee both civil and political equality to humans of all “races” or women respectively.6 Civil equality is the subject matter of Art. 2 and Art. 7 UDHR. While Art. 2 UDHR provides that everyone is entitled to all the rights and freedoms set forth in the UDHR without distinction of any kind, Art. 7 UDHR stipulates that “[a]ll are equal before the law and are entitled without any discrimination to equal protection of the law.” Art. 21 UDHR guarantees political equality in the following terms: 1. Everyone has the right to take part in the government of his country, directly or through freely chosen representatives. . . . 3. The will of the people shall be the basis of the authority of government; this will shall be expressed in periodic and genuine elections which shall be by universal and equal suffrage and shall be held by secret vote or by equivalent free voting procedures.

2

First recital of the preamble of the UDHR. Art. 1 sentence 1 UDHR. 4 21 December 1965, UNTS vol. 660, p. 195. 5 18 December 1979, UNTS vol. 1249, p. 13. 6 Art. 1 (1), Art. 5 CERD; Art. 1, Art. 7, Art. 8, Art. 10 ff. CEDAW. 3

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While the UDHR does not expressly refer to the right of self-determination of peoples, Art. 21 UDHR presupposes popular self-government without dictatorship or foreign domination. Moreover, Art. 28 UDHR sets forth that everyone is entitled to a social and international order in which the rights guaranteed in the UDHR can be fully realised. If the entitlement of individuals to an international order conducive to the effective realisation of their human rights is extrapolated to the social and political entities freely constituted by the bearers of that entitlement, one arrives at the right of self-determination of all peoples and the sovereign equality of States established by them.

2 Global International Law Background: Equality of Individuals, Peoples and States 2.1

Three Organisational Levels of Equality in the Triad of Citizens, Peoples and States

The principles of “equal rights and self-determination of peoples” and “human rights and . . . fundamental freedoms for all without distinction as to race, sex, language, or religion” are cornerstones of the UN Charter.7 From these principles of equality of peoples and their individual members, the Charter derives the further principle of the sovereign equality of the Member States of the UN8 as well as their obligation to promote “universal respect for, and observance of, human rights and fundamental freedoms for all without distinction as to race, sex, language, or religion”.9 By virtue of the principle of sovereign equality, all States “have equal rights and duties and are equal members of the international community”.10 The sovereign equality of States constitutes transposition of the equal rights and self-determination of peoples to the condition of organised statehood in which civil and political equality are ensured for all within the respective State’s jurisdiction. The equal right of self-determination of all peoples has meanwhile been codified in common Art. 1 of the International Covenant on Civil and Political Rights (ICCPR)11 and the International Covenant on Economic, Social and Cultural Rights (ICESCR),12 the two primary human rights treaties at the global level. The

7 Art. 1 nos. 2 and 3 UN Charter (UNCIO vol. XV [1945], 335) counts the promotion of respect for those principles among the purposes of the United Nations. 8 Art. 2 no. 1 UN Charter. 9 Art. 55 lit. c, Art. 56 UN Charter. 10 See the pertinent explanation of the principle of sovereign equality in the Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States in accordance with the Charter of the United Nations of 24 October 1970, UNGA Res. 2625 (XXV). 11 16 December 1966, UNTS vol. 999, 171. 12 16 December 1966, UNTS vol. 999, 3.

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Covenants as a matter of course also protect civil equality in general as well as political equality in particular within the States. Civil equality is regulated in Art. 2 (1), Art. 26 ICCPR which mirror Art. 2, Art. 7 UDHR, and in Art. 2 (2) ICESCR which mirrors Art. 2 UDHR. Political equality is the subject matter of Art. 25 ICCPR which mirrors Art. 21 UDHR. The right of self-determination is now widely recognised not only as rule of customary international law creating obligations erga omnes,13 but even as a peremptory norm of general international law (jus cogens).14 It is a third-generation collective human right and the prerequisite for the ability of the peoples’ individual members to exercise their first-generation (civil and political) and second-generation (economic, social and cultural) human rights effectively,15 including the enjoyment of civil and political equality. Inhabitants of territories under colonial, foreign and alien domination in violation of their collective right of self-determination as peoples are usually unable fully to enjoy individual human rights on an equal basis.16 Examples for this are the situations of the Palestinians in the Israeli-occupied West Bank and the Sahrauis in the Morocco-occupied Western Sahara.17 It is now generally accepted that “all human rights are universal, indivisible, interdependent and interrelated”.18 The civil and political equality of individuals, the equality of the peoples (no matter if large or small) these individuals form and the equality of the States (no matter if large or small) these peoples establish are but interdependent varieties of human equality at different levels of human organisation in a triad. They all emanate from and ultimately serve “the dignity and worth of the human person” invoked in the preambles of the UN Charter and the Universal Declaration of Human Rights that is the linchpin of the projected free, just and peaceful post-1945 international community under law.

13

ICJ, Legal Consequences of the Separation of the Chagos Archipelago from Mauritius in 1965, Advisory Opinion of 25 February 2019, §§ 144 ff., 180. 14 Frowein (2013), para. 8; Heintze (2018), § 10 para. 9. 15 See UNGA Res. 73/160 of 17 December 2018, para. 1. On human rights generations, see Minnerop et al. (2018), paras. 1 ff. 16 Explanation to the principle of equal rights and self-determination of peoples in the Declaration of Principles Principles of International Law concerning Friendly Relations and Co-operation among States in accordance with the Charter of the United Nations, UNGA Res. 2625 (XXV) of 24 October 1970. That Declaration can be considered as an authoritative interpretation of the UN Charter (Keller (2009), paras. 29 ff.). 17 ICJ, Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion of 9 July 2004, ICJ Reports 2004, 136, §§ 118 ff.; ECJ, Case C-363/18, ECLI: EU:C:2019:954, paras. 33 ff. (12 November 2019); ECJ, Case C-104/16 P, Council/Front Polisario (21 December 2016), ECLI:EU:C:2016:973, paras. 88 ff. 18 UNGA Res. 73/169 of 17 December 2018 “Promotion of a democratic and equitable international order”, para. 8.

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External and Internal Dimension of the Right of Self-Determination: The Rights to Sovereign Statehood and Democracy

By virtue of the right of self-determination, peoples “freely determine their political status and freely pursue their economic, social and cultural development.”19 It has also been recognised that “[t]he establishment of a sovereign and independent State, the free association or integration with an independent State or the emergence into any other political status freely determined by a people constitute modes of implementing the right of self-determination by that people.”20 This is the external dimension of the right of self-determination. If a people establishes a sovereign and independent State, the latter enjoys sovereign equality and consequently the right “freely to choose and develop its political, social, economic and cultural systems” without foreign intervention.21 Peoples can exercise their right of self-determination also by freely joining a federal State as a non-sovereign constituent entity without reserving any right of withdrawal22 as well as by becoming a Member State with limited sovereignty of a quasi-federal supranational system such as the European Union while retaining a right of withdrawal.23 On the other hand, the right of self-determination cannot be used as a pretext for dismembering or impairing, “totally or in part, the territorial integrity or political unity of sovereign and independent States conducting themselves in compliance with the principle of equal rights and self-determination of peoples . . . and thus possessed of a government representing the whole people belonging to the territory without distinction as to race, creed or colour”.24 As a general rule therefore, there is no right of peoples to secede from multi-ethnic States outside the decolonisation context. Colonialism is per se characterised by the rule of a foreign government which does not truly represent the people of the colonial territory. Apart from colonialism and comparable alien subjugation, a right of “remedial” secession may arise only in exceptional cases of suppression and persecution of a minority people by a hostile majority government of a State. However, there is no international consensus in this regard.25

19

Common Art. 1 sentence 2 of the two Covenants (notes 11, 12). Explanation to the principle of equal rights and self-determination of peoples (UNGA Res. 2625 [XXV], note 16). 21 Lit. e of the explanation to the principle of sovereign equality of States (UNGA Res. 2625 [XXV], note 16). 22 If a people freely decides to integrate itself in a federal State, it does not “give up” its right to selfdetermination, but chooses to exercise it in a certain form (but see BVerfGE 123, 267 [348 f.]). 23 See Art. 50 TEU. 24 Explanation to the principle of equal rights and self-determination of peoples (note 20). 25 See ICJ, Accordance with International Law of the Unilateral Declaration of Independence with respect to Kosovo, Advisory Opinion of 22 July 2010, ICJ Reports 2010, 403, §§ 82 ff. See also ICJ, Legal Consequences of the Separation of the Chagos Islands from Mauritius in 1965, Advisory Opinion of 25 February 2019, § 144; Klabbers (2019). 20

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The requirement that a State should have a government representing the whole people indicates that the right of self-determination also has an internal dimension according to which the sovereignty of the people is the sole basis of legitimate government. Read together with Art. 25 ICCPR, this provides the basis of an international human right to democracy of peoples and individuals.26 The Heads of State and Government of the UN Member States have accordingly reaffirmed that “democracy is a universal value based on the freely expressed will of people to determine their own political, economic, social and cultural systems and their full participation in all aspects of their lives. We also reaffirm that while democracies share common features, there is no single model of democracy . . .”27 A federal State or quasi-federal supranational system complying with these precepts must be possessed of a government representing the whole people(s) of the entire (quasi-) federal territory. Their right of self-determination requires a federalised democracy, but not a right of secession. Despite all definitional debates and substantial variations of democracy worldwide,28 the most important common feature is that democracy can only be sustained by free and equal citizens. It is in the principle of democracy that the right to political equality of individuals and the equal right of self-determination of peoples converge: No self-determination without democracy, and no democracy without political equality.29 There is a certain tension between the human right to democracy presupposing free and equal citizens and the right of each State to freely choose and develop its political system—which would theoretically include the establishment of a dictatorship. But since the source of both rights ultimately is the right of peoples to selfdetermination, reconciliation is possible by virtue of the prohibition of abuse of rights: According to a well-established rule of international human rights law, no State, group (including people) or person can claim any right to destroy or abolish human rights,30 including the right to internal self-determination in a democracy of free and equal citizens. This rule is but a specific expression of the general prohibition of abuse of rights in international law.31 While each State may thus freely develop diverse concepts of democratic government, it must never degenerate into an undemocratic system, thereby violating the rights of its peoples(s) and citizens.

Fox (2008). See also UNGA Res. 73/169 (note 18), § 6 (h): The “right to equitable participation of all, without discrimination, in domestic and global decision-making” as a means to promote “a democratic and equitable international order”. 27 World Summit Outcome (UNGA Res. A/RES/60/1 of 16 September 2005). See also UNGA Res. 73/169 (note 18), § 5. 28 See Fox (note 26), paras. 35 ff. 29 See UNGA Res. 73/169 (note 18), § 6 (a) and (h). 30 See Art. 30 UDHR; Art. 5 (1) ICCPR; Art. 5 (1) ICESCR. 31 Kiss (2006). 26

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Sovereign Equality as an Instrument to Protect and Empower Small Peoples and Their Individual Members

The equality category transcending and synthesising the equality of individuals and peoples is the sovereign equality of States large and small. This institutional equality functions as a guarantee of “minority” rights in the figurative sense: By establishing a sovereign and independent State, small peoples with fewer members can obtain an international status equal to that of large peoples with more members because their statehood guarantees them equal membership of the international community. Since States still are the principal members of that community, their juridical equality in the international legal order32 ensures “political equality” in a democratic system of global government constituted by differently-sized human societies that—as peoples—have institutionalised themselves in the form of States in which they constitute national electorates. As long as the sovereign States constitute the primary subjects of international law, “democracy” at the global level can only be related to them (“one State, one vote”) and not to the respective number of their populations (“more populous State, more votes”).33 The juridical equality of States is but a general rule with many agreed exceptions, such as the special position of the five permanent members of the UN Security Council with their continuous representation and veto power in the most important and powerful organ of the World Organisation,34 but these exceptions confirm the general rule. None of them is necessarily related to the larger size of the population; rather, they are based on greater political or financial power. These exceptions are therefore a consequence of the power differential in the international community of States. The sovereign equality of States remains the cornerstone of the present international legal order because it is indispensable for the protection of small peoples and their States from being completely side-lined by larger peoples and their usually more powerful States. It also constitutes an empowerment of small peoples and their citizens by increasing their influence on the international community. It permits small peoples to establish their own independent democratic political system for the government of all matters within their domestic jurisdiction, without outside interference.35 The individual members of the small people thereby obtain a voice and vote as equal citizens in both domestic and international matters, which is more influential than it would be if that people was but a subgroup of the population of a 32

According to the explanation to the principle of sovereign equality of States (note 16), the juridical equality of States is an element of their sovereign equality. 33 But see Rossi (2017), pp. 3, 8. 34 Art. 23 (1), 23 (3) UN Charter. For further agreed exceptions, see Kokott (2011), paras. 48 ff. 35 See the duty not to intervene in matters within the domestic jurisdiction of any State, in accordance with the UN Charter, in the Friendly Relations Declaration (1970) (note 10). It is taken up by the inviolability of States’ political independence as an element of their sovereign equality which is set forth in the same Declaration. See also UNGA Res. 73/169 (note 18), § 9.

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larger State: In a small group of equal citizens, the vote of each citizen accounts for a larger fraction than it would in a large group, so that the individual political influence increases. This gives citizens of small States a legally privileged position in comparison with the citizens of larger States who in contrast usually enjoy a factually privileged position as citizens of more powerful States. The justification for that legal privilege consists in the fact that the small peoples have successfully established their own independent States, albeit often as a result of historical coincidence. Their privilege is mitigated by the fact that the small peoples and States have less international influence in practice. If they want to make up for that, they are free to join forces and establish a larger federal State or quasi-federal entity such as the supranational European Union: By thus pooling their sovereignty, small peoples and States trade in formal legal autonomy for enhanced practical political influence. They also inevitably accept federal or supranational decision-making processes in which their formal sovereign equality is to a considerable extent superseded by considerations of substantive equality based on population numbers.36 The legal status of individuals in the international legal order still falls behind their legal status within States—on the global level, they do not enjoy political equality but only partake in and benefit from the equal rights and self-determination of their peoples and the sovereign equality of their States. When the UN General Assembly recently affirmed that “a democratic and equitable international legal order requires . . . the realisation of . . . [t]he right to equitable participation of all, without any discrimination, in domestic and global decision-making”,37 it formulated an ideal rather than reflecting the current legal situation.

2.4

The Incomplete Transformation of International Law Into a Law of Humankind

International law traditionally was a legal order regulating the coordination of sovereign States as its sole subjects. Meanwhile, the States have increasingly shared their position as subjects of international law with inter-governmental organisations, peoples and individuals. The proliferation and legal upgrading of inter-governmental organisations denotes the transformation of international law into a legal order of inter-State cooperation, while the promotion of peoples and individuals has been the consequence of decolonisation and the human rights revolution. Yet, the States remain the sole original subjects of international law and therefore retain control of the process of creating other—derivative—subjects of international law.38

36

See also Rossi (2017), pp. 9 ff. UNGA Res. 73/169 (note 18), § 6 (h). 38 Walter (2007), para. 26. 37

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The making and unmaking of international law is a power still reserved to the States that they have only partly shared with inter-governmental organisations, but not with peoples and individuals. Even to the extent to which the latter have been co-opted as subjects of international law by the States in the field of human rights, they participate in the international law-making process only indirectly via their States.39 The sovereign equality of States ensures that none of them will be bound by any treaty or new rule of customary international law without its explicit or at least implicit consent.40 This principle of consent ensures that while individual States have no power to prevent the formation of new rules of international law, they can always opt out of any legal obligation.41 Moreover, rules of international law do not by themselves become directly applicable in the legal order of States, but only upon their reception by a norm of national law. Because the equal sovereignty of their States shields individuals from the effects of rules of international law, there is no need to give them any direct influence on international law-making. It is sufficient that international law provides for a democratic system in their States which enables them indirectly to influence international law-making through their governments. In other words, there is no direct legal relationship between individuals and the international community of States in its law-making capacity. It is certainly too early to conclude that international law has been transformed from a legal order of sovereign States into a constitution of humankind.42 Yet, it is now widely recognised that the sovereign States, the inter-governmental organisations established by them as well as the international community they constitute altogether are not ends in themselves but entities established by the peoples in exercising their right of self-determination for the benefit of their individual members, ensuring their freedom, equality, safety, dignity and well-being as humans. Thus it is ultimately the individual humans that are increasingly becoming the centres of reference of the international legal order, just as they have long done in the national legal orders.43

See the preamble of the UN Charter according to which the “peoples of the United Nations” acted through their respective governments when establishing the United Nations Organization. 40 See the “principle that States shall fulfil in good faith the obligations assumed by them in accordance with the Charter of the United Nations” (Friendly Relations Declaration, note 10 [emphasis added]). See also Art. 34 ff. of the Vienna Convention on the Law of Treaties of 23 May 1969 (UNTS vol. 1155, 331) and Olufemi (2006). 41 On the State consent view of international legitimacy and its drawback, see Buchanan (2010), pp. 79, 90 ff. 42 See on that development Peters (2016, 2017). 43 Cançado Trindade (2019), pp. 459, 466 ff. 39

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Institutional Structure of Intergovernmental Organisations: International Parliamentary Assemblies with Particular Emphasis on PACE

There is no institutionalised participation of individuals or their representatives in international law-making. The pertinent processes—the conclusion of treaties and the development of new rules of customary international law—are still monopolised by the sovereign States represented by their governments. Where intergovernmental organisations can adopt decisions binding the Member States, these are reserved to bodies in which the Member States governments are represented (such as the Security Council in the UNO44 or the Committee of Ministers of the Council of Europe45). Such powers hardly ever include law-making in the proper sense; at most, treaties are drafted under the auspices of the organisation which the Member States remain free to sign and ratify.46 Yet, the question of democratic legitimacy of international organisations has been put on the agenda because their practical influence on the making and implementation of international law is increasing.47 All intergovernmental organisations feature an organ representing all the Member States in which each of them usually has one vote, in consequence of the principle of sovereign equality. This holds true for the UN General Assembly and the Committee of Ministers of the Council of Europe.48 In the International Monetary Fund, however, a system of weighted voting has been established: While each Member State is represented in the Board of Governors, the number of votes its Governor is entitled to cast depends on that Member State’s special drawing rights. This gives the U.S. more than 16% of the total votes, Germany more than 5% and Switzerland more than 1%.49 The IMF example has the same legal basis as the privileged position of the permanent members of the UN Security Council: the principle of consent as a consequence of the sovereign equality of the Member States of the respective organisation. Without being granted a privileged position, the richest and most powerful States would not have ratified the Articles of Agreement of the IMF or 44

Art. 25 UN Charter. While the Committee of Ministers can for the most part only issue recommendations, it can take binding decisions pursuant to Art. 8 and Art. 9 of the Statute of the Council of Europe of 5 May 1949 (ETS No. 001) on the expulsion of Member States or the suspension of membership rights, each such decision requiring a two-thirds majority of the representatives casting a vote and of a majority of the representatives entitled to sit on the Committee (Art. 20 lit. d of the Statute). 46 See, e.g., Art. 15 lit. a of the Statute of the Council of Europe. On the law-making powers of the UN Security Council in exceptional cases, see Giegerich (2009), pp. 31, 50 ff. The Assembly of the World Health Organization has the power to adopt regulations which become binding on those Member States which do not reject them or make reservations within a given period (Beigbeder 2013, para. 25). 47 Krajewski (2008). 48 See, e.g., Art. 9, 18 (1) UN Charter; Art. 14 of the Statute of the Council of Europe. 49 Art. XII Sec. 2 lit. e, Sec. 5 of the Articles of Agreement of the International Monetary Fund, www.imf.org/external/pubs/ft/aa/pdf/aa.pdf. 45

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the UN Charter and these organisations would never have been established. Practically speaking therefore, these exceptions are inherent in the principle of sovereign equality. The UN Organization possesses no parliament representing the “peoples of the United Nations” from whom the organisation derives its legitimacy.50 It is exclusively run by representatives of the Member States governments. Propositions to establish a “World Parliament” have so far been unsuccessful.51 Parliamentary assemblies do, however, exist in some regional inter-governmental organisations, consisting of members of the Member States’ parliaments.52 Their “main purpose is to facilitate parliamentary supervision of intergovernmental decision-making processes.”53 The earliest and most important example is the Consultative (Parliamentary) Assembly of the Council of Europe (PACE).54 That the Council of Europe made the first step at parliamentarisation of an intergovernmental organisation comes as no surprise since it was founded to promote individual freedom, political liberty and the rule of law which form the basis of all genuine democracy.55 But PACE has only consultative, supervisory as well as appointment functions56; it lacks legislative functions. Its influence on law-making is limited to being consulted by the Committee of Ministers on draft treaties before these are to be opened for signature by the Member States. Where parliamentary assemblies exist in Europe, their composition mostly follows the model of PACE: The allocation of seats (and votes) to Member States takes their differences in population into account, so that the more populous ones have more seats (and votes) than the less populous ones. But this is done in a very schematic way which allocates a disproportionately high number of seats to the small Member States. In PACE, the smallest Member States with less than 100,000 inhabitants have two and the largest ones with more than 60 million inhabitants 18 seats each.57 This means that those assemblies are treated much more as representations of the juridically equal Member States than of their differently-sized peoples, but they do at least to a certain extent take population differences into account.58 In contrast to this, most international parliamentary assemblies in Africa

See the first line of the preamble of the UN Charter. See, e.g., Leinen and Bummel (2017). 52 Ruffert and Walter (2015), paras. 318 ff. 53 Arndt (2013), para. 1. 54 The assembly’s statutory name is “Consultative Assembly”, but it has long been officially called “Parliamentary Assembly” (see Arndt 2013, para. 12). 55 See the third paragraph of the preamble and Art. 1 lit. a of the Statute of the Council of Europe of 5 May 1949 (ETS No. 1). 56 See Art. 22 ff., Art. 36 lit. b of the Statute; Art. 22 ECHR. Arndt (2013), paras. 14 ff. 57 Art. 26 of the Statute of the Council of Europe. 58 For a survey, see Arndt (2013), paras. 11 ff. 50 51

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and Latin America strictly follow the principle of equal representation of the Member States, despite differences in population.59 From a democratic perspective, it is the equal vote of the Member States in the representative organ which ensures the legitimacy of the decisions of intergovernmental organisations also vis-à-vis the individual citizens who are only indirectly affected because those decisions are not directly applicable. The consultative input of parliamentary assemblies, where they exist, improves that legitimacy only marginally. Primarily, it is a device to enhance control of the national governments’ external actions by the national parliaments in order to maintain the balance within the national separation of powers system.

2.6

Conclusion: Democratic Legitimacy of International Decision-Making Based on Sovereign Equality of States

The sovereign equality of States has a solid human rights basis in the thirdgeneration right of self-determination of peoples as well as in the first- and second-generation human rights of civil and political equality. States being required by international law to establish a democracy, their governments represent the peoples (i.e. the national electorate), giving them a voice internationally. The exclusion of peoples and citizen from the international law-making process is acceptable for two reasons: Firstly, the general unanimity rule ensures that no State is bound by international decisions against its will. Each State can accordingly make internal constitutional arrangements in order to ensure that it will be bound only by those international decisions which conform to the will of the majority of the national electorate. Secondly, those decisions have no direct effect within the States. The fact that the citizens only indirectly participate in international decision-making does therefore not impair the democratic legitimacy of those decisions. It is therefore acceptable that States’ sovereign equality still is the primary means to ensure the democratic character of international decision-making. Since, as a general rule, small peoples in small States have the same voting power at the international level as large peoples in large States, political equality of individuals is not guaranteed internationally. But the overrepresentation of small peoples in international decision-making can be justified as a legitimate instrument of minority protection which is, however, limited to those minorities that successfully organised themselves in the form of a sovereign State.

59 Id., para. 80. The parliamentary assemblies of MERCOSUR and ECOWAS, however, take population size into account (id., paras. 50 ff., 56 ff.). The Joint Parliamentary Assembly established by Art. 17 of the Cotonou Agreement (OJ 2000 L 317/3) consists of one delegate from each of the 78 ACP States and 78 Members of the European Parliament.

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3 Individual Political Equality and Constituent People or State Equality in Federal States: The USA and Germany as Examples 3.1

Modell Conceptions of How to Equilibrate Individual Political Equality and Constituent Peoples’ or States’ Equality in Federal Democracies

Sovereign federal States are composite political entities consisting of several non-sovereign constituent states united by a national constitutional tie. In contrast to this, non-sovereign intergovernmental organisations are composite political entities established by several sovereign Member States united by a public international law tie. Both federal States and intergovernmental organisations are based on the principle of conferral according to which the federation or the organisation possesses only those powers that have been conferred on it by the federal constitution or the founding treaty, whereas all the other powers remain with the constituent states or Member States. In contrast to intergovernmental organisations, in federal States there is a direct legal relation between the federal government and the individual citizens unfettered by constituent state interposition: The citizens are subject to the direct intervention by the federal government, in particular its legislative branch, and conversely enjoy rights judicially enforceable directly against that government. In federal States, different peoples enter into the closest possible legal affiliation with each other. While from a national constitutional perspective these peoples remain separate constituent peoples, they also merge to form one federal people. From the perspective of public international law, only this federal people hold the international right of self-determination, whereas the constituent peoples have no international standing of their own, and in particular no right of secession under international law. The right of internal self-determination of the federal people and the human right of political participation of the individual citizens who constitute this people require that federal States have a governmental system in which democratic standards are appropriately adapted to their federal character, in other words a federal democracy based on the sovereignty of the people. The composite character of federal States is reflected in the composite character of the federal constituent power (pouvoir constituant). This power is vested in the federal people composed of several constituent peoples, each having the original constituent power with regard to one of the constituent states of the federation. The first requirement of a federal democracy is the democratic character of the constituent states’ political system which is commonly prescribed by the federal

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constitution in more concrete terms than in public international law. The second requirement is the individual political equality of the citizens both at the federal and constituent state levels, each citizen being a member of both the federal and one constituent state people. The third requirement is the due consideration of the composite character of the federal people consisting of several constituent peoples of different sizes, each having established their own non-sovereign constituent state. In this regard, the institutionalised participation in the federal government, in particular its legislative branch, of the constituent peoples or states as such is necessary for the maintenance of the federal power equilibrium, because otherwise either the consolidation of the federal into a unitary system or the dismemberment of the federation, i.e. either the implosion or the explosion of the federal State, would be likely. In order to protect the small constituent peoples and their states from being marginalised by the large constituent peoples and their states in the federal governmental process, which would pose a threat to the equilibrium and ultimately the survival of the federal State, their institutionalised participation needs to follow the principle of equality of constituent peoples or states at least as a general rule.60 In a federal democracy, the aforementioned second and third requirements—the political equality of individual citizens and the equality of constituent peoples or states, irrespective of their size—need to be equilibrated. The model mechanism consists of a bicameral federal parliament with equal powers for each chamber. In one chamber, the individual citizens constituting the federal people are represented on equal terms, while in the second chamber either the constituent peoples or the constituent states as political entities (i.e., their governments deriving their powers from the constituent-state electorates) are represented on equal terms.

3.2

USA: Individual Political Equality, Constituent State Equality and Bicameralism in a Decentralised Federal State

The U.S. Constitution of 1787, the first ever constitution of a federal State which derives its legitimacy from the “People of the United States”, confers certain legislative, executive and judicial powers on the federal government, reserving all the others to the constituent states or the people.61 Among those reserved powers is the constitutional autonomy of the constituent states in the sense that they are free to design their own constitutions within the few limits drawn by the U.S. Constitution

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One can conceive of asymmetric forms of federalism with more rights for some and fewer rights for other constituent peoples or states, but these are exceptions requiring specific justification to make them generally acceptable in the respective federation and ensure the latter’s stability. 61 Art. I of the Constitution; Tenth Amendment of 1791.

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and federal laws compatible therewith. The U.S. Constitution guarantees to every state a democratic system of government with political equality, including equal voting rights for all citizens in federal and state elections.62 It establishes a highly decentralised federal system. The individual citizens “have two political capacities, one state and one federal, each protected from incursion by the other.”63 There is no constitutional provision guaranteeing the equality of the constituent states. But since these predated the United States, having been equally sovereign before ratifying the U.S. Constitution, they continue to be equal before that Constitution, unless it expressly provides otherwise. The legislative branch of the federal government is the U.S. Congress, the blueprint of a bicameral federal parliament. It consists of a House of Representatives with 435 members, directly elected by the “the People of the several States”64 on the basis of equal suffrage,65 and a Senate with 100 senators, two for each of the fifty constituent states who are directly elected by the people (citizens) of that state and enjoy a free mandate, just like the representatives.66 The equal representation (suffrage) of (the people of) each state in the Senate is considered to be so important that it cannot even be changed by constitutional amendment.67 The House and the Senate participate on equal terms in the enactment of federal statutes,68 but the Senate has some additional powers not shared by the House.69 All in all, the U.S. Constitution equilibrates the political equality of individual citizens and the institutional equality of the constituent peoples by establishing a two-chamber parliament with two mostly co-equal chambers in which one chamber—the House of Representatives—stands for the principle of individual political equality, the other one—the Senate—for the principle of formal equality of the peoples of the constituent States, both in pure form.70 There is only one minor

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Art. IV, Sections 2 and 4 of the Constitution; Amendments XIV (1868) and XV (1870). U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779, 838 (1995), Kennedy, J., conc. 64 Art. I, Section 2, Clause 1 of the Constitution. 65 The number of representatives was set at 435 by the Apportionment Act of 1911 (Pub. L. 62-5, 37 Stat. 13). They are (re-)apportioned among the 50 states according to their population as measured by the U.S. Census. While California has 53 representatives, seven states have each but one. 66 Seventeenth Amendment to the Constitution of 1913. Before, the senators were elected by the legislatures of each state (Art. II Section 3 Clause 1 of the original Constitution). 67 Pursuant to Art. V of the Constitution, “no State, without its Consent, shall be deprived of its equal Suffrage in the Senate”. 68 Art. I, Section 7 of the Constitution. 69 Such as the treaty-making power and the confirmation power under Art. II, Section 2, Clause 2 of the Constitution. 70 This was the “Great Compromise” between the more populous and the less populous of the thirteen original states effected by the Constitutional Convention of 1787 (Berkin 2002, pp. 96 ff.). 63

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aberration: Each State has at least one representative, which leads to a slight overrepresentation of the least populous states in the House of Representatives.71

3.3

3.3.1

Germany: Political Civic Equality, Constituent State Equality and Pseudo-Bicameralism in a Highly Centralised Federal State The Equality and Limited Constitutional Autonomy of Constituent States

The German federal constitution, the Basic Law (BL), having been adopted by the German people in 1949,72 codifies the principle of conferral in Art. 30, 70, 83 and 92. In comparison with the USA, the German federal system is much more centralised, in particular with regard to legislative powers.73 While recognising the constituent states’ constitutional autonomy, the BL imposes certain structural requirements on their constitutions in order to ensure basic constitutional homogeneity between the two levels of government in Germany.74 In the German federal system, the constituent states enjoy equal status and rights unless provisions in the Basic Law expressly provide otherwise. Accordingly, in the areas of their remaining exclusive competences, there is no majority rule, but the principle of unanimity applies, ensuring that none of them can be outvoted. While their individual veto power is subject to their constitutional duty of federal loyalty and sincere cooperation which obliges them to reach an agreement where necessary for the common good, this does not override the unanimity principle.75 The constituent state equality in this sense is nowhere expressly set forth in the Basic Law. Rather, it was derived from the federal state principle in Art. 20 (1) BL76 by the Federal Constitutional Court (FCC). The Court later used that principle, the general rule of equality in Art. 3 (1) BL and the rule of law principle in Art. 20 (3) BL

71 Art. I, Section 2, Clause 3 of the Constitution. The provision favours states with less than 750,000 inhabitants (Alaska, Vermont, Wyoming). The one elected Representative of the District of Columbia whose population is also below that threshold has no full vote in the House. Moreover, numerous U.S. citizens are not at all represented in Congress (e.g. those living in Puerto Rico). 72 Preamble of the BL. 73 See in particular Hesse (1962) who emphasised the unitary character of German federalism under the Basic Law. Reconfirmed by the Federal Constitutional Court in the judgment of 30 July 2019 (2 BvR 1685/14, 2 BvR 2631/14), margin note 244. 74 Art. 28 BL. 75 See the Federal Constitutional Court decisions in BVerfGE 1, 299 (315); 41, 291 (308). 76 Art. 20 (1) BL: “The Federal Republic of Germany is a democratic and social federal state.” I used the English translation of the Basic Law available at www.gesetze-im-internet.de/englisch_gg/ englisch_gg.pdf.

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as sources of the federal government’s obligation to treat the constituent states equally.77

3.3.2

The Two Dimensions of Human Equality in the BL

Individual human equality in general is guaranteed by Art. 3 (1) BL,78 and individual political equality by Art. 33 (1) – (3) BL.79 The equal right to vote and stand for elections is separately set forth in Art. 28 (1) sentence 2 BL with regard to elections at state and sub-state levels, and in Art. 38 (1) BL with regard to the federal level. The FCC has interpreted Art. 3 (1) BL as enshrining the equal right to vote in the German part of the elections to the European Parliament: It has used the provision guaranteeing general human equality to fill in a gap in the constitutional protection of civic equality regarding the EU level.80

3.3.3

The German Legislature’s Pseudo-Bicameralism and Weighted Voting in the Bundesrat

The Basic Law establishes a federal parliament and entrusts it with the exercise of the legislative powers which it confers on the federation. Being composed of the Bundestag (Federal Diet) and the Bundesrat (Federal Council), it is not a bicameral parliament in the proper sense because the Bundesrat does not enjoy powers equal to those of the Bundestag: As a general rule, federal statutes are passed by the Bundestag and the Bundesrat has no more than a suspensive veto. The enactment of federal statutes requires the consent of the Bundesrat only in cases exhaustively enumerated in the Basic Law.81 The Bundestag consists of representatives of the German people directly elected on the basis of equal suffrage and enjoying a free mandate;82 the Bundesrat consists of members of the constituent state governments which appoint and recall them and can give them instructions.83 The formal inclusion of constituent state institutions in

77 See the FCC decisions in BVerfGE 72, 330 (404); 86, 148 (251, 272). On the equal constitutional status of the constituent states in Germany see Isensee (2008), § 126 paras. 137–153. 78 Art. 3 (1) BL: “All humans shall be equal before the law.”. 79 Art. 33 BL: “(1) Every German shall have the same political rights and duties in every Land. (2) Every German shall be equally eligible for any public office according to his aptitude, qualifications and professional achievements. (3) Neither the enjoyment of civil and political rights, nor eligibility for public office, nor rights acquired in the public service shall be dependent upon religious affiliation. No one may be disadvantaged by reason of adherence or non-adherence to a particular religious denomination or philosophical creed.” [(4)-(5) not reproduced.]. 80 See the FCC decisions in BVerfGE 129, 300; 146, 327. 81 Art. 77, 78 BL. 82 Art. 38 BL. 83 Art. 51 (1) BL.

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the federal decision-making process, which corresponds with a long-standing German constitutional tradition dating back to monarchic times,84 gives the constituent states’ political establishments (and not their peoples) influence on the federal level. In the Bundesrat, each constituent state has at least three votes, states with more than two million inhabitants have four, states with more than six million inhabitants five and states with more than seven million inhabitants six votes.85 The votes of each constituent state may only be cast as a unit.86 Since the Basic Law guarantees a democratic system of government to each constituent state,87 its representatives in the Bundesrat enjoy democratic legitimacy that is conferred by the respective constituent state electorate. While the Bundestag stands for the principle of political equality in its pure form, the Bundesrat implements the principle of equality of the constituent peoples only in a modified version, because the number of votes allocated to each constituent state government depends on the number of inhabitants of the respective state. The system takes the different sizes of the constituent peoples into account, but in a broad-brush form, giving only twice as many votes to states which have more than ten times as many inhabitants. This “graded equality”88 is an obvious compromise between the formal equality of all constituent peoples irrespective of their numerical size and their substantive equality in proportion to their different numerical size. In accordance with the German constitutional tradition since 1815,89 it amounts to an underrepresentation of small constituent peoples in the Bundesrat, if one uses the formal equality of all constituent peoples irrespective of their numerical size as the standard of comparison,90 or to their overrepresentation, if one uses the substantive equality of the constituent peoples in proportion to their numerical size as the standard of comparison. There is a further element of compromise in the assessment of the number of votes each constituent state is accorded in the Bundesrat, because it is based on the number of its inhabitants, not citizens. It also includes foreigners and stateless persons who belong to that state’s resident population, but are not part of its constituent people and thus have no right to vote in state elections.91

84

The Imperial Diet of the Holy Roman Empire before 1806 consisted of delegates of the monarchs and free cities constituting that Empire. For the later period, see Art. IV, VI of the Act of the German Confederation—Deutsche Bundesakte (DBA) of 8 June 1815; Art. 6 of the Reich Constitution of 16 April 1871 (RV 1871); Art. 63 of the Reich Constitution of 11 August 1919 (WRV) - texts reprinted in Boldt (1987), pp. 196, 456 and 490. 85 Art. 51 (2) BL. 86 Art. 51 (3) BL. 87 Art. 28 (1), (3) BL. 88 See Müller-Terpitz (2018), Art. 51 para. 51. 89 See Art. IV, VI DBA; Art. 6 RV 1871; Art. 61 WRV (see note 84). 90 As explained in para. 2.3, this is the standard of public international law with regard to the equality of peoples and their States. 91 See Müller-Terpitz (2018), Art. 51 paras. 51 ff. as to the compatibility of that assessment method with the Basic Law’s own principle of democracy.

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Conclusion

All in all, the German Basic Law equilibrates the individual political equality and the institutional equality of the constituent peoples by establishing a pseudo-bicameral parliament in which the Bundestag, standing for the principle of individual political equality, is predominant and the Bundesrat, standing for the principle of graded equality of the constituent peoples, plays only a supportive role in legitimating federal legislation.

4 The Quasi-Federal European Union: Individual Political Equality, Member State Equality and Quasi-Bicameralism 4.1

General Assessment of the European Union’s Quasi-Federal and Democratic Character

The European Union is a multilevel and multinational polity somewhere between a constitution-based federal State and a treaty-based international intergovernmental organisation of a confederal character, its exact classification being a matter of dispute. While having a composite character, it is not, and has never claimed to be, a sovereign federal State.92 In contrast to a federal State, Member States retain their sovereignty and are permitted to withdraw from the Union at will (Art. 50 TEU). In order to distinguish the EU from a federal State, it should be characterised as a quasi-federal or hybrid system.93 According to the settled case law of the ECJ, EU law is autonomous both with regard to the legal orders of the Member States and public international law.94 It can most appropriately be qualified as a supranational legal order sui generis with characteristics of both international and federal constitutional law, making it quasifederal. The supranational EU law has its own constitutional framework and sophisticated institutional structure.95 As the ECJ stated, “EU law is characterised by the fact that it stems from an independent source of law, the Treaties, by its primacy over the laws of the Member States . . . and by the direct effect of a whole series of provisions which are applicable to their nationals and to the Member States themselves . . .”96 92

Opinion 2/13 (ECJ 18 December 2014), ECLI:EU:C:2014:2454, para. 156. On the quasi-federal character of the EU, see Oeter (2011), pp. 55 ff. 94 Case 11/70, Internationale Handelsgesellschaft mbH gegen Einfuhr- und Vorratsstelle für Getreide und Futtermittel (ECJ 17 December 1970) ECR 1970, p. 1125 para. 3; Opinion 2/13 (ECJ 18 December 2014), ECLI:EU:C: 2014:2454, para. 170; Case C-284/16, Achmea (ECJ 6 March 2018), ECLI:EU:C:2018:158, para. 33. 95 Opinion 2/13 (ECJ 18 December 2014), ECLI:EU:C:2014:2454, para. 158. 96 Opinion 2/13 (ECJ 18 December 2014), ECLI:EU:C:2014:2454, para. 166. 93

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While the EU and its predecessor organisations (in particular the European Economic Community [EEC]) were founded by sovereign States through the conclusion of international treaties, they have early on been characterised by the ECJ as “a new legal order, possessing its own institutions, for the benefit of which the Member States thereof have limited their sovereign rights, in ever wider fields, and the subjects of which comprise not only those States but also their nationals”.97 Accordingly, Art. 1 (1) and (2) TEU define the European Union as having been established between the Member States, but as a stage in the process of creating an ever closer union among the peoples of Europe. The Member States are the institutional subjects and their citizens the individual subjects of EU law. Art. I-1 (1) sentence 1 of the abortive Treaty establishing a Constitution for Europe (TCE)98 had been clearer in this respect: “Reflecting the will of the citizens and States of Europe to build a common future, this Constitution establishes the European Union, on which the Member States confer competences to attain objectives they have in common.” This remarkable sequence, in which the citizens of Europe were mentioned first, the States of Europe only second as the subjects of the EU, was not adopted by the Treaty of Lisbon. The preambles of the TEU and TFEU identify the contracting Member States as the joint holders of the Union’s constituent power (pouvoir constituant) in the formal sense. According to Art. 48 TEU, they are also the joint holders of the Treaty amending power. In the substantive sense, however, both powers are derived from the citizens of the Member States who together constitute the citizenship of the Union99 and were called upon to ratify the Treaties either directly through a referendum or indirectly through the national parliaments elected by them.100 In other words, the legitimation of the EU is derived from the sovereignty of the Union citizens in their entirety made up of the sovereign peoples of the sovereign Member States. The latter have pooled their sovereignty on a higher level of composite governmental organisation in order to enhance their problem-solving capacity and international power potential. The dual legitimation basis of the European integration project provided by the Member States as well as their citizens has ab initio been reflected in the former European Communities’ institutional structure: There has always been the Council, consisting of members of the national governments and subject to their instructions, and the Assembly, originally consisting of delegates sent by the national parliaments. The introduction of direct elections had been envisaged from the

97 Opinion 2/13 (ECJ 18 December 2014), ECLI:EU:C:2014:2454, para. 157 (referring to its early judgments in the cases van Gend & Loos and Costa v. ENEL). But see the German Federal Constitutional Court stating that European unification was based on “a treaty union of sovereign states” (BVerfGE 123, 267 [357]). 98 Of 29 October 2004, OJ C 310/1 (2004). 99 See Borgmann-Prebil and Ross (2013) Art. 9 TEU, para. 22. 100 Art. 54 TEU; Art. 357 TFEU.

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beginning,101 but was realised only in 1976.102 The Members of the Assembly have always enjoyed a freedom of mandate.103 At first, the Council mostly decided unanimously and the Assembly had only consultative functions. But with the gradual deepening of the integration process in pursuance of the goal to create “an ever closer union among the peoples of Europe”,104 qualified majority voting in the Council was extended to most policy fields and the Assembly, renamed as European Parliament, became a co-equal decision-maker, in particular with regard to legislation and the EU budget.105 Yet, there are still a number of important areas where the Council can only act unanimously and the European Parliament plays an inferior role, such as in the Common Foreign and Security Policy,106 or where even the subsequent ratification of EU acts by all the Member States is required, such as with regard to the European electoral law.107 Even in the policy areas where the Council could decide by qualified majority voting, it prefers to reach a consensus and avoid a formal vote until today.108 This is done to enhance implementation of Council decisions which could otherwise be impeded by (illegal) resistance from outvoted Member States. The institutional framework of the EC/EU has always only been quasi-bicameral. It has also always been characterised by the existence of the Commission as a political institution that is charged with promoting the general interest of the Union, while being completely independent in carrying out its responsibilities. Chief among these is the making of proposals for legislative and other acts and the supervision of the application of Union law under the control of the CJEU.109 In executing its power of initiative as well as its supervisory function, the Commission ensures both the equality of Member States before EU law and the equality of Union citizens.

101

See Art. 21 of the European Coal and Steel Community Treaty of 18 April 1951 (French version available at https://eur-lex.europa.eu/legal-content/FR/TXT/PDF/?uri¼CELEX:11951K/TXT& from¼DE; Art. 138 (3) of the EEC Treaty of 25 March 1957 German version available at https:// eur-lex.europa.eu/legal-content/DE/TXT/PDF/?uri¼CELEX:11957E/TXT&from¼DE). 102 Act concerning the election of the representatives of the Assembly by direct universal suffrage of 20 September 1976 (OJ L 278/5 [1976]). 103 See now Art. 2, 3 of the Statute for Members of the European Parliament of 28 September 2005 (OJ L 262/1[2005]). 104 Art. 1 (2) TEU. 105 See Art. 294 TFEU (“ordinary legislative procedure”) and Art. 314 TFEU. 106 Art. 31, 36 TEU. 107 Art. 223 (1) TFEU. 108 Rossi (2017), p. 15. 109 Art. 17 (1) – (3) TEU; Art. 258, 263 TFEU. See Rossi (2017), pp. 16 ff.

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Constitutional Precepts for Member States (Art. 2 TEU) v. Constitutional Autonomy of Member States (Art. 4 (2) TEU)

Art. 2 TEU sets forth requirements concerning the constitutional structure of Member States which include democracy, the rule of law, equality and non-discrimination and are more akin to the specific precepts in federal constitutions than the rather general requirements of public international law. They do, however, leave enough room for Member States’ constitutional autonomy that is guaranteed by Art. 4 (2) sentence 1 TEU, specifically obliging the EU to respect “their national identities, inherent in their fundamental structures, political and constitutional, inclusive of regional and local self-government.” The obligation to respect Member States’ national identities had first been introduced by the Treaty of Maastricht as a cornerstone of the newly founded European Union and originally been linked to the democratic character of the national systems of government.110 The Treaty of Amsterdam detached that Union obligation to respect from the Member State obligation to democracy etc. and transferred it to another paragraph of the same article,111 an arrangement which was left untouched by the Treaty of Nice.112 The Treaty of Lisbon extended and concretised both the Union obligation to respect national constitutional identities113 and the Member States’ obligation to uphold constitutional values and transferred the latter to a separate provision (Art. 2 TEU), although the two obligations are closely connected and interdependent. Art. 4 (2) sentence 1 TEU is the functional equivalent in EU law of the right of internal self-determination that the people of each Member State enjoy under public international law, entitling them to determine their constitutional structure without external interference and subject only to certain legal constraints voluntarily accepted by them. The question how to reconcile the Union’s duty to respect the Member States’ constitutional identities pursuant to Art. 4 (2) sentence 1 TEU and the Member States’ duty to fulfil their treaty obligations pursuant to Art. 4 (3) TEU, including those arising from Art. 2 TEU, which have primacy over national law, including national constitutional law,114 has not yet been fully answered.115

Art. F (1) TEU of 7 February 1992 (OJ C 191/1 [1992]): “The Union shall respect the national identities of its Member States, whose systems of government are founded on the principles of democracy.” 111 Art. 6 (1), (3) TEU as amended by the Treaty of Amsterdam of 2 October 1997 (OJ C 340/145 [1997]). 112 Treaty of Nice of 26 February 2001, OJ C 80/1 (2001). 113 Art. 4 (2) sentence 1 TEU. 114 See Declaration (no. 17) concerning primacy (OJ C 202/344 [2016]). Case C-409/06, Winner Wetten GmbH gegen Bürgermeisterin der Stadt Bergheim (ECJ 8 September 2010), ECLI:EU: C:2010:503, paras. 53 ff. 115 See Giegerich (2013), pp. 49, 59 ff. See also Rossi (2017), pp. 28 ff. 110

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Member State Equality Before the Treaties

Art. 4 (2) sentence 1 TEU on the equality of Member States before the Treaties first appeared in Art. I-5 (1) sentence 1 TCE. It had not been included in Part I Art. 5 (1) sentence 1 of the original draft of that Constitution adopted by the Convention but was later added by the Intergovernmental Conference and placed in the context of national identity protection.116 The reason for that addition was the smaller Member States’ concern over the extension of qualified majority voting in the Council and the ensuing risk of being outvoted and thus unable to protect their interests adequately.117 Art. 4 (2) sentence 1 TEU is integrated in the “common provisions” in Title I of the TEU which lay down fundamental constitutional concepts of the Union, in particular regarding EU “federalism”. The central provision on the relationship between the EU and its Member States is Art. 4 TEU,118 comprising the principle of conferred powers in paragraph 1, further elaborated in Art. 5 TEU, the Union’s obligation to respect the equality, national identities and essential functions of the Member States in paragraph 2 and the principle of reciprocal loyal cooperation in paragraph 3. Art. 4 (2) sentence 1 TEU did not introduce any new rule, but only codified a pre-existing one: The European integration process had always been characterised by an unwritten general principle of Member State equality before the Treaties,119 constituting the functional equivalent and transposition into primary EU law of their sovereign equality under public international law.120 This principle requires equal treatment of Member States with regard to their representation in EU institutions121 as well as the enactment, application and implementation of EU law, any distinctions having to be justified by objective and legitimate reasons.122 One particular consequence of Art. 4 (2) sentence 1 TEU is that “new Member States are to be treated on the basis of equality with the old Member States.”123 Just like their sovereign equality in public international law, Member State equality before the Treaties in EU law is but a general rule subject to differing more specific primary law provisions,124 such as those in Protocols reserving special rights to certain Member States125 or those that until 2014 stipulated weighted voting in the Council on the basis of different population numbers when it acted by a 116

Calliess and Puttler (2016), Art. 4 EUV para. 7. Puttler (2016), Art. 4 EUV para. 9; Franzius (2017), Art. 4 EUV para. 20. 118 Schill and Krenn (2018) Art. 4 EUV para. 1. 119 Franzius (2017), Art. 4 EUV para. 20. 120 Obwexer (2015), Art. 4 EUV para. 18. 121 See, e.g., Art. 16 (9), Art. 17 (5) subpara. 2 TEU. See Blanke (2013), Art. 4 para. 15. 122 Obwexer (2015), Art. 4 EUV, paras. 21–22; Schill and Krenn (2018), Art. 4 EUV paras. 8, 10 ff. 123 Case C-336/09 P, Poland v Commission (ECJ 26 June 2012), ECLI:EU:C:2012:386, para. 37. 124 Obwexer (2015), Art. 4 EUV para. 24. 125 See, e.g., Protocols No. 15, 16, 19, 21 and 22, read together with Art. 51 TEU. 117

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qualified majority.126 The foundation of these exceptions to Member State equality ultimately is the rule of unanimity governing Treaty amendments—itself the product of the Member States’ sovereign equality: Amendments enter into force only after having been ratified by all the Member States.127 Every Member States thus has a veto position which it can (ab-)use to secure special rights for itself.128

4.4

The Two Dimensions of Human Equality in EU Law

The two dimensions of human equality are also protected by EU law, based on a fundamental general principle of equality developed by the ECJ and requiring “that similar situations shall not be treated differently unless differentiation is objectively justified”129 and “that different situations must not be treated in the same way unless such treatment is objectively justified”.130 Civic equality in general is the subject-matter of several fundamental rights provisions in the CFR131 that are primarily addressed to the EU and to the Member States only when they are implementing Union law.132 It is also enshrined in Art. 2 and Art. 3 (3) subpara. 2 TEU and in Art. 8, 10, 18 and 19 TFEU.133 Apart from the abstract and unspecific Art. 2 TEU, these provisions apply only within the general scope of application of the Treaties.134 Based on a general principle of equality, the ECJ has always attached great importance to the uniform application of EU law throughout the Union and long ago formulated the interpretative guideline that EU law provisions which make no express reference to the law of the Member States need to be given an autonomous and uniform interpretation throughout the EU.135 Political equality is specifically guaranteed in Art. 9 sentence 1 TEU which is the first provision on democratic principles in Title II of the TEU and sets forth that “[i]n all its activities, the Union shall observe the principle of equality of its citizens, who

126

See below 4.5.3. Art. 48 (4) TEU. 128 See Wouters and Schmitt (2017), pp. 43, 57 ff., on the question whether there are legal constraints, such as the core principles of the EU constitution, which limit the power of the EU pouvoir constituant constitué under Art. 48, 49 TEU to deviate from the principle of equality. 129 Case 117/76 and Case 16/77 (joined), Ruckdeschel (ECJ 19 October 1977), ECR 1977, 1753 para. 7; Case 147/79, Hochstrass (ECJ 16 October 1980), ECR 1980, 3005 para. 7. See Haag (2015), Art. 9 EUV para. 5. 130 Case C-579/13, P and S v Commissie Sociale Zekerheid Breda (ECJ 4 June 2015), ECLI:EU: C:2015:369, para. 41. See Magiera (2018), Art. 9 EUV para. 6. 131 Art. 20, 21, 23 CFR. 132 Art. 51 (1) CFR. 133 See also the survey by Wouters and Schmitt (2017), pp. 44 ff. 134 See in that sense Art. 18 TFEU. 135 Case C-396/09, Interedil (ECJ 20 October 2011), ECLI:EU:C:2011:671, para. 42, with further references. 127

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shall receive equal attention from its institutions, bodies, offices and agencies.” The following sentences explain that every national of a Member State shall be a citizen of the Union and that citizenship of the Union shall be additional to and not replace national citizenship. The TCE had placed the guarantee of Art. 9 sentence 1 TEU in a separate article (Art. I-45) entitled “The principle of democratic equality”. The other sentences of the current Art. 9 TEU had been separately enshrined in Art. I-10 (1) TCE. Their combination in one article by the Treaty of Lisbon was criticised as an instance of poor editing not least because Art. 9 sentences 2 and 3 TEU copy Art. 20 (1) sentences 2 and 3 TFEU and sentence 1 of Art. 9 TEU should have followed and not preceded sentences 2 and 3.136 Art. 9 sentence 1 TEU obliges the EU institutions etc. to observe the equality of its citizens with regard to their right to participate in the democratic life of the Union (Art. 10 (3) sentence 1 TEU).137 Since the most important aspect of that right, the representation in the European Parliament, is subject to the special provision of Art. 14 (2) TEU,138 the practical relevance of Art. 9 sentence 1 TEU is rather limited, despite its symbolic importance.139 While Art. 9 sentence 1 TEU is only addressed to the EU, the political equality of Union citizens is also protected from interferences by the Member States. One specific democratic aspect of this Member State-directed claim of political equality constitutes the subject-matter of Art. 22 (1), (2) TFEU and Art. 39 (1), 40 CFR: the right of every citizen of the Union residing in a Member State of which he or she is not a national to vote and to stand as a candidate at municipal elections and elections to the European Parliament under the same conditions as nationals of that State. In other words, in these regards any discrimination on grounds of nationality between citizens of the Union residing in the same Member State is prohibited. However, national parliamentary elections are not covered by that guarantee of political equality.140 A further democratic aspect was elaborated by the Court of Justice: Even to the extent to which Member States are free to define the conditions of the right to vote and to stand as a candidate in elections to the European Parliament of its own citizens,141 the principle of equal treatment prevents the criteria chosen from resulting in the different treatment of nationals who are in comparable situations, unless that difference in treatment is objectively justified.142 136 See Ruffert (2016), Art. 9 EUV para. 22; Schönberger (2011), Art. 9 EUV paras. 4 ff., 20; Haag (2015), Art. 9 EUV para. 3. 137 See Haag (2015), Art. 9 EUV para. 4; Heselhaus (2017), Art. 9 EUV paras. 14, 16. 138 See below 4.5.4. 139 See Heselhaus (2017), Art. 9 EUV para. 18; Haag (2015), Art. 9 EUV para. 7. 140 See below 4.5.3. 141 See Case C-650/13, Delvigne (ECJ 6 October 2015), ECLI:EU:C:2015:648, paras. 40 ff., where the Court deduced from Art. 39 (2) CFR read together with Art. 14 (3) TEU a right of Union citizens to vote in elections to the European Parliament that is opposable against their own Member State and whose exercise may only be limited in accordance with Art. 52 (1) CFR. 142 Case C-300/04, Eman and Sevinger (ECJ 12 September 2006), I-8060 paras. 40 ff.: While the Netherlands was thus free to exclude Dutch citizens not residing in its territory from the election, it

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4.5.1

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Equilibrating Member State Equality and Individual Political Equality in the EU’s System of Representative Democracy Dual Democratic Legitimation of EU Decision-Making

The model of representative democracy established at EU level is as sui generis as the Union’s quasi-federal system of government.143 The democratic principles characterising that system are set forth in Title II (Art. 9–12) of the TEU. The fact that the political equality of the citizens of the Union features prominently in the very first sentence of the first article of that title indicates the importance which the drafters of the Treaty establishing a Constitution for Europe and subsequently the Lisbon Treaty attached to the “principle of democratic equality”.144 More importantly, however, it proves that the democratic legitimacy of the Union is primarily (but not only) based on the citizens of the Union in their entirety who are each always also citizens of at least one Member State.145 This assessment is reconfirmed by Art. 10 TEU explaining the principle of representative democracy on which the functioning of the Union is founded. In para. 2, the provision reveals the dual legitimation basis of the EU decision-making process—it is derived firstly from the politically equal citizens of the Union who are directly represented in the European Parliament (i.e., the European electorate), and secondly from the politically equal Member States represented in the Council by their governments that are themselves democratically accountable to their national Parliaments or their citizens (i.e., the national electorates), in compliance with Art. 2 TEU. The EU governmental system has thus rightly been called a “composite democracy”.146 Accordingly, the legitimation derived from the citizens of the Union in their entirety takes two concurrent routes—first, the direct route via the European Parliament (in which they are all represented) and secondly, the indirect route via the national Parliaments (in each of which the citizens of the Union sharing the same national citizenship are represented) and the Council. In other words, the citizens of the Union play the central role in the democratic legitimation of the EU,147 yet in their indissoluble dual capacity as equal Union citizens and equal citizens of equal Member States. The TEU does not refer to a “European people” because there is not (yet) any such self-conscious transnational corporation capable of political action, bearing

could not make distinctions between citizens on the basis of their place of residence in different parts of the Netherlands without objective justification. 143 Haag (2015), Art. 9 EUV para. 2. 144 That was the headline of the original Art. I-45 TCE. The Treaty of Lisbon did not adopt any of the headlines of the TCE. 145 Art. 9 sentences 2 and 3 TEU. 146 Heselhaus (2017), Art. 9 EUV paras. 3, 6: “Demokratieverbund”. 147 Haag (2015), Art. 9 EUV para. 10.

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comparison with a federal people in a federal State.148 This is why the EU does not have the collectivist legitimation basis typical of federations.149 But the TEU, in the context of the democratic foundations of the EU, no longer refers to the distinct peoples of the Member States either, as did the EC Treaty in Art. 189 (1) until 2009. In its current version it only mentions the “peoples of Europe” in Art. 1 (2) TEU among whom an ever closer union is to be gradually created in the course of the European integration process. Art. 16 (4) TEU speaks of the “population of the Union.” In contrast to public international law, the peoples of the Member States are not as such subjects of EU law, but only their individual members in their capacity as citizens of the Union.150

4.5.2

Quasi-Bicameralism at EU Level

The institutional structure of the EU reflects the dual democratic legitimation of the Union’s decision-making process by establishing two political decision-making bodies, the European Parliament (representing the equal Union citizens altogether) and the Council (representing the equal Member States, each of them represented by its government, i.e. the national political establishment).151 Initially, the European decision-making process was completely dominated by the Council that acted mostly unanimously, while the Assembly exercised only powers of deliberation and of control.152 Today, the European Parliament exercises legislative and budgetary functions jointly with the Council as well as further functions of political control and consultation by itself.153 The EU governmental system is still quasi-bicameral because the European Parliament’s powers are not yet co-equal to those of the Council. In some matters, it is only consulted or informed, but has no co-decision powers.154 Most importantly, while the consent of the European Parliament is required for the admission of new Member States,155 it is only consulted in the

148

Huber (2018), Art. 14 EUV para. 46. See the German Federal Constitutional Court in its judgment on the Treaty of Lisbon (BVerfGE 123, 267 [372, 405]). 149 Heselhaus (2017), Art. 9 EUV para. 5. See, e.g., the preambles of the U.S. Constitution of 1787 (“We the People of the United States . . .”) and the BL. 150 Schönberger (2011), Art. 9 EUV para. 17. 151 Art. 10 (2) TEU. 152 See Art. 137 EEC Treaty. 153 Art. 14 (1) TEU. 154 See, e.g., Art. 81 (3), Art. 87 (3), Art. 215 (1), (2) TFEU. Moreover, while the Council always needs to make decisions actively, the European Parliament sometimes can approve Council decisions by not taking a decision (Art. 294 (7) lit. a TFEU). 155 Art. 49 TEU.

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treaty amendment process so that it does not fully participate in the constitutional amendment power at EU level.156 The competences of the European Parliament have been extended enormously in the course of the European integration process. This was indeed required by the principle of democracy, because with the deepening of European integration, the Council increasingly acted by a qualified majority. This inevitably decreased the Council’s indirect legitimation via the national parliaments, because the parliaments of Member States whose representatives had been outvoted could no longer provide the necessary input legitimacy to that particular Council decision. Therefore, concurrently with the extension of qualified majority voting in the Council, the powers of the European Parliament had to be extended so that today it has co-decision powers in almost every instance in which the Council decides by qualified majority,157 notably in the ordinary legislative procedure.158 This guarantees that the European parliamentarians who also represent the citizens of the outvoted Member States159 provide the missing input legitimacy.160 Against this background, the proposition that the indirect legitimation via the national parliaments still constitutes the primary route to guarantee the democratic legitimacy of EU action simply cannot be maintained.161 The EU’s quasi-bicameral system comprises the European Parliament as the representation of the equal Union citizens and the Council as the representation of the equal Member States. The question is how these two variants of equality are reflected in the composition and voting rules of the two EU institutions and how they relate to each other.

4.5.3

The Council as the Representation of the Equal Member States

The equality of Member States before the Treaties according to Art. 4 (2) sentence 1 TEU naturally translates to their equal representation in the Council as the 156

Art. 48 TEU. Representatives of the European Parliament, however, participate in the Convention that makes a recommendation to the conference of representatives of Member States’ governments concerning treaty amendments (Art. 48 (3), (4) TEU). 157 In this regard, the Common Foreign and Security Policy is still exceptional. In the few instances in which the Council may act by qualified majority in CFSP matters (Art. 31 (2)-(4) TEU), the European Parliament still has no decision-making power (Art. 36 TEU). From a democratic point of view, the non-participation of the European Parliament is made more tolerable by the fact that the adoption of legislative acts in CFSP matters is excluded (Art. 24 (1) (2) sentence 3, Art. 31 (1) subpara. 1 sentence 2 TEU). But since the Council deliberates behind closed doors, CFSP decision-making remains non-transparent, in the absence of open parliamentary debate. 158 Art. 294 TFEU. 159 See 4.5.4. 160 See Heselhaus (2017), Art. 9 EUV para. 5. 161 The ECtHR confirmed already in 1999 that the primary route was via the European Parliament (Matthews v. UK, No. 24833/94, para. 52). But see the contraposition of the German FCC in BVerfGE 89, 155 (182 ff.); 123, 267 (364 f.).

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institution where Member States’ interests are fed into the EU decision-making process. But does equal representation of Member States mean formal equality (one Member State, one vote), or rather substantive equality in the sense that each Member State is allocated the number of votes resulting from the application of the same substantive criterion or criteria, such as population, economic strength, political or financial power? While formal equality favours the small and weak over the large and strong Member States, substantive equality usually favours the latter. The only substantive criterion compatible with democratic standards is the size of the population (comprising either the citizens or the habitual residents irrespective of citizenship162). If the substantive equality of Member States is based on their population (no matter whether citizens or habitual residents), it is approximated to the equality of the citizens of the Union which make up the large majority of the population of every Member State. As we have seen, in public international law sovereign equality as a general rule means equality in the formal sense, but there are exceptions specifically with regard to State representation or voting rights in international bodies that are based on aspects of substantive equality, such as financial or military power.163 The federal model introduced by the U.S. Constitution of 1787 is based on strict formal equality of constituent states concerning their representation and suffrage in the Senate.164 The EU has taken a path more closely resembling the German Bundesrat model of weighted voting based on population.165

4.5.3.1

The Era of Weighted Voting (1952–2014)

In difference to both the international and the U.S. model, Member State representation and suffrage in the Council of the European Communities/Union has always been a matter of substantive equality in order to effect a compromise between the more populous large and the less populous small Member States.166 The statement of the German FCC that “the Council is not a second chamber as it would be in a federal state but the representative body of masters of the Treaties and accordingly, it is not constituted by proportional representation but according to the idea of the equality of states” is therefore only partly true and thus misleading.167

162

But see the German FCC in BVerfGE 83, 37 (52) according to which the German Basic Law’s concept of democracy is based on citizenship and not permanent subjection to German sovereign authority so that the exercise of political rights must be reserved to the Germans and may not be extended to non-German permanent residents. In this sense, population is a democratic criterion only if limited to citizens. However, not even the German system lives up fully to that FCC standard, because the weighted voting in the Bundesrat is based on resident population, including non-citizens (see 3.3.3). 163 In the IMF: financial power; in the UN Security Council: military power. See 2.3., 2.5. 164 See 3.2. 165 See 3.3.3. 166 See Vedder (2018), Art. 4 EUV para. 19. 167 BVerfGE 123, 267 (368).

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In the Council of the European Coal and Steel Community, each Member State was represented by one member of its government. But where the Council was authorised to adopt decisions by majority, the absolute majority of Council members (i.e., four of six) was required, including the vote of the representative of one Member State that accounted for at least 20% of the total value of the coal and steel production in the Community.168 The criterion used was economic power, but it largely coincided with population size. In practice, it assured a veto to each France and Germany.169 The EEC Treaty introduced weighted voting where the adoption of conclusions of the Council required a qualified majority,170 giving four votes to each of the three large Member States (France, Germany and Italy with roughly equal population size), two each to Belgium and the Netherlands and one to Luxembourg. Where the Council was required to act upon the proposal of the Commission, conclusions were to be adopted by twelve votes (so that the three large Member States alone could make the decision), in all other cases also by twelve votes including a favourable vote by at least four members (so that the three large Member States needed the support of a small one and the Council conclusions were supported by two thirds of the Member States).171 The minimum number of votes required for a qualified majority—12 out of 17—amounted to a little over 70% of the available votes. The criterion or criteria used by the EEC Treaty to allocate the number of votes to the Member States is uncertain. It could have been population or economic strength, or both (which were largely concurrent anyway). After the EC had expanded to twelve Member States, the Maastricht Treaty updated that system of weighted voting in 1992, largely retaining the Member States’ relative voting power: The four large Member States, now including the UK, each had ten votes (although the German population had become considerably larger due to the German reunification in 1990), Spain eight, Belgium, Greece, the Netherlands and Portugal five each, Denmark and Ireland three each, and Luxembourg two.172 The large Member States thus retained an equal number of votes as well as the previous distance to the medium-sized Member States (Belgium etc.). Luxembourg’s vote was downgraded vis-à-vis that group. The minimum number of votes required for a qualified majority—54 out of 76 (coming from at least eight members, if no Commission proposal was required)—amounted to a little over 71% of the available votes. Two-thirds of the Member States had to support the adoption of conclusions for which no Commission proposal was required. The fact that Greece and Portugal were given the same number of votes as Belgium and the

168

Art. 28 ECSC Treaty (1951). Sahm (1951), pp. 39 ff. 170 Most Council decisions required unanimity until the entry into force of the Single European Act of 1986 (see Rossi [2017], pp. 11 ff.). 171 Art. 148 (2) EEC Treaty (1957). 172 Art. 148 (2) of the EC Treaty, as amended by the Treaty of Maastricht of 7 February 1992 (consolidated version in OJ C 224/ 6 [1992]). 169

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Netherlands even though their economy was much weaker made clear that population was the more important allocation criterion. The Treaties of Amsterdam and Nice effected new updates but left the system as such in place.173 With the Protocol on the Enlargement of the EU174 that was attached to the Treaty of Nice in view of the impending accession of ten new Member States and to be applied as from 1 January 2005, the spread of the number of votes was considerably increased: The four large Member States were now given 29 votes each and Luxembourg as the smallest Member State four, so that the relation became more than 7:1 while it had constantly been 5:1 before. Also, Spain now received 27 votes, and the Netherlands 13, compared to 12 for Belgium, and Greece and Portugal 12, compared to 10 for Austria. It seems that the relevant criterion for the changes was population, but it was not attempted to make an exact calculation. Thus, Spain’s voting power was increased considerably, bringing it closer to the four large Member States than its population would have justified. For the adoption of acts of the Council approximately 71.3% of the votes were required, which had to be cast by at least two-thirds of the members, if no Commission proposal was necessary. The Protocol on the Enlargement of the EU for the first time inserted a direct reference to population size as an additional negative condition in Art. 205 (4) EC Treaty: “When a decision is to be adopted by the Council by a qualified majority, a member of the Council may request verification that the Member States constituting the qualified majority represent at least 62% of the total population of the Union. If that condition is shown not to have been met, the decision in question shall not be adopted.” Outvoted Member States were thereby given a device to prevent the adoption of acts of the Council. Whether they could use it effectively depended on the size of their population. These voting rules were updated by Art. 3 of the Protocol (No. 36) on Transitional Provisions annexed to the Treaty of Lisbon.175 They continued to be in force until 1 November 2014 and, as an option upon the request of one Council member, until 31 March 2017.176 Art. 3 (3) of Protocol (No. 36) increased the ratio of votes required for the adoption of acts by the Council to 73.86%. In practice, however, the Council continued to decide by consensus without a formal vote, whenever possible.177

173

Art. 205 (2) of the EC Treaty, as amended by the Treaty of Amsterdam of 2 October 1997 (consolidated version in OJ 1997 C 340, p. 173); Art. 205 (2) of the EC Treaty, as amended by the Treaty of Nice of 26 February 2001 (consolidated version in OJ 2002 C 325, p. 33). 174 Of 26 February 2001, OJ C 325/163 (2002). 175 Of 13 December 2007, OJ C 202/321 (2016). 176 Art. 3 (2) and (3) of Protocol (No. 36) read together with Art. 16 (5) TEU. 177 See Rossi (2017), p. 13.

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4.5.3.2

The New Double Majority (since 2014)

The Treaty of Lisbon reformed the system of qualified majority voting in the Council by turning it into the default rule which applies in most cases.178 Yet, the traditional practice of trying to avoid formal votes by consensus-building has continued.179 The Treaty of Lisbon also introduced the double majority that had first been included in the abortive TCE.180 Art. 16 (4) TEU reads as follows: As from 1 November 2014, a qualified majority shall be defined as at least 55% of the members of the Council, comprising at least fifteen of them and representing Member States comprising at least 65% of the population of the Union. A blocking minority must include at least four Council members, failing which the qualified majority shall be deemed attained. . . .181

Double majority means a qualified majority of sixteen Member States182 and a supermajority of almost two thirds of the population of the Union, the latter having been transformed from a negative into a positive requirement. The two thresholds which are both well below the almost 74% of the weighted votes pursuant to the Treaty of Nice indicate that decision-making by qualified majority was facilitated by the introduction of the double majority. However, the population percentage was increased from the previous negative 62% to the now positive 65%. In view of its second (population) element, the double majority does not constitute a sea change in Council voting, but substantially continues the weighted voting in modified form. The first element of the double majority stands for the formal equality of Member States, while the second element stands for their substantive equality, based on the democratic population criterion. The latter does not refer to the citizens of the Union but to the totality of the persons having their usual residence in the Member States.183 The respective numbers of these two groups coincide largely, but not

178

Art. 16 (3) TEU. Rossi (2017), p. 15. 180 Art. I-25 TCE. 181 See also Art. 4–6 of the Council Decision of 13 December 2007 (OJL 314/73 [2009]) and Protocol (No. 9) on that Council Decision (OJ C 202/274 [2016]) which were adopted on a Polish initiative (because Poland’s voting power was reduced by the introduction of the double majority system), complicating decision-making by qualified majority (see Haratsch 2017, Art. 16 EUV para. 38 ff.). It is unclear whether that mechanism has ever been used in practice. According to Art 16 (4) (3) TEU read together with Art. 238 (2) TFEU, “where the Council does not act on a proposal from the Commission or from the High Representative of the Union for Foreign Affairs and Security Policy, the qualified majority shall be defined as at least 72% of the members of the Council, representing Member States comprising at least 65% of the population of the Union.” 182 Fifteen after the Brexit. 183 This is the number which Eurostat uses in the population statistics (https://ec.europa.eu/eurostat/ tgm/table.do?tab¼table&init¼1&language¼en&pcode¼tps00001&plugin¼1) that are the source of the annually updated numbers set forth in Annex III to the Council’s Rules of Procedure and used in calculating the double majority. See Art. 3, 4 of Council Regulation 1260/2013 on European demographic statistics, OJ L 330/39 [2013]). 179

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completely because numerous citizens of the Union reside in third States while numerous third-State nationals reside in the Member States. From a democratic perspective, there is no objection against using habitual residency instead of citizenship as the criterion for determining the weight of a vote cast by a Council member: Since it is primarily the habitual residents that are affected by the Council’s legislative and other decisions, it is reasonable to focus on their number.184 The double majority constitutes a compromise between the equality of Member States and the equality of their habitual residents, the overwhelming majority of whom are Union citizens. It enhances the democratic foundation of the quasi-federal EU by ensuring that also the Member States’ chamber of the quasi-bicameral system takes the actual subjects of democratic legitimation into account. Although these subjects are the citizens of the Union,185 focussing on the number of habitual residents by and large mirrors their numbers. The example of the German Bundesrat also demonstrates that it is not unusual to allocate the voting powers in the constituent states’ chamber based on the respective numbers of habitual residents and not only citizens.186 The EEC Treaty already attempted to strike such a compromise between the equality of Member States and the equality of their habitual residents; with the deepening of the European integration the relative weight has gradually been shifted from the Member States towards the residents. This indicates that the EU has taken a step away from a union of Member States and citizens towards a union of citizens and Member States. The second element of the double majority—population size—increases the indirect influence on Council decision-making by the Union citizens in the large Member States. Since the Council members are democratically accountable to their national parliaments, it is ultimately the national electorate in the individual Member State that determines how “their” member votes in the Council. The votes of Union citizens in the national parliamentary elections of large Member States thereby attain a stronger indirect influence on Council decisions than those in the small Member States.187 This turns the spotlight on how these national electorates are defined. With few insignificant exceptions, all the Member States reserve the right to vote in national parliamentary elections to their own citizens, excluding all the other Union citizens. This direct discrimination on grounds of nationality is not prohibited by Art.

184

But see BVerfGE 123, 267 (378 f.). See also note 162. According to the Lisbon judgment of the German FCC (BVerfGE 123, 267 [348]) “the peoples, i.e. the citizens, of the Member States, remain the subjects of democratic legitimation” of the EU (para. 229 of the English translation available at www.bundesverfassungsgericht.de/SharedDocs/ Entscheidungen/EN/2009/06/es20090630_2bve000208en.html. 186 See 3.3.3. 187 For the parallel in Germany with regard to the overrepresentation of the small constituent states in the Bundesrat, see Geiger (2017), Art. 10 EUV para. 10. 185

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18 TFEU because, in contrast to municipal elections and elections to the European Parliament,188 national parliamentary elections are beyond the substantive scope of application of the Treaties, out of respect for the national constitutional identities of the Member States.189 It is also in accordance with Art. 25 ICCPR that expressly reserves the right to vote to citizens of the respective State.190 If citizens of a Member State move to another Member State, exercising their freedom of movement pursuant to EU law, it is not only the latter which denies them the national franchise, but the electoral law of their home State sometimes also disenfranchises them or imposes limits on the continuous exercise of their right to vote.191 In view of the differences in national practice concerning voting rights for expatriates, the European Court of Human Rights in such cases usually does not find any violation of their right to vote guaranteed in Art. 3 of Protocol No. 1 to the ECHR, in view of the Convention States’ broad margin of appreciation.192 As a result, a considerable number of citizens of the Union are completely disenfranchised with regard to national parliamentary elections in the EU. This not only unacceptably discriminates those Union citizens who have exercised their free movement rights, which EU law normally prohibits,193 but also impairs the second indirect strand of democratic legitimation of the EU via the national parliaments and the Council. EU law does not provide any relief in this regard, it only guarantees expatriates the right to vote in elections to the European Parliament in their Member State of residence.194 This not only creates a difference between the European electorate and the national electorate in every Member State. It also means that despite the general rule of Art. 9 sentence 1 TEU, the political equality of Union citizens is not fully guaranteed vis-à-vis the Member States. It is small comfort for disenfranchised Union citizens, who are habitual residents of a Member State, that

188

Art. 22 (1), (2) TFEU. Art. 4 (2) TEU. From a German perspective, see Huber (2008), p. 307 (322 f.). 190 See also Art. 16 ECHR (permitting restrictions on the political activity of aliens) and Appl. No. 27510/08, Perinçek v Switzerland (ECtHR 15 October 2015), paras. 118 ff., where the Court found that “Article 16 should be construed as only capable of authorising restrictions on ‘activities’ that directly affect the political process”, presumably including the right to vote in national parliamentary elections, as guaranteed in Art. 3 of Protocol No. 1 to the ECHR. 191 See, e.g., Sec. 12 of the German Federal Electoral Law (Bundeswahlgesetz). See also European Commission: Disenfranchisement: Commission acts to defend voting rights of EU citizens abroad, Press Release IP/14/77 of 29 January 2014 (available at http://europa.eu/rapid/press-release_IP-1477_en.htm. 192 Appl. Nos. 28881/07 and 37920/07, Oran v Turkey (ECtHR 15 April 2014), paras. 53, 60 ff. See the extensive study by de Guttry (2018), pp. 933 ff. 193 See, e.g., Case C-224/98, Marie-Nathalie D’Hoop v Office national de l’emploi (ECJ 11 July 2002), ECR 2002, I-6191, paras. 30 ff.; Case C-152/05, Commission v Germany (ECJ 17 January 2008), ECR 2008, I-39, paras. 22 ff. 194 Art. 22 (2) TFEU, Art. 39 CFR. 189

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their number is included in the second element of the double majority in the Council. This means that they are represented by a Member State government they had no chance to elect.

4.5.3.3

Supranational Synthesis of Member State Equality and Union Citizen Equality in the Council

Representation and voting in the Council has always been mainly based on the equality of Member States, but increasingly modified by an element of equality of habitual residents, most of whom are citizens of the Union. In the current double majority system, that modification has reached its highest stage of development. There is a shortcoming, however, that impairs individual political equality: EU law does not ensure that Union citizens residing in a Member State of which they are not nationals can vote in national parliamentary elections in either their home State or their Member State of residence. They should at least be guaranteed an option, which they also have with regard to the elections to the European Parliament, in accordance with Art. 4 of Council Directive 93/109/EC. The Council’s composition and decision-making process stands for a specific synthesis of Member State equality and Union citizen equality in which the former still dominates but the latter has made significant headway. That synthesis is well adapted to the specific conditions of a gradually developing supranational Union of Member States and their citizens. From the perspective of formal equality, the principle which usually governs the composition of state chambers in (quasi-) federal systems, the more populous Member States are overrepresented in the Council, their voting power in the second element of the double majority considerably exceeding that of the less populous ones.

4.5.4

4.5.4.1

The European Parliament as the Representation of the Equal Union Citizens Union Citizens Replace Peoples of Member States as Subjects of Representation

Until the entry into force of the Treaty of Lisbon in 2009, the Assembly, later renamed as the European Parliament, had been identified as the representation of the peoples of the States brought together in the European Community.195 This was correct when the Assembly consisted of members delegated by the national parliaments.196 But with the introduction of direct universal suffrage in 1976197 and the

195

Art. 20 ECSC Treaty (1951); Art. 137 EEC Treaty (1957); Art. 189 (1) EC Treaty (consolidated version in OJ C 321 E [2006]). 196 Art. 21 ECSC Treaty (1951); Art. 138 (1) EEC Treaty (1957). 197 See above note 102.

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first direct elections of 1979, that identification needed revision. This was because the individual citizens of the Member States, when exercising their right to vote in European elections in their respective Member State, do not act in their national capacity as components of the Member States’ peoples, but in their European capacity as components of a Union citizenship, i.e. a multinational European people in statu nascendi.198 Accordingly, the MEPs long ago established multinational political groups instead of voting as multiparty national blocs.199 That revision was only accomplished with the entry into force of the Treaty of Lisbon in 2009. Art. 14 (2) sentence 1 TEU now quite correctly states that the European Parliament is composed of representatives of the Union’s citizens who are elected in each Member State—not only by the respective Member State’s citizens but also by the citizens of other Member States residing there (Art. 22 (2) TFEU).200 Ultimately, each Member of the European Parliament (MEP) represents all the citizens of the Union, irrespective of where and by whom he or she was elected and what citizenship he or she holds.201

4.5.4.2

Degressively Proportional Representation of Union Citizens per Member State

The number of delegates in the Assembly/European Parliament allocated to Member States has always been graded according to their population. What began as a rather crude schematic arrangement was later increasingly fine-tuned so as better to reflect differences in population size.202 This can be demonstrated by tracking the examples of the founding Member States, Luxembourg (L), Belgium (B), France (F) and Italy (I), Germany (D) and the Netherlands (NL) during the period from 1951–2024203:

Oeter (2011), p. 66 f.; Bieber (2015), Art. 14 EUV para. 50, speaks of “Europäische Bürgergemeinschaft” (European Citizens Community). 199 See Huber (2018), Art. 14 EUV para. 51. 200 Huber (2018), Art. 14 EUV para. 47. But see BVerfGE 123, 267 (368, 372, 376) incorrectly stating that the European Parliament was “designed as a representation of peoples in the respective national contingents of Members, not as a representation of Union citizens in unity without differentiation. . .” and that representation in the European Parliament was linked to nationality. See the critique by Schönberger (2011), Art. 9 EUV paras. 28 f.; Mangiameli (2013), Art. 14 para. 56. 201 Compare Art. 38 (1) sentence 2 BL. 202 See the account by Bieber (2015), Art. 14 EUV paras. 55 ff. 203 This includes the next parliamentary term (2019–2024). 198

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Art. 21 of the ECSC-Treaty Art. 138 (2) of the EEC-Treaty Art. 2 of the Act on Direct Universal Suffrage (1976) Art. 2 of the Act on Direct Universal Suffrage of 1993, adopted by the Treaties of Amsterdam (1997) and Nice (2001) Art. 2 of the Protocol on the Enlargement of the EU annexed to the Treaty of Nice (2001) (as amended by Art. 2 of the Protocol [No. 36] on Transitional Provisions [2007] annexed to the Treaty of Lisbon as of 1 Dec. 2009) European Council Decision (2013)a European Council Decision (2018)b

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L 4 6 6 6

B 10 14 24 25

D 18 36 81 99

F/I 18/18 36/36 81/81 87/87

NL 10 14 25 31

6

22

99

72/72 (74/73)

25 (26)

6 6

21 21

96 96

74/73 79/76

26 29

a

European Council Decision establishing the composition of the European Parliament (2013/312/ EU), OJ L 181/57 (2013) b European Council Decision (EU) 2018/937 establishing the composition of the European Parliament, OJ L 165I/1 (2018). The numbers only apply when the UK’s withdrawal becomes effective. If the UK is still a Member State of the EU at the beginning of the 2019–2024 parliamentary term, the numbers set forth in the European Council decision of 2013 will continue to apply. Once the UK’s withdrawal becomes effective, the MEPs elected in the UK will lose their seats and the additional seats allocated to other Member States by the European Council decision of 2018 will be filled by MEPs already elected there

The table demonstrates that initially there were three categories of Member States, small, medium-sized and large. The medium-sized and large Member States, the members of each group having roughly the same number of inhabitants, were allocated the same number of delegates. The peoples of the small and medium-sized Member States were grossly overrepresented in relation to the large Member States.204 The allocation system was biased in favour of the formal equality of Member States, irrespective of their population. Over time, the allocation system was gradually approximated to the substantive equality of Member States, the substantive criterion being population size, considerably decreasing but not fully eliminating the overrepresentation of the small and medium-sized Member States. In 1993, after the reunification of the Federal Republic of Germany and the German Democratic Republic had increased the German population by approximately 16 million, Germany was for the first time given more seats than the other three large Member States. At the same time, the fact that the population of the Netherlands had always been somewhat larger than that of Belgium and also grown more quickly was taken account of. The Protocol on the Enlargement of 2001 further increased the difference between Germany as the most populous Member State and all the others. Since 1993, the EC/EU has thus clearly tried to be more realistic in transposing the population of the Member States into their numbers of MEPs than before, but the overrepresentation of the smaller Member States was maintained. 204

When the EEC Treaty entered into force, Luxembourg had over 300,000 inhabitants, Belgium over 9 Mio. and (West) Germany over 50 Mio. Proportional representation would have resulted in more than 1000 German delegates in relation to the six Luxembourg delegates.

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The abortive TCE205 introduced a change that was adopted by the Treaty of Lisbon and is still valid: Art. 14 (2) TEU now only lays down the principles guiding the allocation of seats to the Member States, but leaves the actual decision to the European Council and the European Parliament, to be updated sufficiently in advance of each new parliamentary term. Art. 14 (2) TEU reads: The European Parliament shall be composed of representatives of the Union’s citizens. They shall not exceed seven hundred and fifty in number, plus the President. Representation of citizens shall be degressively proportional, with a minimum threshold of six members per Member State. No Member State shall be allocated more than ninety-six seats. The European Council shall adopt by unanimity, on the initiative of the European Parliament and with its consent, a decision establishing the composition of the European Parliament, respecting the principles referred to in the first subparagraph.

Under this provision, the decision on the allocation of seats to Member States is an instrument of secondary law which could be challenged in the ECJ for violation of the overriding principles of Art. 14 (2) TEU,206 but in view of the wide margin of discretion left to the European Council, this possibility is rather theoretical. The most recent European Council decision of 2018207 that establishes the composition of the European Parliament for the 2019–2024 parliamentary term provides that the allocation of seats is to reflect as closely as possible the sizes of the respective populations of and demographic developments in the Member States (Art. 1). Also in Art. 1,“degressive proportionality” is defined as follows: “the ratio between the population and the number of seats of each Member State before rounding to whole numbers is to vary in relation to their respective population in such a way that each Member of the European Parliament from a more populous Member State represents more citizens than each Member of the European Parliament from a less populous Member State and, conversely, that the larger the population of a Member State, the greater its entitlement to a large number of seats in the European Parliament”. In the preamble, the European Council decision refers to the dual legitimation and quasi-bicameralism on which the EU’s representative democracy is founded according to Art. 10 TEU and states that the degressive proportional representation of Union citizens in the European Parliament pursuant to Art. 14 (2) TEU “applies within the context of the wider institutional arrangements set out in the Treaties, which also include the provisions on decision making in the Council”.208 This obviously refers to the new double majority system in the Council. The European Parliament described the framework of Art. 14 (2) TEU as follows: The provision “makes it possible to combine the principle of efficiency, by imposing a ceiling on the number of Members at a level which is still compatible with the role

205

Art. I-20 (2) TCE. See para. 11 of the European Parliament resolution of 11 October 2007 on the composition of the European Parliament (2007/2169(INI)), OJ C 227 E/132 (2008). 207 European Council Decision (EU) 2018/937. The European Council Decision of 2013 included similar explanations. 208 See below 4.5.4.3. 206

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of a legislative assembly, the principle of plurality, by allowing the main constituents of the spectrum of political opinion in each Member State – particularly the majority and the opposition – to be represented, and the principle of solidarity, whereby the more populous States agree to be under-represented in order to allow the less populous States to be represented better . . .”209 The degressively proportional representation of citizens of the Union in the European Parliament thus constitutes an attempt at simultaneously realising two political interests which both have democratic underpinnings: The first is to ensure that the political spectrum of each Member State’s parliament, including the opposition, is adequately reflected in the composition of the European Parliament,210 requiring a certain minimum number of representatives which Art. 14 (2) TEU fixes at six. That first interest could be called the national political representation interest. It is peculiar to the EU where the bonds of national affiliation are still strong, in difference to federal States where the composition of the lower house of parliament follows the principle of unaltered proportional representation211: In a federal State with one federal people, the constituent states’ peoples have socially, culturally and politically merged to an extent which makes their representation as separate political bodies in the federal parliament unnecessary, except if there are outright national minorities. The second interest is to prevent the excessive enlargement of the European Parliament which would be caused by implementing unaltered proportional representation: For the six representatives from Luxembourg there would have to be ca. 840 representatives from Germany alone and over 5000 representatives in all from the EU27, threatening the proper functioning of the European Parliament. The means to realise those two interests is the overrepresentation of the less populous and the underrepresentation of more populous Member States, which the European Parliament explains by the “principle of solidarity”. This is the mirrorinverted equivalent of the overrepresentation of the more populous Member States in the Council with regard to the second element of the double majority when the latter acts by a qualified majority, as usual.212 In contrast to the Council, however, there is no express requirement that the MEPs adopting a resolution of the European Parliament represent the majority of the citizens of the Union. It is unlikely but not completely impossible that this would not be ensured in important cases.213

209

Para. 5 of the European Parliament resolution of 11 October 2007 on the composition of the European Parliament (2007/2169(INI)), OJ C 227 E/132 (2008). 210 It is always the governing majority of each Member State that is represented in the Council. 211 This is the case in both the German Bundestag (see BVerfGE 123, 267 [342]) and the U.S. House of Representatives. In both Germany and the U.S., however, the differences in population between the constituent states are not as great as between the Member States of the EU. 212 See Schoo (2019), Art. 14 EUV para. 47. 213 See Art. 231 TFEU; Art. 168 of the Rules of Procedure of the European Parliament (July 2018). See Ruffert (2016), Art. 9 EUV para. 30.

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Equality of Union Citizens and Equal Franchise

The core of individual political equality is the equal right to vote. According to Arts. 1 and 2 of the Act concerning the election of the members of the European Parliament by direct universal suffrage,214 the MEPs are elected on the basis of proportional representation. The elections are by direct universal suffrage, free and secret. Since the entry into force of the Treaty of Lisbon, the European Parliament is composed of representatives of the Union’s citizens (and no longer representatives of the Member States’ peoples). This means that today only citizens of the Union may be permitted to vote,215 whereas before the Member States were free to register nationals of third States as voters, if they considered them to be part of their respective people in view of the close link these persons had with them.216 The right to free election set out in Art. 3 of the Additional Protocol to the European Convention on Human Rights also applies to the elections to the European Parliament.217 However, the provision leaves such a wide margin of appreciation to the Convention States as regards the concrete design of electoral laws that the precise legal arrangements concerning the European elections are compatible with the Convention precepts.218 Art. 14 (3) TEU, Art. 39 (2) CFR and Art. 1 of the Act on direct universal suffrage fail to guarantee the equal franchise. This is because in a system of proportional representation, the equality of votes has two elements—the equality of count, meaning that the votes are counted and not weighed, and the equality of influence on the composition of the parliament. While the votes’ equality of count is guaranteed in the elections to the European Parliament, the equality of influence is not, primarily because of the degressive proportionality of the Union citizens’ representation. Accordingly, “each Member of the European Parliament from a more populous Member State represents more citizens than each Member of the European Parliament from a less populous Member State”.219 For example, each of the 96 MEPs elected in Germany, each of the 79 MEPs elected in France and each of the 76 MEPs elected in Italy in 2019 represent more than 800,000 Union citizens, while each of the 6 MEPs elected in Luxembourg represent less than 100,000. This

214

Of 20 September 1976, as amended (consolidated version available at https://eur-lex.europa.eu/ legal-content/EN/TXT/PDF/?uri¼CELEX:01976X1008(01)-20020923&qid¼1560868962971& from¼EN). 215 Art. 39 CFR. But see the Declaration (No. 64) by the United Kingdom on the franchise for elections to the European Parliament annexed to the Final Act of the Intergovernmental Conference of Lisbon of 2007 (OJ C 326/360 [2012]), according to which provisions of the Treaties were not intended to change the basis for the franchise for elections to the European Parliament. 216 Case C-145/04, Spain v UK (ECJ 12 September 2006), ECR I-7961, para. 76. The case concerned the right to vote given by the UK to “qualifying Commonwealth citizens” residing in Gibraltar who were not Union citizens. 217 Appl. No. 24833/94 Matthews v UK (ECtHR, 18 February 1999). 218 See BVerfGE 123, 267 (373). 219 See above note 209.

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means that the influence which each vote cast in Luxembourg has on the composition of the European Parliament is over eight times as great as the influence of a vote cast in Germany and France.220 In such a system of degressively proportional representation the equality of influence of individual votes can only be guaranteed regarding the composition of the group of MEPs elected in each Member State,221 but not with regard to votes cast in Member States with different populations: There is national, but no transnational equality of citizens in this respect. Because of that system of degressively proportional representation, the political equality of Union citizens is impaired in order to ensure adequate representation of less populous Member States. Their overrepresentation in the European Parliament is a step towards maintaining political equality among the European electorates (i.e. resident Union citizens) in the various Member States, irrespective of their numbers. Since most of these are citizens of the respective Member State, the arrangement in effect boils down to maintaining political equality between the differently-sized peoples of the Member States from whom the democratic legitimacy of the national governments is derived, i.e. the national electorates.222 This is inevitable in the EU as a union of democratic Member States and Union citizens where the former continue to play an important role in ensuring the democratic legitimacy of the Union.

4.5.4.4

Supranational Synthesis of Union Citizen Equality and Equality of Member States’ European Electorates in the European Parliament

The composition of the European Parliament constitutes a synthesis of the political equality of individual Union citizens and the equality of the Member States’ European electorates irrespective of their numbers that are mostly but not completely congruent with their national electorates. This synthesis is embodied in the degressively proportional representation of the Union’s citizens. That degressively proportional representation is part of an overall compromise between the transnational political equality of Union citizens in their entirety and the national political equality of Union citizens organised in democratic Member States, whose counterpart is the second element of the double majority in the Council: The composition of the European Parliament is based on the transnational equality of

220

From its critique of the lack of the voters’ equality of influence on the composition of the European Parliament, the German FCC derives a constitutional impediment to the further deepening of European integration (see BVerfGE 123, 267 [371 ff.]). This is false logic because the BL was intended to facilitate and not to impede the integration of Germany in a European federation. This excludes reading requirements into the BL which would make German participation in such a federation practically impossible. 221 See the German FCC in BVerfGE 135, 259 (285). 222 But see BVerfGE 123, 267 (373 f.) where the Court instead refers to the equality of States under international law which is misleading, all the more since it does not mention their equality pursuant to EU law (Art. 4 (2) sentence 1 TEU).

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citizens but considerably modified in favour of the equality of citizens nationally compartmentalised in democratic Member States, whereas the decision-making in the Council is based on the equality of democratic Member States but considerably modified in favour of the transnational equality of Union citizens.223 This overall compromise has gradually evolved in the direction of more transnational political equality, without completely achieving that objective. If one interprets Art. 9 (1) TEU as a mandate to work towards greater transnational political equality as a long-term goal, further steps may need to be taken to gradually dismantle the degression in favour of unmodified proportional representation.224 But ultimately that objective could only be achieved after levelling the heterogeneity of the constituent peoples of the Member States and their merger into one European people which would only be possible in the very long run, if at all. It is interesting to note that in a recent communication, the European Commission has quite generally used the number of seats for representatives in the European Parliament allocated to each Member State as “the most appropriate reflection of institutional weight of Member States available today in the EU Treaties”.225 That factor is said to reflect the Member States’ “intrinsic value in the institutional set-up of the European Union”. At the same time, the Commission abandoned the use of the number of votes allocated to a Member State in the Council under the previous system of weighted voting.226 In this regard, too, the equality of Union citizens is gradually superseding the formal equality of Member States as the decisive all-purpose criterion for assessing their relative importance within the Union system.

4.6

Conclusion: Unique Supranational Equilibration of Individual and State Equality in the EU

The problem of how to equilibrate citizens’ equality and constituent states’ equality is not unique to the EU but needs to be solved in every (quasi-) federal system in which there are great population size differences between the constituent states.227 To be sure, in the EU it is more serious than in federal States because the national, linguistic and cultural differences between the Member States are more pronounced. 223

See Schoo (2019), Art. 14 EUV para. 47. For a critique of that overall compromise, see the German FCC in BVerfGE 123, 267 (378 f.). 224 See in that sense Jarass (2016), Art. 39 GRC para. 21. 225 Communication of the Commission (2019) 1396 final of 20 February 2019: Modification of the calculation method for lump sum payments and daily penalty payments proposed by the Commission in infringement proceedings before the Court of Justice of the European Union. 226 The ECJ determined that the number of votes in the Council could no longer be used as a criterion to assess the Member States’ relative importance after the system of weighted voting had definitely been abolished as of 1 April 2017 (Case C-93/17, Commission v Greece [ECJ 14 November 2018], ECLI:EU:C:2018:903), paras. 136 ff. 227 Schönberger (2011), Art. 9 EUV para. 34.

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For most citizens of the Union, their Member State nationality comes first and their Union citizenship only second so that the accessory and complementary character of the latter228 has a solid sociological foundation. Especially the citizens of the thinly populated Member States dread their weak position as small minorities on the Union level. They insist on both the institutionalised protection by their Member States governments as equal members of the Council and an oversized contingent of MEPs elected in their Member States. The overrepresentation of small Member States’ European electorates in the European Parliament can be characterised as an instance of the intra-federal protection of structural “national” minorities.229 The Union adopted a quasi-bicameral model of representative democracy which reminds of the German example with regard to both the composition of and weighted voting or double majority in the Council that are similar to the German Bundesrat. There is, however, one important difference with regard to the quasi-character of bicameralism in Germany and the EU: While in Germany, it is the Bundesrat (the constituent state chamber) that does not participate in the legislative procedure on an equal basis with the Bundestag (the directly elected people’s chamber), at EU level the dominant role is played by the Council and the supporting role by the European Parliament. This means that in Germany, the chamber representing the equal citizens dominates the legislative process, whereas in the EU, it still is the chamber representing the equal Member States. The EU system of equilibrating citizens’ political equality and Member States’ equality in its institutional setup is unique. In the USA, each of the two mostly co-equal chambers of Congress stands for one kind of equality in its pure form, the House of Representative for the political equality of citizens and the Senate for the equality of the constituent States’ peoples (representing the constituent States). In Germany, the Bundestag as the primary chamber stands for political equality of citizens in its pure form, while the Bundesrat implements the equality of the constituent States (representing their peoples) only in a modified form, taking their number of inhabitants into account in a step towards individual political equality. The EU system extends that modification to both chambers: The composition of the Council as the primary chamber and the first element of the double majority pertain to Member State equality, but the second element of that majority (population) introduces a significant dose of individual political equality. Contrariwise, the composition of the European Parliament pertains to individual political equality, but is considerably moved towards Member State equality by degressive proportional representation. While the equality of Member States dominates in the Council, the political equality of Union citizens dominates in the European Parliament, but the dominance of the one principle is in each case significantly qualified by the other. Union law thus establishes a specific balance between the two principles that is attuned to the supranational character of the EU’s representative democracy.

228

See Art. 9 sentences 2 and 3 TEU. Ruffert (2016), Art. 9 EUV para. 27; Heselhaus (2017), Art. 9 EUV para. 17; id., Art. 39 GRC paras. 32 ff. 229

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How does the consensus procedure which the Council prefers in practice fit in that picture? Because it neglects population differences, it tilts the balance somewhat further in favour of Member State equality. Yet, Member States’ willingness to compromise is enhanced by the fact that the consensus procedure is always subject to the possibility of opening a voting procedure in which the qualified majority will suffice for the adoption of the act.230 This applies in particular to the less populous Member States that are more easily outvoted.

5 Overall Comparison: Ensuring Democratic Equality in Multilevel Systems of Government The triad of citizens, peoples and States constitutes the personal foundations of the legal orders of the international community as a whole, of federal States and of the European Union somewhere in between these two. Citizens, peoples and States can claim equality in relation to their peers on all these levels of human organisation. As a corollary to the right of internal self-determination of peoples and the individual human right to democracy, States (both federal and centralised) and the quasi-federal European Union are bound to have a democratic form of government that is based on the sovereignty of the people consisting of equal citizens. The democratic structure of the international community as such is limited to the sovereign equality of the roughly 200 States constituting it, irrespective of their size and population. Sovereign equality ensures that international legal norms become obligatory for States only with their at least tacit consent. It is a mechanism protecting those small peoples that have succeeded in establishing a sovereign State of their own from being disenfranchised by large peoples and their States. Public international law, federal constitutional law and EU law guarantee the equality of citizens, peoples and States as well as the democratic structure of States in different ways. The international community and its law-making process are still clearly dominated by the equally sovereign States, while the peoples and the individual citizens with their own claims to equality are almost completely shielded by their States: The international community as a whole and intergovernmental organisations established by all or some of its constituent States have no power to directly commit or entitle individual citizens. Thus, only few assemblies of citizens’ delegates exist in some regional organisations with no more than consultative functions, in which the less populous Member States are usually overrepresented, their peoples being qualified as structural minorities. But it is the equal vote of the governments of all the Member States in the representative organ of intergovernmental organisations which ensures the democratic legitimacy of whatever indirect effect their decisions have on the citizens.

230

See Art. 11 (1) of the Council’s Rules of Procedure (OJ 2009 L 325, p. 35).

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In federal States as well as the quasi-federal EU, the (quasi-) federal level exercises direct legislative, executive and judicial authority over the individual citizens. This requires more solid democratic foundations of the (quasi-) federal decision-making process. The governmental authority of federal States such as the USA and Germany is derived from the sovereignty of the composite federal people as an amalgamation of the persisting constituent states’ peoples. Federal constitutions therefore always embody a compromise between the whole of the people and its parts that is specific to the particular federation. Federal States have a bicameral legislature whose two chambers are more (USA) or less (Germany) co-equal. One chamber is the representation of the federal people consisting of equal citizens, the other chamber the representation of the governments (Germany) or peoples (USA) of the equal constituent states. While the members of the former are directly elected by the citizens of the federation on the basis of universal, free and equal suffrage, the composition and decision-making procedure of the latter is (mostly) aimed at ensuring the equality of the constituent states and their peoples irrespective of size. This is a typical federal modification of the democratic majority rule in favour of protecting structural minorities organised as states: While all citizens of the federation are equal, those residing in a less populous constituent state are more equal than the others in the sense that they are given more influence in the constituent state chamber. In both Germany and the USA, the constituent state citizenship is derived from the federal citizenship. In Germany, the capacity as federal citizen dominates the decision-making process, because it determines the composition of the preeminent parliamentary chamber completely and also influences the weighted voting in the secondary constituent states’ chamber. This is in accordance with the highly centralised character of German federalism. In the USA, the capacities as federal citizen and constituent state citizen are by and large equally important, each determining the composition and voting of one of the co-equal chambers of the legislature. This is in line with the decentralised character of U.S. federalism. The sui generis quasi-federal system of the EU is situated somewhere between an intergovernmental organisation and a federal State. From the perspective of democracy and equality, it shares one important feature with a federal State—its direct legal relationship with the individual citizens of the Union without interposition of the Member States. This feature necessitates a bicameral legislature similar to the ones in federal States. There the equality of the Member States and the equality of the Union citizens need to be equilibrated in a way that is adequate to the unique supranational character of the EU’s representative democracy. Accordingly, while the equality of Member States representing national electorates dominates the Council, the equality of Union citizens constituting the European electorate dominates the European Parliament. But the dominance of the one principle is significantly modified by the other with regard to both institutions. Whereas the linchpins of democracy in the international community are the equally sovereign States, the linchpins of democracy in federal States are the equal federal citizens who are simultaneously equal constituent state citizens and influence the federal decision-making process in both capacities through the two chambers of

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the federal legislature. In the EU, the linchpins of democracy are ultimately also the equal Union citizens who are simultaneously equal Member State citizens and influence the decision-making process of the Union in both capacities through the two chambers of the EU legislature. In the EU, the capacity as Member State citizens dominates. It first influences the composition and voting in both chambers, in particular in the Council as the still dominant one, but also in the European Parliament, in view of the degressively proportional representation. It secondly also prevails in the still considerable number of cases in which unanimity in the Council or ratification of an EU decision by all the Member States is required. In all these cases the least populous Member State has a veto whose use is ultimately controlled by that Member State’s numerically small national electorate. To a lesser extent the same holds true for the de facto consensus procedure preferred by the Council in cases where it could make decisions by qualified majority. This is in accordance with the derivative quality of the citizenship of the Union that is based on the citizenship of a Member State, as well as the decentralised character of the EU’s quasi-federalism. It adequately reflects the specific character of a supranational democracy based on still sovereign Member States and their citizens.

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The Protection and Promotion of Language Equality in the EU: Gaps, Paradoxes, and Double Standards Xabier Arzoz

Contents 1 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 Is Language Equality a Fundamental Value of the EU? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 Is Language Equality a Shared Value in the EU? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 Assessing EU Performance in Respecting Linguistic Diversity . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 Perspectives . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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Abstract This chapter attempts to identify and assess the European Union’s role in promoting and protecting linguistic diversity in Europe. The focus will not be on rules and practices regarding the internal and external use of languages by EU institutions, but on EU policies in general and their underlying values. It starts by exploring the roots of language equality in the EU, since it might not be clear to what extent language equality is a fundamental value of the EU and a shared value among member states. Furthermore, it assesses EU performance in respecting linguistic diversity. The chapter makes the point that the main cause for the scant ambition and performance of the EU in this regard is the cultural self-centredness of member states. It further argues that fundamental values underlying language equality and respect for linguistic diversity are varied and should not be neglected in the European integration process.

X. Arzoz (*) National University of Distance Education (UNED), Faculty of Law, Madrid, Spain e-mail: [email protected] © Springer Nature Switzerland AG 2020 T. Giegerich (ed.), The European Union as Protector and Promoter of Equality, European Union and its Neighbours in a Globalized World 1, https://doi.org/10.1007/978-3-030-43764-0_5

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1 Introduction In EU documents regarding linguistic issues or concerns, three notions recur— language equality, linguistic diversity, and multilingualism1—sometimes within the same document,2 others in documents with different focuses.3 These notions are used convolutedly in EU political discourse and policy measures; it is difficult to know where (language) equality ends, where (language) diversity begins, and what multilingualism brings to the table. It has even been argued that EU official discourse on linguistic diversity and multilingualism follow two different—even opposite— rationales: as a cultural asset and as an economic one, respectively; as an instrument for achieving intercultural understanding on which trans-European civil society must rely, on the one hand, and as a potential competitive advantage in a global context characterized by cognitive mobility, on the other.4 A further factor of ambiguity is that all mentioned notions speak of languages in plural, but to which languages do they refer exactly? Let’s have a look, for instance, at the European Parliament resolution of 11 September 2018 on language equality in the digital age.5 Without missing a beat, it mentions notions such as language equality, linguistic diversity, multilingualism, and ‘languages in danger of digital language extinction.’ The objective scope of the resolution is extremely broad: ‘there are 24 official languages and more than 60 national, regional and minority languages in the European Union, in addition to migrant languages and [. . .] the various state-recognised sign languages’. In EU primary law, the notion of language equality does not appear. In some multilingual settings, the equal status of certain languages is constitutionally entrenched, either explicitly or implicitly; and, therefore, equality is a substantive criterion against which language policies and practices can be constitutionally checked.6 Nevertheless, equality of languages is not always a constitutional obligation, and when it is, does not necessarily include all languages within the state. Though the Treaties lack the notion of language equality, they include some expressions, which indicate a type of equality of legal status of the so-called official languages, which are essentially member states’ official national languages.7 ‘EU language policy is based on linguistic diversity, multilingualism, and equality of the official languages of the EU Member States’. See Paunio (2007), p. 385. 2 See, for instance, the European Parliament resolution of 11 September 2018 on language equality in the digital age (2018/2028(INI)), P8_TA-PROV(2018)0332. 3 See, for instance, the European Parliament resolution of 11 September 2013 on endangered European languages and linguistic diversity in the European Union OJ C 93/52 – 58 (2016), (2013/2007(INI)), P7_TA(2013)0350. 4 Kraus and Kazlauskaitė-Gürbüz (2014), p. 517; Climent-Ferrando (2016), p. 3. 5 European Parliament resolution of 11 September 2018 on language equality in the digital age 2018/2028(INI) (2018), P8_TA-PROV(2018)0332. 6 See McRae (2007). For a good account of the principle of linguistic equality in comparative constitutional law, see de Witte (1985). 7 Art. 55 EU. 1

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It is not language equality but linguistic diversity, which is expressly enshrined in the Treaties. The most general recognition is in Article 22 of the Charter of Fundamental Rights where the Union shall respect linguistic diversity as well as its cultural and religious counterparts. Another notion that appears is that of multilingualism. As such, it is not an EU value, an EU objective, or a matter of EU competence.8 In the last few years, however, multilingualism has appeared many times hand in hand with linguistic diversity, as if linguistic diversity were the cultural asset and multilingualism referred to policy or explicitly to an economic approach. This second notion seems to refer to the development of new competences among individuals and new products in various languages. Some scholars consider the body of EU actions, initiatives and programmes on multilingualism to be ‘the European language policy’, a label which may be accepted in a broad sense.9 A certain policy of multilingualism has indeed been actively fostered in the EU. In 2005, the Commission launched A New Framework Strategy for Multilingualism,10 which included in 2007–2010 a Commissioner of Multilingualism (Leonard Orban). The area was later allocated to the portfolio on education, culture and youth (Commissioner Androulla Vassiliou, 2010–2014). Nevertheless, under the Juncker Commission the portfolio of multilingualism was eliminated, and most revealingly, the former unit dealing with Multilingualism Policy, Skills and Qualifications Strategy was removed from the Directorate-General on Education and Culture and transferred to the DirectorateGeneral on Employment, ‘expressing the new political intentions to instrumentalize languages for market-oriented purposes.’11 Do these latest developments mean a setback—or alternatively, a triumph—for the economic approach and the commodification of languages in the EU policy on linguistic diversity? I argue that neither was the market-oriented approach almost exclusive to the EU political discourse on languages before,12 nor is it now declining. Encouragement of language learning has immense relevance and potential in a multilingual knowledge-based global economy, and the EU is right to foster it. It is a healthy objective and fits well with EU’s limited competences on education (Art. 165 FEU), culture (Art. 167 FEU), and competitiveness of Union’s industry (Art. 173 FEU). Emphasis on the acquisition of language skills for mobility and employability purposes must not be confused with protecting linguistic diversity in the EU as a constitutional principle. Multilingualism and linguistic diversity should not be construed as different normative poles nor as conflicting objectives, as they rely on different normative foundations. EU political discourse and its agenda setting on multilingualism as an economic asset often disagree with the cultural and humanistic

8

The term does not appear in the Treaties. See Ahrens (2003). 10 A New Framework Strategy for Multilingualism, COM (2005) 596 final of 22 November 2005. 11 Climent-Ferrando (2016), p. 3. 12 In this sense, Kraus and Kazlauskaitė-Gürbüz (2014) and Climent-Ferrando (2016). 9

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values underlying cultural and respect for linguistic diversity clauses of EU law. This form of moral argumentation should not surprise us nor conceal the real stakes. Similarly, freedom of expression may be invoked with other possibly conflicting motivations—for instance, by a media owner aiming to achieve a bigger audience share. In the end, the notion of ‘diversity’ plays a useful role as a federating concept, combining different families of discourse into a consistent, more general one.13 This chapter attempts to identify and assess the European Union’s role in promoting and protecting linguistic diversity in Europe. The focus is not on the EU’s performance as an organisation, that is, on rules and practices on the internal and external use of languages by EU institutions,14 but on EU policies in general, as well on the interplay between member states and the EU. Before doing so, against the aforementioned background, it is important to discuss the roots of language equality in the EU, since it might not be clear to what extent language equality is a fundamental value of the EU and a shared value among member states. This requires the decoding of the EU legal framework to extract which fundamental values sustain and guide the EU’s commitment to the promotion and protection of language diversity.

2 Is Language Equality a Fundamental Value of the EU? The EU has a rather sophisticated constitutional framework, though rarely is it perceived in all its complexity. Focus on EU documentation including policy documents, recommendations, communications, resolutions, conclusions, reports, and press releases may underestimate the centrality and normativity of EU primary law provisions proclaiming fundamental values. At least three categories of fundamental values can be discerned in EU law with regard to linguistic diversity, each with different moral foundations and a different normative entrenchment: (a) The first category where a fundamental value is recognised in EU law is that of special needs of protection of national and linguistic minorities.15 This fundamental value is already enshrined in Art 2 EU, which proclaims ‘respect for human rights, including the rights of persons belonging to minorities,’ one of the EU’s core values. Certainly, this is the expression of a weak constitutionalisation of minority rights in the EU. Minority rights are not defined for or in the EU; their recognition depends on international and national rules. A stronger, more affirmative commitment to minority rights would require, at the very least, the indirect incorporation, by reference, of the relevant European standards, be they in general (‘according to European common standards’ or the

13

Grin (2003), p. 169. See the chapter in this volume by Anne Lise Kjær. 15 For a normative foundation see Patten (2014). 14

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relevant instruments of the Council of Europe) or precise terms.16 This development seems politically difficult, since some member states would insist on the subsidiarity of EU law and that the EU is not, and should not be, competent in this field. EU law is, however, familiar with the difference between the proclamation of a fundamental value and the allocation of powers to implement and protect it at the EU level. (b) The second category of evidence for a fundamental value is the protection of linguistic diversity as a wealth and cultural asset of the EU as a whole, referring to all languages spoken within the Union. The protection of linguistic diversity is ‘constitutionally’ entrenched by three types of EU provisions. First, Article 3 EU provides that the Union ‘shall respect its rich cultural and linguistic diversity, and shall ensure that Europe’s cultural heritage is safeguarded and enhanced.’ Second, a provision explicitly allocating powers to the Union: according to Article 167(1) FEU, the EU has a competence in the area of culture, as to the respect of linguistic and cultural diversity. It is neither an exclusive nor a shared competence, but a power to support, coordinate, and complement the action of member states (Art. 6 EU), that is, a power reduced to the so-called ‘European dimension’ of culture. Third, EU law includes a fundamental rights provision: the aforementioned Article 22 of the Charter of Fundamental Rights. Here, we come across paradoxes: On the one hand, respect in dealing with languages has to mean something different from respect in dealing with religions. Respecting religious diversity entails non-discrimination and a neutral attitude. In no way should the institutions of the EU be seen as anything other than secular. By contrast, respecting linguistic diversity seems to require an active attitude since it demands rules and policies in various fields of activity (government, justice, education, consumers, etc.). Nevertheless, EU policy agendas do not include rules and measures in any of those fields for the sake of linguistic diversity. The obvious argument here is that EU powers do not always correspond with the Charter’s good intentions. On the other hand, the formulation of Article 22 of the Charter may strike one as curious.17 It is placed in a section on equality rights but does not proclaim respect for (language) equality, but for diversity. Equality in and before the law and the prohibition of discrimination on several grounds, including language, all have an established meaning in public law, but respecting linguistic diversity is an open notion lacking precise contour and, thereby, allowing for a variety of understandings. Respect for linguistic diversity remains an inaccurately defined public duty. From the drafting of Article 22 of the Charter, we know that some of the members of the Presidium of the first Convention from France and Spain strongly opposed the proposal to insert an explicit minority rights clause into

16 Framework Convention for the Protection of National Minorities, European Charter of Regional or Minority Languages. 17 Strubell (2007), p. 158.

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the Charter.18 Recognition of minority rights became respect for linguistic, cultural, and religious diversity. Nevertheless, cultural, linguistic, and religious features form the triad of identity markers that characterize minority groups according to Article 27 of the International Covenant on Civil and Political Rights. Therefore, I have argued, in other publications, that Article 22 affords a level of protection equivalent to that which is recognised by international human rights law to persons belonging to minority groups, and that it affords minorities within the EU the most basic level of protection, be they ‘old’ residents or ‘new’.19 In addition, both the EU and its member states are party to the UNESCO Convention on the Protection and Promotion of the Diversity of Cultural Expressions adopted on 20 October 2005.20 (c) The third category of evidence for a fundamental value is citizens’ equal access to the EU as an organization and its legal norms. In this respect, we can even speak of some embryonic ‘official-language rights’ in EU law.21 The basic right is contained in the fourth paragraph of Article 24 FEU: ‘Every citizen of the Union may write to any of the institutions or bodies referred to in this Article or in Article 13 of the Treaty on European Union in one of the languages mentioned in Article 55(1) of the Treaty on European Union and have an answer in the same language.’22 The languages mentioned in Article 55(1) EU are those in which the text of the Treaty on European Union is drawn up, the texts in each of these languages being equally authentic: a total of 24 national languages, including Irish and Maltese.23 For some, this is a form of unequal treatment among European languages. Nevertheless, a similar situation prevails even in countries that are highly linguistically tolerant; equal treatment is always recognised to a limited number of national languages. Swedish may be equal to Finnish in Finland, but Sami languages are ‘less equal;’ German, French, and Italian are fully official in Switzerland but not Romansh, the fourth official national language; Dutch and French are treated equally in Belgium but German, though official, enjoys a lower status. This policy area is bound up with broader questions of the constitutional accommodation of language communities within a multilingual and multinational polity. In the end, equality imposes equal treatment in identical situations. Up to now, language arrangements in the EU have been based, in practice, exclusively on national interest and the sovereign considerations of member states, 18

Barriga (2003), p. 109. Arzoz (2008); an updated Spanish version in Arzoz (2012). 20 See Ruiz Fabri (2007). 21 I am using the conceptualisation elaborated in Arzoz (2010). 22 Similarly, Art. 20(2)(d) TFEU and Art. 41(4) of the Charter of Fundamental Rights. 23 Bulgarian, Croatian, Czech, Danish, Dutch, English, Estonian, Finnish, French, German, Greek, Hungarian, Irish, Italian, Latvian, Lithuanian, Maltese, Polish, Portuguese, Romanian, Slovak, Slovenian, Spanish and Swedish. 19

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without taking into account the relative size of each language and the communicative needs of EU citizens.24 It has been up to member states to freely decide on which language(s) are accorded the status of official language(s) within their jurisdiction. Since an unanimous decision of the Council is required to determine the rules governing the languages of the EU institutions,25 the choice by each member state automatically becomes an official language of the Union, unless the member state in question renounces, for whatever reasons, the inclusion of one or more of its national languages (as was the case for Ireland with regard to Irish, from its accession in 1973 until 2005, Luxemburg with regard to Lëtzebuergesch from 1984 to date, and Cyprus with regard to Turkish from its accession in 2004). This present state of affairs may be subject to criticism. Three arguments have been put forward. The first is that of democracy; the situation may be viewed as a step backwards for democracy in those member states where languages other than the national official language may be used in exchanges with government.26 The second refers to compliance with international obligations. The lack of official status within the EU could be construed as an indirect violation of the aims of the European Charter of Regional or Minority Languages: ‘insofar as the Union pre-empts some of the member states’ powers, if citizens may no longer communicate on such matters with the European government in the language that they usually used in their communication with their national government, the European construct induces a watering-down of their language rights.’27 The European Court of Human Rights considers that, through its adhesion to the European Union, a state cannot be freed from its obligations under the European Convention of Human Rights: while implementing EU law, it is bound by the Convention.28 A similar conclusion should also apply to obligations under the European Charter of Regional or Minority Languages. Said democratic and international law arguments are dependent on socio-legal circumstances, which are, to some extent, alien to the languages themselves, though characteristic of the language communities. It seems evident that, if a language enjoys a given status under domestic law, EU law should not erode it. Nevertheless, no European language seems to be in the situation described nor to fulfil the described condition. Thus, Basque, Galician, and Catalan in Spain, Frisian in the Netherlands, or Welsh in the United Kingdom may enjoy co-official or quasi-official status in their traditional regions, but they lack the state-wide official status that extends to exchanges with national authorities.

24

See Milian-Massana (2004) and Creech (2005). Art. 290 EC. 26 Dubos and Guset (2015), p. 137. 27 Dubos and Guset (2015), p. 137. 28 Application no. 45036/98, Bosphorus Hava Yolları Turizm ve Ticaret Anonim Şirketi c. Irlanda (ECHR 30 June 2005), para. 152. 25

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The third argument is that of demography; it seems odd that the Catalan language does not enjoy official status within the EU, despite being spoken by seven million EU citizens, which is to say more speakers than each of seven of the current EU official languages (Danish, Finnish, Slovak, Slovenian, Lithuanian, Latvian, Estonian and Maltese).29 By contrast, the promotion of linguistic skills for EU citizens may qualify as a policy objective, but it is difficult to maintain that EU Treaties recognise it, or should recognise it, as a fundamental value.

3 Is Language Equality a Shared Value in the EU? Can language equality be a fundamental value of the EU if it is not a fundamental value for the majority of its member states—and perhaps not even a universal principle? Most states in and outside the EU were built and are still based on linguistic and cultural homogeneity. Each European state has, in the main, granted a dominant status to a single, ‘national’ language and has reinforced its position in society through a wide variety of measures which, in essence, make the use of said language by its citizens indispensable. No EU member state, however, would accept linguistic homogeneity as the basis for European integration, which is to say, they would not accept the same methodology to achieve the integration of the peoples of Europe that they implemented in the past for the sake of their state- and nation-building (and, to varying degrees, still implement today). The attitude of EU member states towards the Council of Europe’s Charter of Regional or Minority Languages is rather varied. Upon its twentieth anniversary (1998–2018), only seventeen EU member were parties to the Charter; though for different reasons, France, Italy, Belgium, Bulgaria, Lithuania, Latvia, Estonia, Ireland, Malta and Portugal, had all not signed.30 A traditionally strong opponent to the recognition of minority and language rights is France.31 Revealingly, it held a reservation to the ratification of Article 27 of the International Covenant on Civil and Political Rights, the basic international human rights law standard concerning the protection of minorities.32 In 1999, the French Conseil constitutionnel declared that recognition of specific rights to groups of speakers of regional or minority languages in certain territories, as it would involve

29

Dubos and Guset (2015), p. 118. Croatian has a similar number of speakers within the EU to Catalan, but it is related to the Serbo-Croatian that possesses more speakers outside the EU in Serbia, Bosnia-Herzegovina and Montenegro, who could join to the EU in the mid-term. 30 As of 30 June 2019. 31 For background and current debates, see Judge (2000), Trabant (2002) and Oakes (2011). 32 See de Varennes (1996).

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the ratification of the European Charter of Regional or Minority Languages, was not consistent with the constitutional principles of indivisibility of the Republic, equality before the law and unity of the French people.33 Nevertheless, in 2014 the French National Assembly adopted, by a large majority, a constitutional amendment permitting the ratification of the Language Charter, and the Senate debated the proposed constitutional amendment in 2015. Therefore, for France, ratification seems to be closer than ever. With or without ratification of the Language Charter, member states will never give up their exclusive powers on language, education, and culture. They intend to remain the masters of their own language affairs.34 The Lisbon judgment by the German Federal Constitutional Court declared national language and related issues (education and culture) to be one of the famous ‘red lines’ or inalienable policy domains of member states that European integration should never impinge upon.35 Unfortunately, in many cases, advocacy of linguistic diversity at the supranational level does not correspond with equal advocacy at the state and sub-state levels. Many voices support multilingualism within EU institutions and the granting of equal status to every member state language, while they insist on, or are in no way concerned about, cultural and linguistic homogeneity within their own nation-states nor the preservation of the privileged status for a national language. They are concerned about the impending demise of their national language at the supranational level, but they pay no mind to the impending demise of minority and regional languages at the sub-state level. There is a double standard here. As the great sociolinguist Joshua A. Fishman once observed, ‘the states are even more reluctant to apply the principle of ethnolinguistic democracy below (or within) the level of the state than they are to set aside the principle of ethnolinguistic equality above the level of the state’.36 Moreover, the concept of limits (costs, efficiency, workability, manageability and so on) is vociferously put off in one context (the ‘manageable’ supranational case) and prematurely applied to the other (the ‘obviously unmanageable’ intra-state case): ‘The Netherlands is very certain that Nederlands [Dutch] is as good a language as English for the operation of EC, but it is not sure that Frisian is as good a language as Nederlands for the operation of local public services in Friesland’.37 As Dubos and Guset put it, ‘[t]his malleability in the concept of linguistic diversity depending on the level (EU/member state) or the context (depending on the member state) into which it fits is indisputably a manifestation of the European Union’s federal nature: whilst being binding on the member states, it must also work with them and, in particular, take into account their respective political, social and cultural structures.’ That being the case, it is not only the adhesion or the

Décision n 99-412 DC (Conseil constitutionnel 15 juin 1999), point 10. Dubos and Guset (2015), p. 132. 35 BVerfG 163, 267, 2 BvE 2/08 of 30.6.2009, Absatz-Nr. 260. See Arzoz (2014). 36 Fishman (1994), p. 55. 37 Fishman (1994), p. 55. 33 34

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incorporation by reference to universal human rights that is urgently needed to redress these examples of double standards (as Art 27 of the International Covenant on Civil and Political Rights), but also the elaboration of basic principles of fairness for ethnolinguistic affairs. As we will now see, the ambivalence of the concept of linguistic diversity helps to curtail the ambition of EU institutions.

4 Assessing EU Performance in Respecting Linguistic Diversity Since 1981, the European Parliament has passed eight inspiring resolutions with regard to linguistic diversity, specifically regarding minority or regional languages, calling on EU institutions and member states to take different legislative, administrative and financial measures.38 Nevertheless, few of the measures proposed in these resolutions have actually been implemented by the Commission and the Council. All implemented measures have been financial in nature.39 Support for regional or minority languages projects was provided in a separate line in the budget from 1983 to 2000. In 1998, the European Court of Justice declared that said action was not covered by law.40 A second form of financial support for regional or minority languages—the only one operative from 2000 onwards—has been so-called mainstreaming: the inclusion of language considerations into all EU programmes and actions. Lastly, funding has also been devoted to the setting up of structures to support networking and cooperation between regional or minority language communities and projects. The European Bureau for lesser-used languages was established in 1982 and closed in 2010. Three further research and documentation centres (Mercator Centres) and the Network for the Promotion of Linguistic Diversity have also been funded. A thorough study conducted on the EU’s financial support for regional or minority languages criticised the mainstreaming strategy. Instead of a directed, targeted approach, mainstreaming, as adopted by the Commission, has resulted in a substantial decrease in the access for regional or minority languages to EU funding. Some of the EU’s largest programmes aimed at supporting education and culture give priority to official languages, and more specifically, to the most dominant among them. Specific safeguards, in the form of explicit mentions of support in the general objectives or relevant programmes, are necessary.41 Many other recommendations by the European Parliament have been ignored. They include: a broader Treaty provision on the respect and promotion of linguistic

38

In detail, see Nic Shuibhne (2002), pp. 61–70, 264–267; Vizi (2012), pp. 150–151. See Gazzola et al. (2016). 40 Case C-106/96, United Kingdom of Great Britain and Northern Ireland v Commission of the European Communities, (ECJ 12 May 1998). 41 Gazzola et al. (2016), pp. 52–53. 39

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diversity in Europe42; that the Commissioner responsible for multilingualism ‘be tasked with promoting linguistic diversity and equality at EU level;’43 the submission of legislative proposals on language diversity; the creation of an agency on linguistic diversity and language learning44 or a centre for linguistic diversity ‘that will strengthen awareness of the importance of lesser-used, regional and minority languages;’45 that the Member States sign, ratify, and enforce the Framework Convention for the Protection of National Minorities and the European Charter for Regional or Minority Languages (both petitions are recurrently submitted),46 and an effective EU-wide monitoring of the situation of indigenous and linguistic minorities.47 Some authors blame the whole of EU institutions for this deficient situation.48 Nevertheless, in this area, as in many others, the Commission is trapped between the Parliament and the Council.49 Despite the fact that the EU has put so much effort into its multilingualism policy, the main obstacle to overcome in its implementation is still ‘the cultural self-centredness of its own member states.’50 Certainly, European integration ‘lessened the need for national self-assertion, for homogeneous narratives of national continuity,’51 and member states now conduct themselves more liberally than in the past with regard to their internal linguistic and cultural diversity.52 In fact, the constitutionalisation of regional languages in some European states has been seen as a challenge to the traditional nation-state.53 Nevertheless,

42 European Parliament resolution with recommendations to the Commission on European regional and lesser-used languages – the languages of minorities in the EU – in the context of enlargement and cultural diversity 2003/2057(INI) (2003), (Report Michl Ebner), annex to the motion for resolution, point no. 25 (a new Article 151 EC): ‘The Community shall, within its spheres of competence, respect and promote linguistic diversity in Europe, including regional or minority languages as an expression of that diversity, by encouraging cooperation between Member States and utilising other appropriate instruments in the furtherance of this objective.’. 43 European Parliament on language equality in the digital age 2018/2028(INI) (2018), point no. 14. 44 Michl Ebner Report, already mentioned, letter A. 45 European Parliament resolution on language equality in the digital age 2018/2028(INI) (2018), point no. 19. 46 European Parliament resolution on endangered European languages and linguistic diversity in the European Union 2013/2007(INI) (2013), points no. 3 and 28; European Parliament resolution on protection and non-discrimination with regard to minorities in the EU Member States 2017/ 2937(RSP) (2017), point no. 14. 47 European Parliament resolution on protection and non-discrimination with regard to minorities in the EU Member States 2017/2937(RSP) (2017), point no. 7. 48 One of the most critical views is held by Robert Phillipson. He writes that ‘EU institutions can be considered as in effect practising linguistic apartheid, even if Eurolaw is promulgated in all official languages. Minority languages have no place’. See Phillipson (2011), p. 62. 49 Strubell (2007), p. 173. 50 Gravier and Lundquist (2011), p. 94. 51 Müller (2007), p. 107. 52 For an introduction to language and nationalism in Europe, see Barbour and Carmichael (2000). 53 See the title of the comparative study by Arlettaz (2014).

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as of yet, member states have not renounced their dominant national(istic) understanding of culture within their boundaries nor the active defence of their national language, which results in a kind of ‘plural monoculturalism’ at the EU level. Criticism should, therefore, not be directed at EU institutions, but at member states, who are the Herren (masters) of the Treaties. Member states are relevant from three perspectives: in the allocation of powers and definition of credible commitments to the EU, in the approval of policies and legal measures through EU institutions, and in their implementation at the ground level. First, it is of member states’ interest that the Union’s powers with respect to language matters remain limited and do not specifically relate to regional or minority languages in any sphere.54 There is no explicit power regarding language affairs, only supporting powers in the field of culture and education, the so-called ‘European dimensions’ of two domains essentially in the hands of member states. Though commerce of cultural and audio-visual services is a matter that falls within the exclusive competence of the Union, the Treaties require that the decision be unanimous when ‘those agreements risk prejudicing the Union’s cultural and linguistic diversity’.55 Second, member states sit on the main legislative organ (the Council) of the European Union. EU institutions limit themselves to acting within the competences and rules established in the Treaties. They cannot proclaim of their own initiative that, for example, Frisian or Catalan is an official language of the EU, nor proceed to promulgate EU legal acts in Frisian or in Catalan. It is the member states who, both individually at the national level and collectively at the EU level, deny the status of regional or minority languages and who show ambivalence as to the principles they endorse at the EU level and the policies they promote domestically with regard to fostering the multilingual skills of their citizens or recognising the rights of speakers of lesser used languages. Third, even if the EU’s limited powers and member states’ interest have led only to support programmes and action, according to the execution federalism that characterizes the EU, they must still be implemented by the authorities of the member states. In some programmes that support linguistic projects, authorities have expressly been afforded the power to identify the list of languages for which support can be given; it is up to them to extend the scope of application of the EU programme to regional or minority languages or not.56

54

See Nic Shuibhne (2002) and Dubos and Guset (2015), p. 131. Art. 207(4)(a) TFEU. 56 See Art. 1 of the Decision No 1934/2000/EC of the European Parliament and of the Council on the European Year of Languages 2001 OJ L 232/1 – 5 (2000): ‘2. During the European Year of Languages, information and promotional measures will be undertaken on the theme of languages, with the aim of encouraging language learning by all persons residing in the Member States. These measures will cover the official languages of the Community, together with Irish, Letzeburgesch, and other languages in line with those identified by the Member States for the purpose of implementing this Decision.’. 55

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These aforementioned factors—the ambivalence of normative foundations, the narrow scope of powers in the field, the limited ambition of EU institutions, the requirement of EU law to be implemented by member states—explain the modest performance of the EU with regard to the protection and promotion of linguistic diversity.

5 Perspectives The promotion and protection of language equality in the European Union has three basic interrelated deficiencies. First, a lack of moral and philosophical criteria to govern choices which respect linguistic diversity and protecting language equality,57 a fact which explains the absence of clear commitments in this regard at the EU level. Whatever the moral principle laid down—or strived after—in this field with regard to the respect for linguistic diversity—language justice, status or dignity equality or simply accommodation—, it requires unequivocal formulation by means of constitutional and legal norms. A shift from the Union’s duty to respect to a duty to promote is necessary. Second, a lack of policy. Entrenched fundamental values and guiding moral criteria cannot operate on their own. Their implementation requires social intervention through policy. In a composite, multilevel polity, respecting linguistic diversity requires policies and measures at different levels and in different contexts. Third and finally, different areas of responsibility must be distinguished and allocated between the centre (the Union) and the parts (the member states). All of the responsibility to implement language policies in the EU cannot lie with EU institutions, and vice versa. The EU must manage linguistic diversity in its own organisation and in its external relationships, but the principal responsibility for maintaining and enhancing linguistic diversity should remain with member states.58 Accordingly, EU responsibility can be either exclusive or shared, or merely complementary to that of member states. In a departure from underlying values, the following key areas emerge: (a) EU citizens must be guaranteed equal access to EU legal acts, regardless of the language they use. This is a field for EU exclusive responsibility. (b) Speakers of all EU languages save English—from ‘big’ official languages to non-official languages, official lesser-used languages, and co-official regional languages—need adequate policies to achieve language equality in the digital age: new technologies, social media, and multimedia platforms. This policy area should be shared by both the EU and member states. EU measures should especially take into account the difficulties of lesser-used languages to cope

57 58

Kraus and Kazlauskaitė-Gürbüz (2014), pp. 518–519; similarly, Climent-Ferrando (2016), p. 11. Kraus and Kazlauskaitė-Gürbüz (2014), p. 524.

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with market forces and include their specific cultural content in the new forms of entertainment. (c) Speakers of minority languages need linguistic education rights; linguistic services in local, regional, and state administrations and in the administration of justice; anti-assimilation and anti-discrimination measures; combating existing prejudices, etc. Basic standards in this regard need to be incorporated by reference into EU primary law, even if the responsibility for implementing them and establishing the relevant policies continues in the hands of member states. Finally, we must recall that even core aspects of member states’ constitutional autonomy can be framed by EU law, if the need arises. The ECJ’s recent judgments concerning the independence of the Polish judiciary are an exceptionally good illustration of the increasing capacity of the EU to judicially review member states’ compliance with elements of the rule of law clause of Article 2 EU,59 the same treaty provision that also proclaims, as one of the EU’s core values, ‘respect for human rights, including the rights of persons belonging to minorities.’ Therefore, in exceptional circumstances, the ECJ could also monitor member states’ performance in the field of minority rights, in addition to the political procedure laid down in Article 7 (2) EU. This very case has stressed the significance of values for the European integration process—the relevance of the constitutional and normative dimensions of Article 2 EU—and the need to enforce them to maintain credibility.

References Ahrens, Rüdiger. 2003. Europäische Sprachenpolitik / European Language Policy. Heidelberg: Winter. Arlettaz, Jordane. 2014. L’État-Nation à l’épreuve de la constitutionnalisation des langues régionales. Étude comparée: Belgique, Espagne, Italie, Suisse. Paris: Mare & Martin. Arzoz, Xabier. 2008. The Protection of Linguistic Diversity Through Article 22 of the Charter of Fundamental Rights. In Respecting Linguistic Diversity in the European Union, ed. Xabier Arzoz, 145–173. Amsterdam-Philadelphia: John Benjamins. ———. 2010. Accommodating Linguistic Difference: Five Normative Models of Language Rights. European Constitutional Law Review 6: 102–122. ———. 2012. El respeto de la diversidad lingüística a través del art. 22 de la Carta de Derechos Fundamentales de la Unión Europea. Revista Española de Derecho Europeo 43: 185–226.

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Case C-216/18, Minister for Justice and Equality v LM, (ECJ July 2018) and Case C-618/18, Gabriele Di Girolamo v Ministero della Giustizia, (ECJ 24 June 2019). Formally, Article 19 TEU, in conjunction with Article 47 of the Charter of Fundamental Rights, was the scrutinized provision, but the Court declared that Article 19 TEU ‘gives concrete expression to the value of the rule of law affirmed in Article 2 TEU’ (para. 50 and 47, respectively). The Court ruled that ‘although [. . .] the organisation of justice in the Member States falls within the competence of those Member States, the fact remains that, when exercising that competence, the Member States are required to comply with their obligations deriving from EU law’ (C-618/18, para. 52).

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———. 2014. National Language Policy Within the Framework of European Law. In The EU Between ‘an Ever Closer Union’ and Inalienable Policy Domains of Member States, ed. Thomas Giegerich, Oskar Josef Gstrein, and Sebastian Zeitzmann, 377–420. BadenBaden: Nomos. Barbour, Stephen, and Cathie Carmichael. 2000. Language and Nationalism in Europe. Oxford: Oxford University Press. Barriga, Stefan. 2003. Die Entstehung der Charta der Grundrechte der Europäischen Union. Baden-Baden: Nomos. Climent-Ferrando, Vicent. 2016. Linguistic Neoliberalism in the European Union. Politics and Policies of the EU’s Approach to Multilingualism. Revista de Llengua i Dret / Journal of Language and Law 66: 1–14. Creech, Richard L. 2005. Law and Language in the European Union. The Paradox of a Babel “United in Diversity”. Groningen: Europa Law. de Varennes, Fernaned. 1996. Language, Minorities and Human Rights. The Hague: Kluwer Law International. de Witte, Bruno. 1985. Linguistic Equality: A Study in Comparative Constitutional Law. Revista de Llengua i Dret 6: 43–126. Dubos, Oliver, and Victor Guset. 2015. European Law and Regional or Minority Languages: Cultural Diversity and the Fight Against Linguistic Vulnerability. In Protecting Vulnerable Groups – The European Human Rights Framework, ed. Francesca Ippolito and Sara Iglesias Sánchez, 117–139. Oxford: Hart Publishing. Fishman, Josuah Aaron. 1994. On the Limits of Ethnolinguistic Democracy. In Linguistic Human Rights. Overcoming Linguistic Discrimination, ed. Tove Skutnabb-Kangas and Robert Phillipson, 49–61. Berlin: Mouton de Gruyter. Gazzola, Michele, Francois Grin, Johann Häggman, and Tom Moring. 2016. The EU’s Financial Support for Regional or Minority Languages: A Historical Assessment. Journal of Ethnic Studies 77: 33–66. Gravier, Magali, and Lita Lundquist. 2011. Getting Ready for a New Tower of Babel. In Linguistic Diversity and European Democracy, ed. Anne Lise Kjær and Adamo Silvia, 75–96. Surrey: Ashgate. Grin, Francois. 2003. Diversity as Paradigm, Analytical Device, and Police Goal. In Language Rights and Political Theory, ed. Will Kymlicka and Alan Patten, 169–188. Oxford: Oxford University Press. Judge, Anne. 2000. France: One State, One Nation, One Language? In Language and Nationalism in Europe, ed. Stephen Barbour and Cathie Carmichael, 44–82. Oxford: Oxford University Press. Kraus, Peter, and Rüta Kazlauskaitė-Gürbüz. 2014. Addressing Linguistic Diversity in the European Union: Strategies and Dilemmas. Ethnicities 14: 517–518. McRae, Kenneth D. 2007. Toward Language Equality: Four Democracies Compared. International Journal for the Sociology of Language 187 (188): 13–34. Milian-Massana, Antoni. 2004. Le régime juridique du multilinguisme dans l’Union européenne. Le mythe ou la réalité du principe d’égalité des langues. Revue juridique Thémis 38: 211–260. Müller, Jan-Werner. 2007. Constitutional Patriotism. Princeton: Princeton University Press. Nic Shuibhne, Niamh. 2002. EC Law and Minority Language Policy. The Hague: Kluwer Law International. Oakes, Leigh. 2011. Regional Languages, the European Charter and Republican Values in France Today. In Uniformity and Diversity in Language Policy, ed. Catrin Norrby and John Hajek, 68–85. Bristol: Multilingual Matters. Patten, Alan. 2014. Equal Recognition. The Moral Foundations of Minority Rights. Princeton: Princeton University Press. Paunio, Elina. 2007. The Tower of Babel and the Interpretation of EU Law – Implications for Equality of Languages and Legal Certainty. In Private Law and the Many Cultures of Europe,

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ed. Thomas Wilhelmsson, Elina Paunio, and Annika Pohjolainen, 385–402. The Hague: Kluwer Law International. Phillipson, Robert. 2011. The EU and Languages: Diversity in What Unity? In Linguistic Diversity and European Democracy, ed. Anne Lise Kjær and Silvia Adamo, 57–74. Surrey: Ashgate. Ruiz Fabri, Hélène. 2007. Jeux dans la fragmentation: La Convention sur la promotion et la protection de la diversité des expressions culturelles. Revue internationale de droit international public 1: 43–87. Strubell, Miquel. 2007. The Political Discourse on Multilingualism in the European Union. In The Language Question in Europe and Diverse Societies – Political, Legal and Social Perspectives, ed. Dario Castiglione and Chris Longman, 149–183. Oxford: Hart. Trabant, Jürgen. 2002. Der Gallische Herkules. Tübingen: A. Francke Verlag. Vizi, Baláz. 2012. Minority Languages and Multilingualism in Europe and in the European Union. European Studies 29: 135–157.

Part II

The EU as Protector of Equality: General Part of EU Antidiscrimination Law

Uniformity or Variation: Should the CJEU ‘Carry Over’ its Gender Equality Approach to the Post-2000 Equality Grounds? Colm O’Cinneide

Contents 1 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 The CJEU Approach to Gender Equality . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.1 The Interpretative Approach of the CJEU to Equal Pay . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.2 The Interpretative Approach of the CJEU to Sex Discrimination . . . . . . . . . . . . . . . . . . . 2.3 The Defining Features of the CJEU’s Gender Equality Approach . . . . . . . . . . . . . . . . . . 3 The CJEU Approach to the ‘Post-2000 Grounds’ . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.1 The ‘Carry Over’ of the Gender Equality Approach to the Post-2000 Grounds . . . . 3.2 Departures from the Gender Equality Template . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.3 External Complicating Factors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 Conclusion: What Should the CJEU Do? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

116 116 116 119 120 122 122 125 127 131 133

Abstract The CJEU has developed a purposive and autonomous approach to applying EU gender equality norms, which has been instrumental in driving forward the development of equal pay and sex discrimination law across Europe. In so doing, the Court has attracted little backlash or resistance: indeed, its gender equality caselaw is one of the most acclaimed and least controversial elements of its jurisprudence. The Court has carried over this approach to the ‘post-2000’ equality grounds now also protected under EU law, namely age, disability, religion or belief, race and ethnicity, and sexual orientation. However, there are signs emerging in the case-law that the gender equality template may not be a perfect fit for all of these different non-discrimination grounds. Furthermore, aspects of the Court’s gender-influenced case-law in respect of the post-2000 grounds have begun to attract a degree of backlash. This chapter analyses these tensions, and the normative issues arising as a result of the ‘carry over’ of the Court’s gender equality approach to the post-2000 grounds.

C. O’Cinneide (*) Faculty of Laws, University College London, London, UK e-mail: c.o'[email protected] © Springer Nature Switzerland AG 2020 T. Giegerich (ed.), The European Union as Protector and Promoter of Equality, European Union and its Neighbours in a Globalized World 1, https://doi.org/10.1007/978-3-030-43764-0_6

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1 Introduction The CJEU follows a particular approach in interpreting and applying EU gender equality law. It gives a purposive interpretation to its provisions, with a view to ensuring effective protection against sex discrimination. It also emphasises the fundamental character of the right to gender equality, while adopting an autonomous approach in this context that takes little account of the specifics of national law and practice or ‘external’ (non-EU) legal norms. The Court first adopted this approach in the mid-1970s, and encountered little if any serious backlash for so doing. More recently, since the scope of EU equality law was extended in 2000 to include the new ‘post-2000’ grounds of age, disability, religion or belief, race and ethnicity, and sexual orientation, this gender equality approach has been carried over and applied in the context of the new grounds. However, there are signs emerging in the case-law that the Court may be beginning to deviate from this approach—at a time when the legitimacy of aspects of the CJEU’s equality jurisprudence is starting to come under attack. This chapter explores these issues. Part I examines the Court’s gender equality approach, and traces its historical evolution. Part II examines the ‘carry over’ of this approach to the post-2000 grounds, and the tensions this has generated. The concluding Part III outlines the normative issues underpinning these issues, and argues that the CJEU should be transparent in addressing these issues.

2 The CJEU Approach to Gender Equality The CJEU has adopted a particular approach to the interpretation of gender equality requirements within the framework of EU law, especially as they relate to equal pay and sex discrimination. This approach is characterised by the CJEU’s emphasis on giving a purposive and expansive interpretation to the relevant provisions of EU gender equality law, with a viewing to providing effective protection against discriminatory treatment. This approach is also autonomous, top-down and insulated to a large degree from the influence of non-EU legal sources. It has become the general template for how the CJEU applies EU non-discrimination norms more generally. Its development and evolution does deserve some close study.

2.1

The Interpretative Approach of the CJEU to Equal Pay

As is well known, Article 119 of the Treaty of Rome 1957 required member states of the newly established EEC to apply the principle of equal pay between men and women for work for equal value. Its provisions were not legally innovative. The importance of the equal pay principle had been acknowledged as early in 1919 in

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Article 427 of the Treaty of Versailles, which recognised it as a general principle for ‘regulating labour conditions which all industrial communities should endeavour to apply’. Article 23(2) of the Universal Declaration of Human Rights had later in 1948 affirmed that ‘everyone, without any discrimination, has the right to equal pay for equal work’.1 Within the member states of the newly formed EEC, the equal pay principle had begun to be given effect in domestic law and/or national collective bargaining mechanisms. France had gone furthest down this route, recognising it in the provisions of the 1946 Constitution and subsequently in its Labour Code. It therefore, as is well known, insisted on the inclusion of Article 119 in the Treaty to create an economic level playing-field in this regard.2 This provision of the Treaty of Rome was thus not a radical innovation—but rather a formal commitment to give effect to a principle whose importance had already been acknowledged by the EEC member states. However, this principle was understood in highly abstract terms. The concept of ‘equal value’ was generally understood in very narrow terms, as only applying to jobs which were essentially identical in terms of duties and responsibilities. Furthermore, little progress had been made at national level to translate the principle into tangible legal form. Indeed, even after Article 119 was inserted into the Treaty of Rome, the EEC member states found it difficult to agree how to give effect to its requirements. Attempts in the 1960s to implement the equal pay principle effect through incremental labour market measures were largely unsuccessful. Article 119 itself was widely regarded as setting out a vague aspiration, which was not capable of being enforced by the ECJ or national courts.3 The situation began to change in the early 1970s, with more comprehensive equal pay legislation begin introduced in some member states.4 However, in every member state, equal pay law was in an embryonic state by the mid-1970s. As a consequence, the ECJ’s conclusion in Defrenne v Sabena5—where the Court held that Article 119 should be given direct horizontal effect in the legal systems of the member states—was transformative. Defrenne made it possible for equal pay claims to be litigated across the EEC, by cutting through the restrictive approach that had been adopted in national law restrictions in national law which had limited the development of the law in this area. It also made the ECJ the ultimate arbitrator of equal pay law, thanks to the supremacy of European law and the Court’s role as final interpreter of the requirements of the Treaty of Rome. Furthermore, the Court assumed this dominant role just as the provisions of the newly enacted Equal 1

In addition, the International Labour Organisation (ILO) had adopted the Equal Remuneration Convention (No. 100) in 1951, which affirmed the principle of equal remuneration for men and women workers for work of equal value, and also the Equal Remuneration Recommendation (No. 90) of 1951 (No. 90). 2 Beck (1978), pp. 112–131. 3 Ibid. 4 For example, the UK had already enacted the relatively detailed Equal Pay Act 1970 when it entered the EEC in 1973. 5 Case C-43/75, Defrenne (ECJ 8 April 1976), ECR 455.

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Pay Directive 75/117/EC were coming into force, which gave clear legislative structure to the requirements of Article 119. Thus, in the wake of Defrenne, the ECJ became both the dominant legal authority in this field and also simultaneously the spearhead of jurisprudential innovation. The Court’s case-law gradually set out how the requirements of Article 119 and the Directive 75/117/EC should be interpreted and applied by national courts. This jump-started the formerly stalled development of equal pay law across Europe. The purposive interpretation given by the ECJ to the requirements of Article 119 and Directive 75/117/EC played a particularly significant role in this regard: the Court’s expansive interpretation of the concepts of ‘pay’ and ‘equal value’,6 and its case-law relating to the shift in the burden of proof,7 helped to transform how the equal pay principle was applied within the national law of the EU member states. Furthermore, as the ECJ’s equal pay case-law evolved after Defrenne, it mirrored broader shifts in the European political and legal landscape. The Court’s purposive interpretation of the equal pay principle chimed with growing demands for greater gender equality in the workplace. The Court’s equal pay jurisprudence also reflected a growing demand for European integration to develop a greater social dimension, to supplement its predominant economic orientation.8 As a consequence, this jurisprudence was enthusiastically welcomed by trade unions, campaigning lawyers and feminist activists, who started to use EU law as a tool to challenge barriers to pay equality at the national level.9 The Court’s equal pay jurisprudence also attracted little if any sustained ideological opposition. Member state legislatures, governments and courts often dragged their feet in implementing the provisions of EU equal pay law, while employer organisations periodically grumbled about aspects of the ECJ’s judgments. However, there was little substantial resistance to the Court’s interpretative approach, or its influence upon national equal pay law. Political and legal elites across Europe were committed to respecting gender equality (in the abstract, at least). They were also broadly supportive of the process of judicialised, top-down integration that had shaped much of the substance of EU law since the ECJ’s ground-breaking judgments in Van Gend en Loos10 and Costa v ENEL.11 Furthermore, the underdeveloped state of equal pay law in the member states also meant that there were no competing

6

See e.g. Case C-237/85, Rummler v Dato-Druck (ECJ 1 July 1986), ECR 2101. See e.g. Case C-109/88, Danfoss, (ECJ 17 October1989), ECR 3199. 8 In Defrenne, the Court emphasised the importance of its ‘double aim. . .at once economic and social’ of both eliminating unfair competitive advantages and bringing about the ‘constant improvement of. . .living and working conditions’: Case C-43/75, Defrenne (ECJ 8 April 1976), ECR 455, [8]-[11]. 9 Chalmers and Barroso have noted that individual rights have tended to be recognised within EU law when they ‘furthered the realization of the collective objectives of EU government’: this analysis fits the pattern outlined in this paper with regard to equal pay and sex discrimination more generally. See Chalmers and Barroso (2014), pp. 105–134. 10 Case C-26/62, Van Gend & Loos (ECJ 5 February1963) ECR 1. 11 Case C-6/64, Costa v ENEL (ECJ 15 July 1964) ECR 585. 7

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national legal or policy approaches which might have come into conflict with the approach of the ECJ. As such, the ECJ’s equal pay case-law chimed with the European Zeitgeist. The Court was able to develop its purposive approach to interpreting the equal pay provisions of EU law, without experiencing any real political or legal backlash at national level.

2.2

The Interpretative Approach of the CJEU to Sex Discrimination

A similar dynamic applied to the development of the ECJ’s sex discrimination jurisprudence. As with the equal pay principle, gender equality had been recognised as a fundamental human right in Article 2 of the Universal Declaration of Human Rights and subsequently by Article 14 of the ECHR. The ILO Discrimination (Employment and Occupation) Convention 1958 (No. 111) aimed to eliminate discrimination in employment and occupation across a number of grounds, including sex,12 while the Preamble of the European Social Charter 1961 (ESC) read together with Article 8 of the Charter provided that there should be no discrimination on the basis of sex in the enjoyment of social rights. These international standards influenced the development of national law within the EU member states. By the early 1970s, it was common for national labour law to provide some protection against sex discrimination in employment. However, as with equal pay law before Defrenne, the scope and substance of this legal protection was often uncertain—and, in general, sex discrimination law was highly underdeveloped across Europe. As a consequence, when the ECJ began to interpret and apply the provisions of the Equal Treatment Directive 76/207/EC, the Court once again became both the dominant legal authority in this field and also simultaneously the leading driver of legal reform. The Court’s purposive interpretation of the provisions of the Directive gave new teeth to sex discrimination law, especially as regards the application of the objective justification in the context of indirect discrimination claims, the shift in the burden of proof, and the development of strong and effective protection against pregnancy discrimination. This case-law in turn gave new impetus to the development of national law.13 Furthermore, as with its equal pay jurisprudence, the ECJ’s interpretative approach chimed with feminist-driven demands for greater gender equality and the opening up of labour markets to women across Europe. The Court’s rigorous application of the provisions of the Equal Treatment Directive helped to enhance the social aspect of EU law, and reinforced its human rights credentials. It also again attracted little if any sustained backlash: all EU member states were committed to

12 13

See also Article 6 of ILO Recommendation No. 90 (1951). For e.g. developments in the UK, see O’Cinneide and Liu (2014), pp. 239–265.

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advancing gender equality, and accepted the ECJ’s role in driving this project forward through the top-down integrative mechanism of Directive 76/207/EC and the Court’s associated jurisprudence.

2.3

The Defining Features of the CJEU’s Gender Equality Approach

Thus, in both the area of equal pay and sex discrimination more generally, EU antidiscrimination law developed in a relatively self-contained legal space. The ECJ became the pace-setter in this area of rapid legal development at an early stage. It did not have to engage in any comprehensive way with other national, regional or international approaches to gender equality, which were under-developed and lacking in substance when the ECJ began to develop its case-law. As a result, the Court was able to adopt an autonomous approach to gender equality, just as it did in other areas of EU law: it was free to develop its own purposive approach to interpreting EU gender equality law, without coming into conflict with alternative approaches and/or opposition to the integrationist impact of its case-law. This situation has persisted to the current time. National equal pay and sex discrimination law has acquired more content over the last few decades, with EU member states giving effect to the requirements of EU gender equality as interpreted by the ECJ in different ways.14 The ECrtHR has begun to develop a relatively substantial gender equality jurisprudence, structured around its interpretation of Article 14 ECHR. The International Covenant on the Elimination of Discrimination against Women (CEDAW) was opened for signature in 1981: its provisions set out a relatively detailed set of legal and policy norms related to the promotion of gender equality, which state parties (including all EU member states) are supposed to implement in national law and policy. However, these developments have had little if any impact on the jurisprudence of the (now) CJEU. It continues to generate dozens of judgments a year relating to equal pay, sex discrimination and associated gender equality issues, which are decided by reference to the well-established contours of the CJEU’s own case-law.15 Other approaches—whether national, regional (e.g. the ECHR) or international (e.g. CEDAW) are rarely referenced, yet alone exert any tangible influence on the Court’s judgments. This point can be illustrated by the CJEU’s positive action jurisprudence. As is well known, the Court has interpreted the Equal Treatment Directive as precluding

14

Mulder (2017). Significantly, when EU gender equality was revised and updated in the mid-2000s, no substantial alterations were made: see Council Directive 2006/54/EC on the implementation of the principle of equal opportunities and equal treatment of men and women in matters of employment and occupation (recast) (‘the Recast Gender Equality Directive’), OJ L 204/23–36 (2006).

15

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virtually all forms of direct sex discrimination, irrespective of whether favourable treatment of a particular sex was intended to compensate for any disadvantages they might face. As the Court held in judgments such as Badeck16 and Abrahamsson,17 such positive action is only permissible if sex is used as a ‘break factor’ to distinguish between equally qualified applicants. This approach has been the subject of plenty of academic criticism, based on the argument that the Court has prioritised a formal rather than a substantive approach to gender equality. Member states have also cautiously pushed back against the Court’s interpretation.18 However, this has had a limited impact on the Court’s jurisprudence. Furthermore, the Court has not engaged with the more permissive approach to positive action adopted by the ECrtHR in its slowly-evolving gender equality jurisprudence, or with the provisions of Article 4(1) of CEDAW which provide that positive action measures should not be treated as constituting discrimination.19 Instead, it has maintained its own autonomous approach, making only incremental adjustments in its case-law. EU gender equality law thus continues to be shaped by the CJEU’s case-law, which evolves according to its own internal logic within a largely self-contained legal space. This pattern of development continues to attract little if any real controversy. EU equal pay and sex discrimination law are highly developed, even when compared to the legal situation in other affluent democracies. As a result, the Court’s gender equality case-law is generally viewed as having made a very positive contribution to European society.20 Furthermore, the rigorous nature of the Court’s jurisprudence has ensured that it has acquired considerable ‘output legitimacy’. The Court is widely perceived to have broadly ‘got it right’ when it comes to the general thrust of its reasoning. This has helped the Court to maintain its status as the ‘frontrunner’ in the development of gender equality law across Europe, and reinforced the legitimacy of the top-down, integrative role it continues to play. More generally, respect for gender equality is now viewed as a core ‘European value’. As early as Defrenne, the ECJ stated that the principle of equal treatment on the ground of sex was a general principle of the EU legal order. Art 2 TEU now affirms that equality between men and women is one of the foundational values of the EU, while Article 3 provides that promoting greater gender equality is one of its core aims.21 The competency of the EU in this field, and by extension that of the 16

Case C-158/97, Badeck, (ECJ 28 March 2000), ECR I-1875. Case C-407/98, Abrahamsson v Fogelqvist (ECJ 6 July 2000), ECR I-5539. 18 Article 157(4) was inserted into the TFEU via the Treaty of Amsterdam to affirm that ‘the principle of equal treatment shall not prevent any Member State from maintaining or adopting measures providing for specific advantages’ to enable members of an underrepresented sex ‘to pursue a vocational activity or to prevent or compensate for disadvantages in professional careers’. 19 See in general McCrudden (2019). 20 See in general Ellis and Watson (2013). 21 Similarly, non-discrimination on the basis of sex was stated to form an element of the wider right to non-discrimination by Article 21 of the EU Charter of Fundamental Rights, while Article 23 of the EU Charter affirmed the particular importance of the right to equal treatment as between men and women. 17

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CJEU, is thus well-established and broadly accepted—as evidenced for example by the lack of controversy that followed the extension of EU sex discrimination legislation to cover access to goods and services, education and other associated areas in Directive 2004/113/EC.

3 The CJEU Approach to the ‘Post-2000 Grounds’ However, things are not so clear-cut when it comes to other areas of EU equality law. This is particularly the case when it comes to the additional non-discrimination grounds that were brought within EU competency by Article 13 TEU (now Article 19 TFEU), inserted by the Treaty of Amsterdam in 1999—age, disability, race and ethnicity, religion or belief, and sexual orientation. This extension of EU competency provided the legal basis for the Race Equality Directive 2000/43/EC and the Framework Equality Directive 2000/78/EC. It thus marked a significant step forward in terms of political and legal integration, and greatly enlarged the scope of EU equality law.22 However, it also ensured that EU equality law would have to enter into more different and demanding terrain than it ever did when its scope was confined to gender equality.

3.1

The ‘Carry Over’ of the Gender Equality Approach to the Post-2000 Grounds

This was not initially obvious when this enlargement of EU competency took place. Many member states had introduced laws prohibiting race discrimination before the 2000 Directives were drafted, with some also regulating the other ‘new’ grounds of age, disability, religion or belief and sexual orientation. However, the scope and substance of these laws were often uncertain—while some member states had little or no relevant legal norms in place. The Article 14 jurisprudence of the ECHR was more developed in 2000 than it was in the mid-1970s, but not by much. UN human rights standards had also become more developed, with the Convention on the Elimination on Racial Discrimination (CERD) having been adopted as early as 1969: however, once again, the relevant standards were highly abstract and lacking in detail. As such, it was natural to expect the CJEU to play the same pace-setting role in respect of these new grounds as it did for equal pay and sex discrimination. Furthermore, when the 2000 Directives were introduced, the movement for European integration was at its high water mark. The introduction of the euro was pending. So too was EU enlargement to include many Central and Eastern European

22

For an overview, see the essays collected in Belavusau and Henrard (2019).

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states. The EU Charter of Fundamental Rights was being drafted at the same time as the Directives. The drafting of the Constitutional Treaty began the year after their adoption. A wide consensus existed that the EU should play a leadership role in promoting human rights, and that deeper integration should be based upon a firm foundation of respect for equality and human dignity. The participation of Jörg Haider’s Freiheitliche Partei in the newly formed Austrian coalition government of February 2000 was viewed as a threat to that consensus: this lend momentum to the political push to adopt the 2000 Directives, as a way of reaffirming and advancing the collective commitment of the EU states to non-discrimination values.23 It therefore appeared that the CJEU in interpreting and applying the 2000 Directives would benefit from the same favourable political and legal environment in which its gender equality case-law had evolved. As a result, when the 2000 Directives were adopted, there was a general expectation that the CJEU would carry over its gender equality approach to the new grounds of discrimination—and play a similar judicialised, top-down integrative approach to these grounds as it had done in the context of equal pay and sex discrimination. It was therefore not surprising that the CJEU initially adopted a similar purposive interpretative approach to the new Directives as it had done to the Equal Pay and Equal Treatment Directives. In its initial judgments relating to age, disability, race and sexual orientation discrimination respectively, the Court emphasised the importance of effective protection against discrimination, and interpreted the text of the Directives accordingly—just as it did in in gender equality cases.24 Furthermore, the Court repeatedly cited its equal pay and sex discrimination jurisprudence as relevant precedent. For example, in Maruko,25 the Court concluded that less favourable treatment of a category of persons whose membership was wholly comprised of persons of a particular sexual orientation—in this case, long-term same-sex partnerships—would constitute direct discrimination, citing the similar approach it had applied in the Dekker judgment26 to less favourable treatment of pregnant women. In Mangold,27 its first judgment concerning the 2000 Directives, the CJEU also followed its gender equality approach in concluding that the prohibition on age discrimination constituted an aspect of a general principle of EU law, namely the principle of equal treatment—and that the operative provisions of Directive 2000/78/ EC relating to age discrimination merely gave expression to this pre-existing general

23

See in general Bell (2002). O’Cinneide (2012). 25 Case C-267/06, Tadao Maruko v Versorgungsanstalt der deutschen Bühnen (ECJ 1 April 2008), ECR I-1757. 26 Case C-177/88, Dekker v Stichting Vormingscentrum voor Jong Volwassenen (VJV-Centrum) Plus (ECJ 8 November 1990), ECR I-03941. 27 Case C-144/04, Mangold v Helm (ECJ 22 November 2005), ECR I-9981. 24

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principle.28 Furthermore, just as the Court had concluded in Defrenne that this general principle should be given direct horizontal effect as between private parties by virtue of the provisions of what is now Art 157 TFEU, the Court similarly concluded in Mangold that the principle of equal treatment as it applied to the new ‘2000 grounds’ should also be given direct horizontal effect.29 The Court in Mangold thus made it clear that the various non-discrimination grounds protected under EU law could be regarded as specific expression of the principle of equal treatment, and were sufficiently fundamental within the scheme of EU law to have direct horizontal effect—an exceptional status, established first for gender equality in Defrenne and then applied to the 2000 grounds in Mangold and subsequent cases.30 The Court’s insistence on this point was striking. In Defrenne, the then Article 119 of the Treaty of Rome had provided a treaty basis for giving direct horizontal effect to the equal pay principle. However, in Mangold, the CJEU did not cite any equivalent treaty basis for its judgment. Instead, the Court seemed to regard it as axiomatic that age discrimination, and implicitly the other new grounds, were specific expressions of the same general principle of equal treatment that underpinned EU gender equality law—and thus should be treated as having equivalent legal status. This graphically illustrated the Court’s assumption that its gender equality case-law should be read across to the new grounds, and serve as a template for their development.31 Given these initial judgments, it is not surprising the CJEU’s interpretative approach to the new Article 19 grounds has largely adhered to the gender equality playbook. It has consistently given a purposive interpretation to the text of the 2000 Directives, while adopting a narrow reading of exceptions to the general prohibition on direct and indirect discrimination on the basis that they constitute an exception to the equal treatment principle.32 The Court has also given the positive action requirements of the 2000 Directives a restrictive interpretation, in line with its sex discrimination case-law.33 Furthermore, the CJEU has repeatedly emphasised that it adopts an autonomous approach to the interpretation of the 2000 Directives and the general principle of equal treatment, as well as its role as the authoritative interpreter of EU law. Its caselaw in respect of the 2000 Directives primarily makes reference to EU legal norms.

28

Ibid. [75]–[76]. The Court had adopted a similar approach in relation to gender equality, recognising (as already noted) as far back as Defrenne that equal treatment between men and women constituted a general principle of EU law. 29 Ibid. [77]. 30 See e.g. Case C-555/07, Kücükdeveci v Swedex GmbH & Co KG, (ECJ 19 January 2010), ECR I-365. 31 Subsequently, in its later judgment in Kücükdevici, the Court concluded that this general principle was linked to the non-discrimination provisions of Article 21 of the EU Charter, thus giving the equal treatment principle a more tangible textual basis within the framework of the EU treaties. 32 See e.g. Case C-416/13, Mario Vital Pérez v Ayuntamiento de Oviedo, (ECJ 13 November 2014); and also O’Cinneide (2012). 33 See e.g. Case C-193/17, Cresco Investigation GmbH v Markus Achatzi, (ECJ 22 January 2019).

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In contrast, national legal standards are seldom if ever referred to—and references to other regional or international norms remain relatively rare. In other words, the CJEU has generally replicated its gender equality approach when interpreting the requirements of EU law as they relate to the new Article 19 grounds—as was anticipated. Indeed, much of its jurisprudence relating to these grounds is marked by a high degree of consistency with its equal pay and sex discrimination case-law.34

3.2

Departures from the Gender Equality Template

However, there are aspects of this jurisprudence where interesting variations in approach have developed. These variations have not always been expressly signalled by the Court. But a close analysis of the case-law shows that the Court has departed at times from the gender equality template. This deviation has been particularly pronounced when it comes to the application of the Court’s well-established test for determining the existence of indirect discrimination. The CJEU’s gender equality jurisprudence has established that the application of a formally neutral criterion that subjects individuals or groups of a particular sex to a particular disadvantage will constitute prohibited indirect discrimination, unless the use of the criterion in question can be shown to be objectively justified. In the equal pay and sex discrimination contexts, the Court has repeatedly emphasised that the objective justification test will generally be applied in a strict manner: employers and service providers are usually required to demonstrate that clear and compelling reasons exist as to why it is necessary to apply the challenged criterion.35 Furthermore, in its gender equality case-law, the CJEU has not required that the challenged criterion be linked in some way to gender: the requirement to show objective justification is triggered if the application of the criterion in question generates disparate impact between men and women.36 However, both these wellestablished elements of the CJEU’s indirect sex discrimination case-law have at times been applied differently when it comes to certain of the other non-discrimination grounds. To start with, the rigour of the objective justification test as applied in the gender equality context has been diluted in several significant cases relating to the age and religion/belief grounds. In Mangold, the Court applied the test in its full rigour. However, this approach was not followed in subsequent cases relating to mandatory retirement ages. Thus, in Rosenbaldt,37 the Court gave employers wide leeway in fixing retirement ages: in essence, it exempted them from the need to show a clear rationale as to why mandatory retirement at a particular age was required in the

34

O’Cinneide (2012). See e.g. Case C-109/88, Danfoss, (ECJ 17 October 1989), ECR 3199. 36 See e.g. Case C-170/84, Bilka-Kaufhaus GmbH v Weber von Hartz (ECJ 13 Mai 1986), ECR 1607. 37 Case C-45/09, Rosenbladt, (ECJ 12 October 2010), ECR I-09391. 35

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particular employment context at issue. Similarly, in the ‘headscarf’ case of Achbita,38 the CJEU indicated that employers would enjoy wide leeway if they wished to maintain a ‘secular workplace’ policy. The Court did not indicate that employers had to demonstrate the existence of any particular justification to adopt such a policy, and even cited the right to engage freely in business activity, as protected by Article 16 of the EU Charter of Fundamental Rights, in support of its argumentation on this point.39 In both these cases, the Court has arguably relaxed its approach to objective justification as developed in the gender equality context. In Rosenbladt, the need for the measures adopted by the employer was not subject to close scrutiny, which by extension dilutes the rigour of the test. In Achbita, the CJEU’s approach suggests that the CJEU is prepared to closely scrutinise how employers apply a policy prohibiting the wearing of religious symbols—but not the initial decision to have such a policy in the first place.40 This opens the way for private employers to adopt such policies without having any particular justification for so doing, and thus to exclude various categories of religiously observant workers from employment, without their reasoning in this regard being subject to EU equality law controls. The Court has also has also deviated from its position in its gender equality caselaw that the challenged criterion need not be linked in some way to a protected ground as long as it generates disparate impact. Thus, for example, in the age discrimination case of Vindel v Ministerio de Justicia,41 the CJEU concluded that differences in treatment based on length of service could not form the basis of an indirect age discrimination claim, as length of service was a meaningful criterion which was not intrinsically bound up with chronological age.42 It reached a similar conclusion in the race discrimination case of Jyske Finans, where the Court concluded that differential treatment based on a person’s birth country could not form the basis of a race discrimination: again, the Court reasoned that there was no necessary relationship between a birth country and being of a particular race or ethnicity. In these cases, the Court effectively concluded that the existence of a correlation between the criterion in question and a protected ground was not enough by itself to generate an arguable discrimination claim. (A statistical correlation generally exists between length of service and being older. Similarly, a statistical correlation generally exists between country of birth and being a member of an ethnic group associated with that country.) However, it stands in interesting contrast

38

Case C-157/15, Samira Achbita and Centrum voor gelijkheid van kansen en voor racismebestrijding v G4S Secure Solutions NV, (ECJ 14 March 2017). 39 Ibid. [38]. 40 Howard (2017), pp. 348–366. 41 Case C-49/18, Carlos Escribano Vindel v Ministerio de Justicia (ECJ 7 February 2019) (a challenge to judicial salary cuts which varied according to length of service). 42 See also Case C-154/18, Tomás Horgan and Claire Keegan v Minister for Education, (ECJ 14 February 2019) (a challenge to Irish scheme introducing lower salary scales for new entrants to the profession of teacher, while leaving unaltered the pay of those teachers already in employment).

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to gender equality cases like Cadman, where the Court was willing to recognise that differential treatment based on length of service could generate disparate impact between the sexes and thus a claim for indirect sex discrimination.43 Indeed, cases such as Vindel and Jyske Finans seem to be squarely out of step with the Court’s gender equality jurisprudence in this regard. For now, these departures from the CJEU’s gender equality jurisprudence are limited to a few specific cases. However, they are significant. The potential impact of Achbita has already been discussed. The approach taken in Vindel places significant limits on the reach of the prohibition on indirect age discrimination. Jyske Finans similarly suggests that the reach of race discrimination law is restricted in important ways. However, in these judgments, the Court does not provide any acknowledgment that it has departed from its gender equality case-law. It also does not provide much by way of substantive justification for the new interpretative approach it adopts. This stands in stark contrast to the Court’s usual practice of adhering closely to its gender equality jurisprudence. Indeed, it could be argued that, in these cases, the Court is departing from its standard interpretative approach by stealth. It may be the case that the Court considers that a different approach is warranted on the basis of the particular characteristics of the grounds in question. However, it does not justify the judgments in those terms. As such, the deviation from the Court’s gender equality approach is essentially left unexplained. It remains to be seen whether this deviation will be confined to specific grounds and/or to indirect discrimination analysis. At present, the degree of variation from the Court’s gender equality approach is limited. However, there are external factors at play which have the potential to generate additional divergence in the future—and which are already complicating the reception of the Court’s jurisprudence relating to the post-2000 grounds in member states.

3.3

External Complicating Factors

To start with, not all the post-2000 grounds are ‘virgin soil’, i.e. underdeveloped areas of law where the CJEU has the freedom to build up its jurisprudence in the autonomous manner it did with gender equality. In some member states, national law relating to certain of the post-2000 grounds is quite developed, especially when it comes to issues of race and religious discrimination—which are often regulated by provisions of domestic constitutional law, in a way that reflects their sensitive and often-contested nature. Furthermore, the width of the 2000 Directives means that their application will frequently cut across other well-established areas of domestic law. This expands the potential for conflict between EU law and the law of member

43

Atrey (2018), pp. 625–642.

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states, which by extension also enhances the potential for the CJEU’s case-law to trigger backlash and resistance. Furthermore, regional and international human rights standards relating to the post-2000 grounds are more evolved than was the case when the CJEU began to develop its gender equality case-law in the mid-1970s. For example, the ECHR Article 14 equality jurisprudence has expanded: while key elements remain underdeveloped, its contours are much more developed than was the case when the CJEU was constructing its gender equality case-law. UN instruments like the Convention on the Elimination of Racial Discrimination (CERD) and the UN Convention on the Rights of Persons with Disabilities (CPRD) also set out legal requirements which are directly relevant to the Court’s expanding race and disability discrimination caselaw, respectively. Indeed, as the CPRD is the only international human rights instrument to have been ratified by the EU as an entity (as distinct from its individual member states), the CJEU is required to interpret the text of Directive 2000/78/EC by reference to its requirements. In general, there is more potential for EU law to overlap with established human rights standards than was the case with gender equality.44 By extension, there is also more potential for conflicts—or, at least, differences in emphasis—to emerge between EU law and these other regional/ international standards.45 In addition, the background political context is different now to when the CJEU was developing its gender equality case-law. A wide consensus existed back then about the importance of combating sex discrimination. But the situation is arguably different now. All 27 member states of the contemporary EU are formally committed to combating discrimination on all of the post-2000 grounds. However, not all these grounds are viewed as being of equal importance, or as deserving of the type of rigorous protection afforded to gender equality under EU law. Thus, for example, the CJEU’s first judgment on age discrimination, Mangold, generated controversy because many legal commentators were unconvinced that the Court’s rigorous gender equality approach should be applied to what they saw as the less pressing ground of age. They were also sceptical as to whether the prohibition on age discrimination was sufficiently important to be treated as a directly applicable element of the general principle of equal treatment. This in part explains why Mangold remains one of the more controversial cases decided by the CJEU—despite

44

Note for example that the Preamble to Council Directive 2019/1158/EU on work-life balance for parents and carers and repealing Council Directive 2010/18/EU, OJ L 188/79–93 (2019) refers to the CPRD and the UN Convention on the Rights of the Child in addition to Articles 23 and 33 of the EU Charter. 45 These legal issues are complicated by the existence of the EU Charter of Fundamental Rights—a relatively new element of the EU legal architecture. What role should ‘external’ (i.e. non-EU) human rights standards play in the interpretation of Charter rights and EU primary legislation as they relate to equality and non-discrimination? Should the ECHR jurisprudence be given special status, given that the Article 52(3) of the EU Charter recognises that Convention rights constitute a floor of rights protection?

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the superficial resemble between that judgment and the Court’s conclusions in Defrenne that the equal pay principle should be given direct horizontal effect. Substantial difference of views also exist across the EU in relation to specific issues coming within the scope of the 2000 Directives. For example, attitudes in France and Belgium towards the wearing of religious symbols differ considerably from attitudes in countries like the UK or Ireland. Views also differ on the appropriate leeway that should be given to religious organisations to require employees to confirm to their particular religious ethos, on the status of same-sex partnerships, and on whether the collection of data relating to an individual’s race or ethnicity should be permitted by law. Different views existed as well about how gender equality law should developed—but the differences that relate to the post-2000 Directives are both more fundamental and more multifaceted. The divide over the wearing of religious symbols, for example, reflects different patterns of historical development, contemporary political dynamics and attitudes to religious freedom. This poses challenges for the CJEU in interpreting the 2000 Directives that it did not face when interpreting the EU gender equality directives: the absence of a clear consensus on key points of principle makes the Court’s job of interpreting the relatively abstract provisions of the 2000 Directives more difficult. There also is no hard consensus as to necessity of a comprehensive, integrated EU approach to such issues. As eurosceptic views increase across Europe, and attitudes towards immigration, diversity, multiculturalism and minority rights harden, the role of the CJEU in resolving legal questions related to such issues which fall within the scope of the 2000 Directives is likely to be increasingly controversial. (In other words, the favourable tail-winds that accompanied the development of the Court’s autonomous, top-down, insulated approach to gender equality do not blow so strongly now.) All these issues generate difficult normative questions as to the appropriate role of the CJEU in interpreting the 2000 Directives. Should the CJEU insist on the autonomy of EU law in this area as elsewhere, and adhere to the rigour of its established gender equality approach? Or should it be accommodating of other standards? In particular, should the Court respect the diversity of national approaches to issues such as mandatory retirement or the wearing of religious symbols? If so, how accommodating should the Court be of such alternative approaches—and how much should it take into account external human rights standards such as the requirements of the ECHR?46 In general, should the Court refrain from being too prescriptive in these areas? Or, on the contrary, should the Court continue to interpret the 2000 Directives in line with its established gender equality approach?

46

A special situation exists with regard to the CPRD in this regard, given that it forms part of the EU legal order. But a specific question arises here as to how much specific weight should be given to its provisions in interpreting EU law, as illustrated by cases like Case C-354/13, Fag og Arbejde (acting on behalf of Kaltoft) v Kommunernes Landsforening, (ECJ 18 December 2014) and C-363/ 12, Z, (ECJ 18 March 2014).

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None of these issues are easy to resolve. They pose challenges for the Court that it did not face in developing its gender equality case-law. The assumption prevailing back in 2000 that the Court’s existing approach could be seamlessly carried over to the new grounds now looks too simplistic. Having said that, the Court adheres for the most part (as already discussed) to its established gender equality approach in interpreting the provisions of the 2000 Directives. Furthermore, its jurisprudence has tended to have a similar impact as did the Court’s equal pay and sex discrimination case-law. The CJEU has played a similar pace-setting role in relation to the development of non-discrimination law relating to the post-2000 grounds across Europe as it did in the area of gender equality. Judgments such as Mangold, Maruko and Firma Feryn47 have substantially influenced the approach of national courts across the EU. Furthermore, as happened with gender equality, the CJEU’s case-law has attracted a broadly positive response from academic commentators, NGOs and campaigners. It is regularly invoked by lawyers at national level challenging discriminatory treatment, shapes the approach of many of the national equality bodies established in line with the requirements of Directive 2000/43/EC, and chimes to some extent with the growing social and political mobilisation surrounding issues such as migrant rights, intersectionality and LGBTQ rights—as well as the equality rights generated by the European Court of Human Rights and other regional and international human rights bodies.48 However, there have also been instances of backlash, which arguably exceed anything the Court faced in the long years in which it was developing its equal pay and sex discrimination case-law. The Court’s Mangold judgment was challenged before the German Constitutional Court, on the basis that the CJEU had exceeded its competency in giving direct horizontal effect to the prohibition on age discrimination in the absence of treaty text analogous to Article 157 TFEU.49 More recently, the Danish Supreme Court effectively refused to give effect to the CJEU’s judgment in the age discrimination case of Dansk Industri (which was based on similar reasoning as Mangold),50 on the basis that applying the EU law prohibition on age discrimination in a way that disrupted established provisions of a collective agreement threatened legal certainty and thus was incompatible with rule of law.51 More recently, in a case pending before the German Constitutional Court, the argument is being made that the CJEU’s judgment in Egenberger did not give adequate weight to the right to religious freedom protected under Article 4 of the German Basic Law—and thus should be set aside as exceeded the competency 47

Case C-54/07, Centrum voor Gelijkheid van Kansen en voor Racismebestrijding v Firma Feryn NV (ECJ 10 July 2008), ECR I-5187. 48 See in general Belavusau and Henrard (2019). 49 BVerfG, Beschluss des Zweiten Senats vom 06. Juli 2010 - 2 BvR 2661/06 BVerfGE 126, 286–331. 50 Case C-441/14, Dansk Industri (DI), acting on behalf of Ajos A/S v Estate of Karsten Eigil Rasmussen, (ECJ 19 April 2016). 51 Case C-15/2014, Dansk Industri, acting for Ajos A/S v Estate of A, Judgment of the Danish Supreme Court, 6 December 2016, UfR 2017.824H. See also Holdgaard et al. (2018), pp. 17–54.

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assigned to the CJEU within the German constitutional order.52 The Court’s caselaw on sexual orientation discrimination has also attracted political criticism, as well as legal challenges arguing that it unduly infringes upon the freedom of expression of employers.53 Furthermore, issues are beginning to arise as to the compatibility of the CJEU’s approach to the post-2000 grounds with elements of international human rights law. For example, there have been suggestions that the CJEU’s judgment in Achbita does not align with the ECHR judgment of Eweida v UK.54 The CJEU in Achbita did make a passing reference to Eweida, but did not engage in detail with the Strasbourg Court’s reasoning55—which could be read as suggesting that employer decisionmaking as to whether to adopt a workplace police on religious clothing should be subject to stricter scrutiny than the CJEU indicates in Achbita. All this suggests that the CJEU is entering rockier legal waters with its case-law relating to the post-2000 grounds than it has ever done in relation to gender equality. The conditions that smoothed the way for the development of the Court’s equal pay and sex discrimination case-law are no longer in place. Instead, the Court is developing its interpretative approach in a more contested and populated legal landscape. In this regard, it is interesting to consider again the Court’s shift away from its established gender equality jurisprudence in cases such as Vindel and Jyske Finans. As already noted, the Court did not explicitly analyse or engage with this variation from the established sex discrimination case-law. Given that difficult and challenging questions exist as to the extent to which the CJEU should adhere to its gender equality approach, and whether it might need to ‘dilute’ its stance to reflect the different context surrounding the post-2000 grounds, it is concerning to see potentially significant deviations in approach being decided upon without much in the way of reasoned justification or transparent discussion on the part of the Court.

4 Conclusion: What Should the CJEU Do? It is thus clear that applying the Court’s established approach to gender equality across to all the post-2000 grounds is not an uncomplicated endeavour. The CJEU has largely adhered to its well-established autonomous approach to the development of EU anti-discrimination law, with the key elements of the Court’s gender equality jurisprudence being carried over to the post-2000 grounds.56 However, some signs

52

For an excellent overview of the arguments being raised in this appeal, see Sauer (2019). See ECJ Case C-507/18, Opinion of Advocate General J. Sharpston, 31 October 2019. 54 Howard (2017). 55 Case C-157/15, Achbita, (ECJ 14 March 2017), fn. 39. 56 Case C-414/16 Egenberger v Evangelisches Werk für Diakonie und Entwicklung eV, (ECJ 17 April 2018); see also Case C-68/17 IR v JQ, (ECJ 11 September 2018). 53

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of deviation already exist in the case-law, while external factors threaten to complicate the situation. As such, it is perhaps time to engage a little more with the normative issues underpinning this discussion. Should the CJEU carry across its gender equality approach to the post-2000 grounds, or should it deviate from this approach to reflect the complexity of the latter? All major European and international human rights instruments guarantee the general right to equality and non-discrimination, while listing specific ‘suspect’ forms of discrimination which threaten to undermine that right.57 Sex discrimination is invariably included in these lists along with race and religious discrimination, while judicial interpretation of such ‘equality clauses’ has established that disability discrimination, sexual orientation discrimination and (less frequently) age discrimination should by analogy also be treated as suspect grounds.58 Article 21 of the EU Charter expressly includes all these grounds within its list of suspect forms of discrimination. All these different forms of discrimination undermine human dignity, reinforce individual and group stereotypes, and help to generate social exclusion. As such, strong arguments exist for conceptualising the different elements of EU anti-discrimination legislation as specific expressions of a unifying general principle of equal treatment. By extension, this suggests that a common approach should be adopted to the interpretation of all EU primary and secondary non-discrimination legislation—and the CJEU’s well-developed gender equality jurisprudence is a natural model to adopt in such circumstances. Furthermore, much of the strength and specificity of EU anti-discrimination law is derived from its autonomous development at EU level, driven by the CJEU’s purposive approach to interpretation. The framework of EU gender equality standards is rigorous, and stress-tested. Varying this approach when it comes to the post2000 grounds risks generating incoherence. However, there may be times when some variation may be necessary, to reflect the different logic and dynamics of the post-2000 grounds and the legal and socioeconomic context in which they play out. (This is obviously necessary in the special case of disability.) However, the need for such variation must be openly discussed. There needs in particular to be a transparent debate about any dilution of the protection afforded against discrimination under the post-2000 Directives—unlike what happened for example in Jyske Finans. There is also a need for conceptual openness on the part of the CJEU to the range of different human rights standards in play, in particular the requirements of the ECHR. ‘Hidden’ variations, as appear to have took place in Vindel and Jyske Finans, should be avoided.

57 See e.g. Article 2 of the Universal Declaration of Human Rights; Article 14 of the ECHR; Article 1(a) of ILO Discrimination (Employment and Occupation) Convention 1958 (No. 111); the Preamble of the European Social Charter 1961 and Article E of the revised European Social Charter of 1996. 58 O’Connell (2009), pp. 211–229.

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References Atrey, Shreya. 2018. Race Discrimination in EU Law After Jyske Finans. Common Market Law Review 55 (2): 625–642. Beck, David. 1978. Equal Pay and the Implementation of Article 119 of the Treaty of Rome. The Irish Jurist 13 (1): 112–131. Belavusau, Uladzislau, and Kristin Henrard. 2019. EU Anti-Discrimination Law Beyond Gender. Oxford: Hart Publishing. Bell, Mark. 2002. Anti-Discrimination Law and the European Union. Oxford: Oxford University Press. Chalmers, Damian, and Luis Barroso. 2014. What Van Gend en Loos Stands for. International Journal of Constitutional Law 12 (1): 105–134. Ellis, Evelyn, and Phillipa Watson. 2013. EU Anti-Discrimination Law. Oxford: Oxford University Press. Holdgaard, Rass, Daniella Elkan, and Gustav Krohn Schaldemose. 2018. From Cooperation to Collision: The ECJ’s Ajos Ruling and the Danish Supreme Court’s Refusal to Comply. Common Market Law Review 55 (1): 17–54. Howard, Erica. 2017. Islamic Headscarves and the CJEU: Achbita and Bougnaoui. Maastricht Journal of European and Comparative Law 24 (3): 348–366. McCrudden, Christopher. 2019. Gender-Based Positive Action in Employment in Europe: A Comparative Analysis of Legal and Policy Approaches in the EU and EEA. Luxembourg: Publications Office of the European Union. Mulder, Jule. 2017. EU Non-Discrimination Law in the Courts. Approaches to Sex and Sexualities Discrimination in EU Law. London: Hart-Publishing. O’Cinneide, Colm. 2012. The Evolution and Impact of the Case-Law of the Court of Justice of the European Union on Directives 2000/43/EC and 2000/78/EC. Brussels: Publications Office of the European Union. O’Cinneide, Colm, and Kimberly Liu. 2014. Defining the Limits of Discrimination Law in the UK – Principle and Pragmatism in Tension. International Journal of Discrimination and the Law 14 (4): 239–265. O’Connell, Rory. 2009. Cinderella Comes to the Ball: Art 14 and the Right to Non-Discrimination in the ECHR. Legal Studies 29 (2): 211–229. Sauer, Heiko. 2019. ‘Kirchliche Selbstbestimmung und deutsche Verfassungsidentität: Überlegungen zum Fall “Egenberger”’, Verfassungsblog, 3 May 2019, .

Colm O’Cinneide is Professor of Constitutional and Human Rights Law at University College London (UCL).

Non-Discrimination, the European Court of Justice and the European Court of Human Rights: Who Takes the Lead? Janneke Gerards

Contents 1 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 Indirect Discrimination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.1 The ECJ’s and ECtHR’s Overall Approaches . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.2 Recent Case-Law: Indirect Discrimination Based on Ethnic Origin . . . . . . . . . . . . . . . . . 2.3 Recent Case-Law: Indirect Discrimination Based on Religion in the Workplace . . . 3 Proportionality Review . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.1 The ECJ’s and the ECtHR’s Overall Approaches . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.2 Recent Case-Law on Proportionality Review . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 Discrimination by Assumption and by Association . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.1 Discrimination by Association . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.2 Discrimination by Assumption or Perception . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 Same-Sex Marriage and Partnerships . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.1 Approach of the ECtHR in Discrimination Cases Related to Same-Sex Marriages 5.2 Approach of the ECJ in Discrimination Cases Related to Same-Sex Marriages . . . . 6 Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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Abstract It is often said that the non-discrimination case-law of the European Court of Human Rights (ECtHR) and the European Court of Justice (ECJ) might diverge because of their different backgrounds and ‘raisons d’être’. In addition, it is almost an orthodoxy that the European Court of Human Rights (ECtHR) is ahead of the European Court of Justice (ECJ) in developing fundamental rights doctrines in many fields, except for that of non-discrimination law. The question is, however, if these assumptions are correct. This chapter presents four examples in the field of equality and non-discrimination to show that, indeed, there are divergences that seem to reflect the differences in procedural and legal setting and rationale. It proves to be untrue, however, that the ECJ always takes the lead in developing non-discrimination law. In the past decade, several cases can be seen in which the ECtHR is setting the example J. Gerards (*) Utrecht University, School of Law, Utrecht, The Netherlands e-mail: [email protected] © Springer Nature Switzerland AG 2020 T. Giegerich (ed.), The European Union as Protector and Promoter of Equality, European Union and its Neighbours in a Globalized World 1, https://doi.org/10.1007/978-3-030-43764-0_7

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and the ECJ has (or has not) followed suit. It can be derived from this that alignment and harmonisation of equal treatment and non-discrimination law are needed to avoid that the Member States are confronted with diverging or even conflicting requirements in the future.

1 Introduction Comparative analyses of the fundamental rights case-law of the European Court of Justice (ECJ) and the European Court of Human Rights (ECtHR) are often made.1 Indeed, it seems logical to do so, since the two systems co-exist on the same level and they both have a strong impact on national law.2 This makes it important to know if corresponding and harmonised obligations follow from the systems of the EU and the ECHR, or if there are any differences that national actors should heed. It is certainly to be expected that such differences exist.3 Even though the EU and ECHR systems originally pursue similar goals—such as guaranteeing peaceful co-existence of States and creating an ‘ever closer union’ based on economic co-operation and respect for fundamental rights4—the EU and its predecessors have traditionally endeavoured to achieve these aims by means of economic co-operation,5 whereas the ECHR system strives to guarantee a European minimum level of protection of fundamental rights and rule of law values.6 In this regard, Quinn has famously compared the two Courts as ‘twins separated at birth’,7 whereby, unavoidably, the differences in upbringing have a bearing on how the two Courts approach fundamental rights issues.8

1

See inter alia Julicher et al. (2019), Greer et al. (2018), Imamović (2018), Beijer (2017), Dubout (2017), Groussot et al. (2016), Morano-Foadi and Vickers (2015), Gerards (2015), Koffeman (2015), Haverkort-Speekenbrink (2012), Van de Heyning (2011), Senden (2011), Besson (2008), Gerards (2005), Quinn (2001). 2 Cf. Imamović (2018), pp. 105–106. 3 Imamović (2018), p. 133. It also has been mentioned, however, that in practice, divergences appear to be less frequent than is often supposed; see further De Witte (2011), pp. 24 ff. 4 See further, with references, e.g. Gerards (2015), pp. 47 ff.; Lenaerts (2013), Ellis and Watson (2012), pp. 8–9. 5 On this and on the consequences for protection of fundamental rights, see e.g. Julicher et al. (2019), p. 5; Belavusau and Henrard (2018), p. 1; Imamović (2018), pp. 222 ff.; Greer et al. (2018), pp. 294–295 and 301; Beijer (2017), pp. 165 ff.; Weiß (2017), p. 72; De Búrca (2013a), DouglasScott (2011), p. 675; Poiares Maduro (2007), Morijn (2006), Bell (2002), pp. 6 ff. See also e.g., 2/13 Opinion of the Court (ECJ 18 December 2014), para. 1762. 6 Cf. Gerards (2019), pp. 59 ff.; Imamović (2018), p. 17; Gerards (2015), pp. 48–49. 7 Quinn (2001). 8 Other differences may also contribute to this, such as the differences in procedural setting and the existence or lack of specific legislation detailing fundamental rights issues; on these factors, see

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Not surprisingly, there are many lively scholarly debates on the risks of the parallel development of human rights doctrines by two European Courts and the potential consequences of misunderstandings between the ECJ and the ECtHR.9 Participants in these debates generally seem to agree on three points. One is that there is an unavoidable risk of divergence in the fundamental rights approaches of the two Courts because of the differences in their ‘raisons d’être’.10 Another point of consensus is that the ECtHR is generally ahead of the ECJ in terms of development of fundamental rights doctrine.11 Indeed, the ECtHR has been concentrating on core fundamental rights issues for 60 years and it had already created a strong set of principles and doctrines by the time the ECJ started to develop its own fundamental rights case-law.12 This has allowed the Luxembourg Court to rely on the ECtHR’s doctrines without there being a need to devise many principles of its own.13 Third, scholars generally agree that there is one exception to this rule, which concerns the right to non-discrimination.14 The prohibition of discrimination of Article 14 ECHR has played a marginal role in the ECtHR’s case-law and the ECtHR has produced little principled case-law on equal treatment.15 For the ECJ, by contrast, the prohibition of discrimination has always been one of the most important principles for the e.g. Greer et al. (2018), pp. 296–298; Kuijer (2018), p. 4; Beijer (2017), pp. 141 ff. See also briefly Sect. 6 of this Chapter. 9 E.g. Imamović (2018), Beijer (2017), pp. 169 ff.; Groussot et al. (2016), Lock (2016), Gerards (2015), Krommendijk (2015), De Búrca (2013b), Douglas-Scott (2013). 10 Beijer (2017), pp. 165 ff.; Garben (2017), Gerards (2015), De Búrca (2013b). 11 Beijer (2017), p. 174; Gerards (2015), p. 48; Douglas-Scott (2011), p. 649. It also has been said that the ECJ generally has not shown itself to be very ‘fundamental rights minded’ or has failed to recognise relevant case-law of the ECtHR; see e.g. Beijer (2017), pp. 166 ff., with further references to literature and case-law. 12 Gerards (2017a), pp. 323–324. 13 Where no such guidance was available, the ECJ’s case-law has been typified as ‘creative and eclectic’, yet not very consistent or well-principled; Weiß (2017), p. 84. For the development of fundamental rights in the EU, see generally e.g. Van de Heyning (2011), De Búrca (2011), De Witte (1999), Mancini and Keeling (1994), Coppel and O’Neill (1992), Dauses (1985). For the ECJ’s reliance on the ECtHR’s case-law, see e.g. Senden (2011), pp. 356–358. 14 E.g. Gerards (2013a), Muir (2013), pp. 1236 ff.; Bell (2011); but see Xenidis (2019), who contests this traditional understanding and regards it as a ‘disruptive narrative’. 15 See in more detail Dubout (2017), Gerards (2013a), Cartabia (2011), O’Connell (2009), Arnardóttir (2013), Arnardóttir (2007), Baker (2009), p. 714; Wintemute (2004), Arnardóttir (2003), Small (2003), p. 47. To give some examples: the ECtHR only recognised the notion of substantive inequality in 2000 (Application no. 34369/97, Thlimmenos v Greece, (ECtHR 6 April 2000)); see also Dubout (2017), p. 91 and that of indirect discrimination in 2007 (Application no. 57325/00, D.H. and Others v the Czech Republic (ECtHR 13 November 2007). However, it must also be emphasised that there are a few early and very prominent judgments in which the ECtHR developed the standards of review in Article 14 cases (in particular in the Belgian Linguistics case (Application no. 1474/62 (ECtHR 23 July 1968)), and in Application no. 6833/ 74, Marckx v Belgium (ECtHR 13 June 1979)) in which it developed its ‘very weighty reasons’ test (Application nos. 9214/80, 9473/81 and 9474/81, Abdulaziz, Cabales and Balkandali v the United Kingdom (ECtHR 28 May 1985), para. 77). See further on this e.g. Gerards (2017b), Gerards (2005), pp. 104 ff. It is therefore questionable if this conventional wisdom is fully correct anyway.

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development of its case-law.16 The need to remove nationality-based (economic) inequalities and disparities has led to the development of many important doctrines, such as substantive equality, indirect discrimination and horizontal effect.17 In this particular field, the ECtHR has only followed suit and has often been slow to do so.18 In sum, it seems to be conventional wisdom that there is a risk for divergence of fundamental rights because the ECJ is a market-driven player and the ECtHR is more human rights oriented. In terms of development of human rights doctrines, the ECtHR plays the main role, but this is different for the right to non-discrimination, where the ECJ is regarded as leading.19 The question may be raised, however, to what extent this conventional wisdom (still) reflects reality. Over the past decade, for example, some cracks seem to have appeared in the idea that the ECtHR is the fundamental rights court par excellence. In recent years, the ECJ has been making headway in protecting not only economic fundamental rights, but also privacy rights,20 procedural rights,21 and rights of citizens, refugees and migrants.22, 23 In light of this, it is interesting to evaluate the continuing correctness of the three assumptions mentioned above. Thus far, little research has been done into this for the field of non-discrimination and equal treatment law. What is hardly known, for instance, is if it is still true that

16 See further Xenidis (2019), p. 9; Belavusau and Henrard (2018), p. 6; Schiek (2012), Bell (2011), Gerards (2005), pp. 224 ff.; Bell (2002), pp. 33 ff.; More (1999), p. 522 (speaking of the ‘market unifying role’ of the equality principle). 17 For indirect discrimination, see further Sect. 2. For substantive equality, see e.g. Case 13/63, Italy v Commission (refrigerators) (ECJ 17 July 1963), 165) and, to a certain degree, horizontal effect of the non-discrimination principle (e.g. Case 43/75, Gabrielle Defrenne v Société anonyme belge de navigation aérienne Sabena (ECJ 8 April 1976). See further Dubout (2017), p. 66; Gerards (2005), pp. 231 ff. 18 See the sources mentioned in footnote 15. 19 Cf. Dubout (2017), p. 65. 20 E.g. Case 345/17, Sergejs Buivids v Datu valsts inspekcija (ECJ 14 February 2019); Case C-203/ 15, Tele2 Sverige v Watson (ECJ 21 December 2016); Case C-131/12, Google Spain v Agencia Española de Protección de Datos (ECJ 13 May 2014); Case C-291/12, Schwartz v Stadt Bochum (ECJ 17 October 2013); Case C-293/12, Digital Rights Ireland, (ECJ 8 April 2014), ECLI:EU: C:2014:238. 21 See in particular Case C-402/05, European Commission and Others v Yassin Abdullah Kadi (ECJ 3 September 2008); Case C-584/10, Yassin Abdullah Kadi v Commission (ECJ 18 July 2013). See more recently and also in relation to freedom of expression e.g. T-262/15, Dmitrii Konstantinovich Kiselev v Council of the European Union (GC 15 June 2017). 22 See e.g. Case 661/17, M.A. v International Protection Appeals Tribunal (ECJ 23 January 2019); Case C-673/16, Coman v Inspectoratul General pentru Imigrări (ECJ 5 June 2018); Case C-473/ 16, F v Bevándorlási és Állampolgársági Hivatal (ECJ 25 January 2018); Case C-562/13, Abdida v Centre public d’action sociale d’Ottignies-Louvain-la-Neuve (ECJ 18 December 2014); Case C-199/12 to Case C-201/12, X, Y and Z v Minister voor Immigratie en Asiel (ECJ 7 November 2013); Case C-71/11 and Case C-99/11, Y and Z v Bundesrepublik Deutschland (ECJ 5 September 2012). 23 Greer et al. (2018), p. 301; Beijer (2017), p. 174; Weiß (2015), pp. 70 ff. See more critically, however, Groussot et al. (2016), pp. 13–14.

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non-discrimination is the one exception to the rule that the ECtHR takes the lead in developing human rights doctrines. Moreover, it has scarcely been researched if the non-discrimination case-law of the two Courts shows divergences that can be explained by the differences in the Courts’ raisons d’être. This chapter proposes to fill this gap by comparatively studying the non-discrimination case-law of the ECtHR and the ECJ. It provides a first basis for doing so by exploring recent case-law developments in relation to four topics, discussing two well-embedded equality doctrines (indirect discrimination (discussed in Sect. 2) and the review of proportionality (Sect. 3)); one more recent doctrine (discrimination by assumption and by association, Sect. 4); and a substantive topic (unequal treatment of different-sex and same-sex relationships (Sect. 5)).24 In each section, some general information about the approaches of the two Courts is provided and then a few examples of recent case-law are analysed to test if the conventional wisdom about these approaches still holds water. Section 6 concludes.

2 Indirect Discrimination 2.1

The ECJ’s and ECtHR’s Overall Approaches

The ECJ started developing its doctrine of indirect discrimination at a very early stage.25 One of the main objectives of the European Economic Communities was to remove disparities between the Member States that could hamper free trade and free movement and to create a level playing field for economic actors. After all, a wellfunctioning internal market with free movement of goods, persons, services and capital is unthinkable if national legislation continues to favour national products or employees26; unequal agricultural policies create improper obstacles to free trade27; and unequal payment and unequal working conditions for men and women cause

24 Some other issues, such as positive action, substantive scope of application, intersectional discrimination, segregation, discriminatory violence, harassment, reasonable accommodation, the intensity of review of justifications, burden of proof and horizontal effect, are not addressed for reasons of time and space. On those issues, for the EU, see e.g. the various chapters in Belavusau and Henrard (2018), Ward (2018), Ellis and Watson (2012); for the ECHR, see e.g. Gerards (2018), Gerards (2017b), Mačkić (2017), Gerards (2013a), Danisi (2011). 25 See also above, Sect. 1 and see e.g. Dubout (2017), pp. 94 ff. 26 For that reason, the prohibition of discrimination based on nationality figures prominently in the EU Treaties; see in particular Article 18 TFEU and several of the free movement provisions, such as Articles 36 and 37 TFEU (free movement of goods), Article 45 TFEU (free movement of workers), Article 61 TFEU (free movement of services), and Article 65 TFEU (free movement of capital). In addition, for example, discrimination based on national origin is specifically prohibited in relation to State aid (Article 107 TFEU) and customs duties (Article 200 TFEU). 27 It is therefore expressly prohibited by Article 40 TFEU (former Article 34 (2) TEC. See further e.g. Gerards (2005), pp. 240 ff.; Bell (2002), p. 21.

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unwarranted competitive advantages and social dumping.28 Originally, many such disparities were caused by rather blunt nationality-based discrimination; for example, Member States might openly give advantages to their own, national companies to protect them from outside competition.29 Other disparities were less easy to see, but had similar discriminatory and protectionist effects. If companies in one Member State were used to complying with certain production rules, for instance, it would be easier for them to abide by these rules than for companies based in other Member States, which might be used to different rules. Even if such rules were equally applied to all companies—including one’s own, national companies—, they might have a disproportionality negative impact on companies based in other Member States. The prohibition of indirect discrimination, or the obligation to remove indirect barriers to free movement, was originally devised to remove this type of ‘invisible’ impediments. Having been successfully developed and applied in relation to free movement and other economic doctrines, the doctrine of indirect discrimination entered many other EU policy fields. In particular, it appeared to work well in relation to equal treatment of workers.30 Already in the 1970s, a number of Directives and Regulations were adopted to combat unequal treatment of men and women and nationality-based discrimination in employment and social security, in which the notion of indirect discrimination then could easily been embedded.31 All this offered the ECJ ample opportunity to further develop the doctrine and refine its case-law.32 Over time, the Court has set out detailed standards relating to the types of (statistical) evidence that could be relied on in making a claim of indirect discrimination, the groups and persons which would be the relevant comparators, the level of disparate treatment that ought to be visible in order to accept a case of

28

For that reason, unequal pay of men and women was prohibited already by Article 119 EEC Treaty (now Article 157 TFEU) and the EEC’s original social policy was based on primarily economic considerations connected to reducing competitive disadvantages; see e.g. Dubout (2017), p. 66; Ellis and Watson (2012), p. 23; Bell (2002), pp. 8–9; Barnard (1996), pp. 322–327. 29 Cf. Dubout (2017), p. 66. 30 In fact, the doctrine was used in the employment context first in relation to discrimination based on nationality in relation to free movement of workers; see Case 152/73, Sotigu v Deutsche Bundespost (ECJ 12 February 1974). See Dubout (2017), p. 95; Ellis and Watson (2012), pp. 148 ff.; Gijzen (2006), p. 69; Tobler (2005), pp. 110–115. The ECJ was also quick to understand the relation between free movement of workers and indirect sex-based discrimination; see already Case 96/80, Jenkins v Kingsgate (ECJ 31 March 1981); cf. Gijzen (2006), p. 69. 31 Of particular importance were Regulation (EEC) 1408/71 on the application of social security schemes to employed persons and their families moving within the Community, OJ L 149/2-50 (1971); Directive 76/207/EEC on non-discrimination based on gender in employment, OJ L 39/4042 (1976); and Directive 79/9/EEC on the progressive implementation of the principle of equal treatment for men and women in matters of social security, OJ L 6/24-25 (1979). See also Xenidis (2019), p. 4; Dubout (2017), p. 66; and, for a full account of relevant sources, Ellis and Watson (2012), pp. 13 ff. 32 See e.g. Haverkort-Speekenbrink (2012); Ellis and Watson (2012), p. 151 ff.

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indirect discrimination, the possibilities and requirements for objective and reasonable justification, and so on.33 By contrast, in the case-law of the ECtHR, the doctrine of indirect discrimination did not originally play any role of importance.34 Since Article 14 ECHR contains an open prohibition of discrimination, it was possible to contest all forms of unequal treatment, regardless of their grounds. There was thus no need to ‘translate’ certain forms of unequal treatment to discrimination that was indirectly based on specific grounds such as nationality or gender.35 This changed only when the ECtHR had firmly established one of its own non-discrimination doctrines: the ‘very weighty reasons doctrine’. This doctrine entails that differential treatment based on a priori ‘suspect’ grounds, such as gender, nationality or birth, can only be justified by advancing ‘very weighty reasons’.36 When it became clear that this test meant that such a justification could hardly ever be provided, it became attractive for applicants to show that a relatively ‘neutral’ case of unequal treatment disproportionately affected a group defined by ‘suspect’ characteristics. At first the ECtHR was wary to accept this idea of indirect discrimination and it even plainly rejected it in some of its cases,37 but gradually this started to change.38 The ECtHR’s 2007 landmark judgment in D.H. v. the Czech Republic showed a full acceptance of the doctrine of indirect discrimination.39 Even though there are several judgments in which the ECtHR has applied the doctrine,40 however, the Court has not wholeheartedly embraced the notion of indirect discrimination. In several judgments the ECtHR easily could have found a case of indirect discrimination, and it thereby could have provided stronger protection against societal discrimination, but it chose to rely on the open clause of unequal

33

See further e.g. Haverkort-Speekenbrink (2012); Schiek (2007); Tobler (2005); Gerards (2005). E.g. Möschel (2017); Gerards (2013a). 35 Gerards (2013a). See expressly e.g. Application no. 8777/79, Rasmussen v Denmark (ECtHR 28 November 1984), para. 34. 36 On the application and meaning of the very weighty reasons test, see Gerards (2017b). On the grounds of discrimination, see also e.g. Arnardóttir (2014). 37 See in particular Application nos. 9214/80, 9473/81 and 9474/81, Abdulaziz, Cabales and Balkandali v the United Kingdom (ECtHR 28 May 1985), para. 85. The Court also showed reluctance to accept the notion and the ECJ’s approach in Application no. 24746/94, Hugh Jordan v the United Kingdom (ECtHR 4 May 2001). 38 See in particular Application no. 17209/02, Zarb Adami v Turkey (ECtHR 20 June 2006); Application no. 58641/00, Hoogendijk v the Netherlands (ECtHR 6 January 2005) (dec.). 39 Application no. 57325/00, D.H. and Others v the Czech Republic (ECtHR 13 November 2007). See also e.g. Möschel (2017), p. 124. 40 See for a few examples Application no. 32526/05, Sampanis and Others v Greece (ECtHR 5 June 2008); Application no. 33401/02, Opuz v Turkey (ECtHR 9 June 2009); Application no. 15766/03, Oršuš and Others v Croatia (ECtHR 16 March 2010); Application no. 59608/09, Sampani and Others v Greece (ECtHR 11 December 2012); Application no. 11146/11, Horváth and Kiss v Hungary (ECtHR 29 January 2013); Application no. 7973/10, Lavida and Others v Greece (ECtHR 30 May 2013); Application no. 7186/09, Di Trizio v Switzerland (ECtHR 2 February 2016). 34

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treatment instead.41 In yet other cases, such as cases on domestic violence, the ECtHR has set rather strict standards for the proof of indirect discrimination against women.42 Overall, this shows that the ECtHR’s record in protecting against indirect discrimination is far from strong. It therefore seems correct to assume that in relation to this doctrine, the ECJ really is taking the lead and the ECtHR is, reluctantly, following suit.

2.2

Recent Case-Law: Indirect Discrimination Based on Ethnic Origin

As explained in Sect. 2.1, traditionally, the ECJ’s approach to indirect discrimination is better developed and much more detailed than the ECtHR’s is. Moreover, the ECJ has been more willing to recognise cases of indirect discrimination and it has thereby made it possible to remove many factual differences to the effect of guaranteeing stronger substantive equality. Nevertheless, recent judgments show some examples where it seems that, over the past decade, positions seem to be shifting. This is witnessed in particular by a novel approach the ECJ has taken to ethnicity-based indirect discrimination in Jyske Finans, confirmed more recently in Maniero.43 The dispute in the main proceedings in Jyske Finans concerned the conditions set by a Danish credit institution. In order to process loan applications, it required additional proof of the identity of non-Danish citizens in the form of a copy of a passport or residence permit; it did not require such extra information if the loan was requested by a Danish citizen. The question arose whether these internal procedural rules constituted an indirect discrimination on grounds of ethnic origin within the meaning of EU Directive 2000/43. The ECJ did not accept that it did. It thereby defined as a requirement to establish a case of indirect discrimination based on ethnicity that it must be shown that an individual must have a ‘particular ethnic origin’, as a 41

See e.g. Application no. 66686/09, Manenc v France (ECtHR 21 September 2010) (dec.) (in which the Court did not want to recognise an indirect discrimination based on sexual orientation in a case concerning different rights for spouses and unmarried life partners); Application no. 56328/07, Bah v the United Kingdom (ECtHR 27 September 2011) (in which the Court did not further investigate the applicant’s statement that the case disclosed a structural discrimination in the domestic housing legislation); Application no. 77180/11, Leonov v Russia (ECtHR 10 April 2018) and Application no. 23608/16, Petrov and X. v Russia (ECtHR 23 October 2018) (in which the Court did not want to investigate the applicants’ statement that in Russia, a structural situation of discrimination against men existed in relation to granting residence rights). 42 See e.g. Application no. 55164/08, A. v Croatia (ECtHR 14 October 2010), paras. 100–104; Application no. 41237/14, Talpis v Italy (ECtHR 3 March 2017), para. 145; Application no. 49645/ 14, Balsan v Romania (ECtHR 23 May 2017), paras. 79 and 83. 43 Case C-668/15, Jyske Finans v Ligebehandlingsnævnet (ECJ 6 April 2017); Case C-457/17, Maniero v Studienstiftung des deutschen Volkes e.V. (ECJ 15 November 2018). See further e.g. Atrey (2018); Farkas (2018).

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consequence of which (s)he has been placed at a disadvantage.44 It also stressed that the criterion of a person’s country of birth could not be accepted as making it generally more likely that persons of a ‘given ethnicity’ are particularly affected.45 The ECJ concluded from this that the credit institution’s internal rules did not constitute unequal treatment on grounds of ethnic origin, whether direct or indirect, and therefore it was not precluded by the Directive.46 Interestingly, the ECtHR has adopted a different approach to this particular type of disparate treatment.47 This is particularly obvious from the Biao case, which was decided by the Grand Chamber in 2016—almost a year before Jyske Finans.48 The case concerned a complicated Danish statute for family reunion. Under the Danish Aliens Act, a couple applying for family reunion must not have stronger ties with another country (Ghana in the applicants’ case) than with Denmark. An exemption could be made to this so-called ‘attachment requirement’ if persons had been Danish citizens for at least 28 years, or for non-Danish citizens if they had been born in Denmark and lawfully resided there for at least 28 years (the ‘28-year rule’). According to the applicants, this 28-year rule was discriminatory and therefore violated Articles 8 and 14 ECHR. The ECtHR could have decided this case as one regarding direct discrimination between residents who had been Danish nationals for at least 28 years and those who had not been Danish nationals for 28 years, since the applicability of Article 14 is not limited to certain grounds of discrimination.49 However, the ECtHR chose to embark on a wholly different approach, reasoning that in this case, the 28-year rule inevitably caused an indirect discrimination based on ethnic origin: The Court . . . considers that it can reasonably be assumed that at least the vast majority of . . . Danish expatriates and . . . Danish nationals born and resident in Denmark, who could benefit from the 28-year rule, would usually be of Danish ethnic origin whereas . . . persons acquiring Danish citizenship at a later point in their life, like Mr Biao, who would not benefit from the 28-year rule, would generally be of foreign ethnic origin. It is not to be overlooked that aliens [who were not Danish nationals, who were born and raised in Denmark or who came to Denmark as small children, and who had lawfully resided in Denmark for 28 years], and thus persons of foreign ethnic origin, could also benefit from the 28-year rule, but that does not alter the fact that the 28-year rule had the indirect effect of favouring Danish nationals of Danish ethnic origin, and placing at a disadvantage, or having a disproportionately prejudicial effect on persons who, like the first applicant, acquired Danish nationality later in life and who were of an ethnic origin other than Danish . . . .50

44

Jyske Finans, para. 31. Jyske Finans, para. 33. 46 For criticism of this new approach, see in particular Atrey (2018), section 5; Ward (2018), pp. 48–49. 47 See also e.g. Möschel (2017); Atrey (2018); Schlüter (2016). For a brief comparison, see Farkas (2018), p. 24. 48 Application no. 38590/10, Biao v Denmark (ECtHR 24 May 2016). 49 Biao, para. 98. 50 Biao, paras. 112–113. 45

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This quotation shows that the ECtHR was readily inclined to accept that there is a relationship between one’s national origin and one’s ethnicity.51 There is no obligation to show that a person belongs to a ‘particular ethnicity’, but it suffices that it is shown that persons born in the respondent State are favoured over persons born elsewhere. From the perspective of showing indirect discrimination, national and ethnic origin are thus regarded as identical. Furthermore, the judgment is interesting because the Danish government had offered no statistical information to allow the ECtHR to establish exactly how many persons had benefitted from the 28-year rule and how many of those were Danish nationals of Danish ethnic origin and how many were Danish nationals of other ethnic origin.52 Common sense and logical reasoning proved enough for the ECHR to conclude that Danish citizens of different ethnic origin would profit less from the 28-year rule than Danish citizens of Danish origin would. The ECtHR thus also showed considerable lenience in relation to the proof of an indirectly harmful effect. Finally, the notable consequence of all this was that the ECtHR could apply the ‘very weighty reasons’ test because of the presence of a ‘suspect’ ground in the form of ethnic origin. Since the Danish government did not succeed in presenting a sufficiently strong and convincing set of arguments to underpin the difference in the exemptions to the attachment rule, the ECtHR could find a violation of Article 14 ECHR taken in conjunction with Article 8 ECHR. The lenient approach taken by the ECtHR in this case stands in stark contrast to the approach the ECJ has taken in Jyske Finans and confirmed in Maniero. In those judgments, the ECJ did not accept that direct discrimination based on national origin or nationality almost necessarily amounts to indirect discrimination based on ethnicity, whereas the ECtHR clearly presumed it did. As a result, protection against indirect discrimination based on national or ethnic origin can now be stronger under the ECHR than it is under EU law, simply because it is easier to show that there is a case of indirect discrimination. Moreover, given that the ECtHR handed down its judgment earlier than the ECJ, it is remarkable to see that the ECJ did not refer to the ECtHR’s judgment, nor did it align its own approach visibly to that of the ECtHR. No explanations were given for this, making it difficult to see whether the different rationales and objectives of the EU and ECHR systems are somehow behind this. Nevertheless, even if the ECtHR still lags behind in recognising and applying the notion of indirect discrimination in many other cases, the Biao case shows that at least in some fields, it is now ahead of the ECJ, with diverging approaches as a result.

51 52

Cf. Atrey (2018). Biao, para. 110.

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Recent Case-Law: Indirect Discrimination Based on Religion in the Workplace

Another situation where both the Luxembourg and Strasbourg Courts have been asked to judge on similar cases concerns indirect discrimination based on religion in the workplace.53 The most relevant recent ECJ judgment in this context is that in Achbita/G4S.54 Ms Achbita’s employer, G4S, had introduced an internal set of workplace regulations, according to which ‘employees are prohibited, in the workplace, from wearing any visible signs of their political, philosophical or religious beliefs and/or from engaging in any observance of such beliefs’.55 Ms Achbita had insisted on being allowed to wear an Islamic headscarf, which made G4S decide to dismiss her.56 To Ms Achbita, it was fairly obvious that the dismissal was directly based on the religious nature of her wish to wear a headscarf; in fact, the policy stated as much. In her view, therefore, this should be seen as a case of prohibited direct discrimination. However, the ECJ decided differently. The reason for this was that ‘the rule must . . . be regarded as treating all workers of the undertaking in the same way by requiring them, in a general and undifferentiated way, inter alia, to dress neutrally, which precludes the wearing of [visible] signs [of political, philosophical or religious beliefs]’.57 Put differently, the ECJ held that because everyone was prohibited from wearing religious symbols and no specific religious symbols were singled out, the workplace rule could be considered religiously neutral, even though it prohibited only religious dress compared to non-religious wearing of similar items of clothing (such as a headscarf).58 The result of this approach was that the ECJ did not apply the very strict exemptions of the applicable Directive, but the more lenient and open justification clause for indirect discrimination.59 Comparing this approach to one taken by the ECtHR is difficult, because the Strasbourg Court mostly deals with prohibitions of religious dress and headscarves under the freedom of religion of Article 9 ECHR alone.60 Moreover, because of the 53

See also, however, Loenen and Vickers (2015), who explain that there also may be convergence visible in this field, in particular where both European Courts appear to leave a wide margin of appreciation to national authorities in making choices in relation to regulating religious expressions in the workplace. 54 Case C-157/15, Achbita v G4S (ECJ 14 March 2017). 55 Achbita/G4S, para. 15. 56 Achbita/G4S, para. 16. 57 Achbita/G4S, para. 30. 58 See in more detail Bell (2017), p. 791. 59 For criticism of the indirect discrimination approach taken in Achbita/G4S case, see e.g. Brems (2017); Loenen (2017); Spaventa (2017). The approach was received more favourably by Bell (2017), p. 792. 60 See e.g. Application no. 48420/10, Eweida and Others v the United Kingdom (ECtHR 15 January 2013), para. 92; Application no. 43835/11, S.A.S. v France (ECtHR 1 July 2014); Application no. 64846/11, Ebrahimian v France (ECtHR 26 November 2015); Application no. 3413/09, Lachiri v Belgium (ECtHR 18 September 2019). See also Loenen (2009), p. 325.

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open nature of Article 14 ECHR, the ECtHR does not need to make a strong difference between direct and indirect forms of religion-based discrimination in relation to exemptions and justification. To that extent, the ECJ’s protection under EU Directive 2000/78 could be stronger than that of the ECtHR if it would more readily accept that a discrimination was directly based on religion; after all, the Directive does not allow for as open a justification clause for direct discrimination as Article 14 ECHR does. The Achbita case shows, however, that the ECJ is not always prepared to do so.61 The result of this is that it then applies an open test of justification, which may result in even stronger divergence, as the next section will show.

3 Proportionality Review 3.1

The ECJ’s and the ECtHR’s Overall Approaches

Showing a case of differential treatment is not enough to accept that it constitutes prohibited discrimination. Under EU law, in cases of direct discrimination it is possible to rely on an exemption formulated in one of the EU non-discrimination directives or the TFEU’s free movement provisions. In case of indirect discrimination, the defending party may invoke the rule of reason or the possibility of advancing an objective and reasonable justification. Because of the importance of non-discrimination in the EU system, the ECJ has strictly construed these possibilities for justification, in particular if a Member State is responsible for a difference in treatment.62 For example, the ECJ does not accept purely budgetary or administrative considerations as a justification for differential treatment,63 and it sets high demands on the suitability and necessity of discriminating measures to achieve legitimate general interests.64 A key role is thus played by the means-ends test, that is, the test of the effectiveness and necessity of a (discriminatory) measure to

61

See also Howard (2018), Brems (2017). This is the more interesting because the ECJ has taken a more flexible approach in other cases; see Haverkort-Speekenbrink (2012), p. 52. 62 Loenen and Vickers (2015), p. 170; Haverkort-Speekenbrink (2012), p. 79. The ECJ has been said to be more lenient towards interferences by the EU institutions than by member states or private parties; cf. e.g. Weiß (2017), p. 73. An earlier case-law analysis has shown, however, that the main distinction here is between measures that affect or promote free trade and the internal market (very strict review), or between measures where there is or is not a strong element of discretion involved in decision-making; see Gerards (2011), p. 91 ff. (also showing that in fundamental rights cases, the strictness of review may vary depending on the importance of the fundamental rights element at stake; see 100–101). 63 See e.g. Case C-396/17, Leitner v Landespolizeidirektion Tirol (ECJ 8 May 2019), para. 43; Case C-417/13, Starjakob v ÖBB Personenverkehr AG (ECJ 28 January 2015), para. 36. Further e.g. Gijzen (2006), p. 94; Gerards (2005), p. 276. 64 The ECJ has continued to do so based on the Charter, also in cases unrelated to discrimination; for some examples, see Case C-92/09 and Case C-93/09, Schecke v Land Hessen (ECJ 9 November 2010), para. 78; Case C-291/12, Schwartz v Stadt Bochum (ECJ 17 October 2013), paras. 47–63;

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achieve a legitimate aim of general interest.65 By contrast, the ECJ pays little attention another common element of reasonableness review, which is whether there is a fair balance between the right affected and the interests pursued.66 Even if the ECJ sometimes mentions the requirement, it usually leaves it to the national court to assess whether such a fair balance has been struck in the particular circumstances of the case.67 In cases concerning justifications for indirect discrimination, the balancing requirement generally hardly plays a role.68 The ECtHR takes a similar, but also different approach to assessing justifications for differences in treatment.69 Indeed, the Convention mentions the requirement of ‘necessity in a democratic society’ as the main standard to assess justifications for interferences. In addition to this the ECtHR has always held that ‘the search for a fair balance’ is inherent in the whole of the Convention.70 Although the ECtHR uses a wide variety of different approaches to assess interferences and justifications, balancing review is very prominent in its case-law.71 By contrast, effectiveness and necessity review play a minor role and are only used in cases where such tests can be of help in strengthening the Court’s reasoning.72 In cases on the justification of unequal treatment, the particular importance of the balancing test can be seen in relation to the ‘very weighty reasons’ test. In the application of this test, the relative weight of the public interests advanced by the government to justify a difference in treatment plays a prominent role and often determines the outcome of the Court’s review.73 Case C-293/12 and Case C-594/12, Digital Rights Ireland v Minister for Communications (ECJ 8 April 2014). 65 For this terminology, see Gerards (2013b). A major role traditionally has also been played by these two tests in relation to free movement cases; see e.g. Petursson (2014), p. 137 and, with further references 148 ff. 66 E.g. Greer et al. (2018), p. 317; Petursson (2014), pp. 312–314; see also already Jans (2000). Specifically in relation to equal treatment cases, see Tobler (2005), p. 301 and HaverkortSpeekenbrink (2012), p. 77. 67 This is different in some of the more recent cases on the EU Charter of Fundamental Rights, such as cases concerning data protection or copyrights; see Greer et al. (2018), p. 317; Weiß (2017), p. 75. For some examples, see Case C-345/17, Buivids v Datu valsts inspekcija (ECJ 14 February 2019), para. 64; Case C-201/13, Deckmyn v Vandersteen (ECJ 3 September 2014), para. 27; Case C-468/10, ASNEF v Administración del Estado (ECJ 24 November 2011), para. 43. Even there, however, in preliminary question cases, the final decision is usually left to the national court. 68 Exceptionally, this is different; see in more recent years e.g. Case C-312/17, Surjit Singh Bedi v Bundesrepublik Deutschland (ECJ 19 September 2018), para. 68; Case C-414/16, Egenberger v Evangelisches Werk für Diakonie und Entwicklung e. V. (ECJ 17 April 2018), paras. 52-53; Case C-83/14, CHEZ Razpredelenie Bulgaria AD v Komisia za zashtita ot diskriminatsia (ECJ 16 July 2015), para. 123. 69 See also Weiß (2017), pp. 71–72. 70 Application no. 14038/88, Soering v the United Kingdom (ECtHR 7 July 1989), para. 89. See also Gerards (2019), p. 229; Lavrysen (2018), p. 316; Mowbray (2010). 71 See further Gerards (2019), pp. 229 ff.; for further analyses, see also e.g. Mowbray (2010); Greer (2004). 72 See in particular Gerards (2013b), pp. 467–468. 73 See further Gerards (2017b).

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Recent Case-Law on Proportionality Review

The difference in the standards for reasonableness review in recent years has shown to have an impact on decision-making in cases on discrimination.74 This can be demonstrated by contrasting the ECJ’s judgment Achbita case, discussed above,75 to the judgment of the ECtHR in the Eweida case.76 Both cases concerned a prohibition of visibly wearing religious symbols by a company—respectively British Airways (BA) in the Eweida case and G4S in Achbita—, with the aim of projecting a corporate image of neutrality. The ECtHR found that BA’s policy interfered with the freedom of religion protected by Article 9 of the Convention and the interference called for a justification. In this respect, it held as follows: . . . [T]he Court has reached the conclusion in the present case that a fair balance was not struck. On one side of the scales was Ms Eweida’s desire to manifest her religious belief. . . . [T]his is a fundamental right: because a healthy democratic society needs to tolerate and sustain pluralism and diversity; but also because of the value to an individual who has made religion a central tenet of his or her life to be able to communicate that belief to others. On the other side of the scales was the employer’s wish to project a certain corporate image. The Court considers that, while this aim was undoubtedly legitimate, the domestic courts accorded it too much weight. Ms Eweida’s cross was discreet and cannot have detracted from her professional appearance. There was no evidence that the wearing of other . . . items of religious clothing, such as turbans and hijabs, by other employees, had any negative impact on British Airways’ brand or image. . . .77

The ECtHR thus engaged in open balancing review and applied a test of proportionality in the strict sense.78 In addition, in determining the weight of the right to the freedom of religious expression, the Court referred to the underlying values of the Convention. It mentioned the importance of tolerating pluralism for a democratic society and it pointed to the value of religion for individual autonomy and identity. In light of these values it gave greater weight to the freedom of religion than to the company’s interest to protect its corporate image.79 This approach stands in stark contrast to the ECJ’s reasoning in Achbita.80 As was discussed in the previous section, the ECJ accepted that G4S’s internal regulations constituted a case of indirect discrimination that should be supported by an objective and reasonable justification. The ECJ emphasised that G4S’s aim was to protect its corporate image, which it considered to be an interest covered by the freedom to 74

Cf. also Loenen and Vickers (2015), p. 169. Case C-157/15, Achbita v G4S (ECJ 14 March 2017). See Sect. 2.3. 76 Application no. 48420/10 and others, Eweida and Others v the United Kingdom (ECtHR 15 January 2013). 77 Eweida, para. 94. 78 As mentioned, this is a very common approach; indeed, as Mowbray has remarked (2010), p. 290, the ECtHR even developed its principle of proportionality in the context of the non-discrimination principle. 79 Cf. Brems (2017). 80 Case C-157/15, Achbita v G4S (ECJ 14 March 2017). See also Bell (2017), p. 794. 75

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conduct a business of Article 16 CFR.81 Although the ECJ briefly mentioned the freedom of religion and referred to Article 9 ECHR,82 it did not determine the relative weight of this right, nor did it mention underlying values like democracy, pluralism and individual autonomy. Instead, it defined two readily applicable criteria to assess whether a dress code like that of G4S could be considered a necessary and suitable means to protect the company’s corporate image: Such a policy should be genuinely pursued in a consistent and systematic manner,83 and it should be ascertained that the prohibition of visible wearing of religious dress or signs should be limited to workers who interact with customers.84 The ECJ did not require the national courts to balance the religious interests of an employee against the interest of the employer in projecting a certain corporate image. The ECJ’s approach is very much in line with its tradition of argumentation, as it focusses on effectiveness and necessity review, pays little attention to the weight of the interests concerned and does not include any balancing review. By contrast, the ECtHR’s review concentrated on the weight of the interests concerned and on the fair balance test. Clearly, this difference in approach also resulted in a very different outcome. In addition, the ECJ’s judgment in Achbita/G4S and the ECtHR’s ruling in Eweida seem to reflect their different ‘raisons d’être’. Whereas the ECtHR expressly referred to core Convention values such as democracy and autonomy, and allowed these to play a significant role in its reasoning, the ECJ’s main focus was on the freedom to conduct a business and the protection of the corporate image of the company concerned. Finally, it can be seen that the ECtHR was the first to decide on a case of this type and the ECJ did so only 2 years later. Although the ECJ briefly referred to the Eweida case in its judgment,85 it did not follow the ECtHR’s line of argumentation but took an approach of its own. Hence, these two judgments seem to unsettle much of the conventional wisdom on the respective roles of the two Courts.

4 Discrimination by Assumption and by Association The two topics discussed so far—indirect discrimination and proportionality review—related to classics of non-discrimination doctrine. As a third example, it is interesting to look into a topic that is relatively new to the two European systems: discrimination by assumption (or by perception) and discrimination by association. Being subjected to discrimination by assumption means that a person is discriminated against not so much based on characteristics that that person really possesses, but on traits that are ascribed to the person by someone else. For example, a doorman

81

Achbita/G4S, para. 38. Achbita/G4S, para. 39. 83 Achbita/G4S, para. 40. 84 Achbita/G4S, para. 42. 85 Achbita/G4S, para. 39. 82

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might refuse someone entry to a discotheque because he assumes that person to be of Roma origin, or an employer might give consequence to his assumption that an employee suffers from a chronic disease.86 Discrimination by association may occur if someone suffers a disadvantage, not because (s)he has a specific characteristic him or herself, but (s)he is associated with someone who does have these characteristics. For example, the doorman might refuse a non-Roma person entry to the discotheque because he is accompanied by a person of Roma origin, or an employer might dismiss an employee who is caring for a chronically ill child.87 In recent years, both concepts or doctrines have entered the case-law of the European Courts, making them a good test-case to look for similarities and differences.

4.1

Discrimination by Association

For discrimination by association, the ECJ was the first to accept this concept.88 It did so in the Coleman case, decided in 2008, which concerned a mother who had been dismissed because of her lack of availability and flexibility.89 The mother alleged that her employer should have taken better account of the fact that she was the primary carer of a disabled child. The ECJ reasoned that even if the mother herself was not disabled, the fact remained that it was a disability which constituted the ground for the less favourable treatment.90 If the ECJ would narrowly construct the prohibition of disability, this would deprive the EU Directive of its effectiveness.91 Accordingly, it concluded: Where an employer treats an employee who is not himself disabled less favourably than another employee is, has been or would be treated in a comparable situation, and it is established that the less favourable treatment of that employee is based on the disability of his child, whose care is provided primarily by that employee, such treatment is contrary to the prohibition of direct discrimination . . . .92

More recently, the ECJ applied this concept in relation to discrimination based on ethnicity in CHEZ.93 The plaintiff in the main proceedings had been subjected to discriminatory treatment based on Roma background, even though she was not of Roma origin herself, but only happened to live in a district inhabited mainly by

86

For these examples, see Gerards (2007), p. 163. Gerards (2007), p. 169. 88 See further e.g. Xenidis (2019), p. 16; McCrudden (2016); Connor (2010); Waddington (2009). 89 Case C-303/06, Coleman v Attridge Law (ECJ 17 July 2008). 90 Coleman, para. 50. 91 Coleman, para. 51. 92 Coleman, para. 56. 93 Case C-83/14, CHEZ Razpredelenie Bulgaria AD v Komisia za zashtita ot diskriminatsia (ECJ 16 July 2015). See also e.g. Xenidis (2019), p. 16; Howard (2018), section II.a; Lahuerta (2016), p. 809. 87

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Roma persons. The fact that she was associated with certain suspected behaviour of her Roma neighbours made that the ECJ accepted that this constituted a case of ethnicity-based discrimination. By means of these two judgments, the ECJ took the lead in recognising and shaping the concept of discrimination by association. Notably, commentators have stated that this approach thereby has not been informed by intrinsic fundamental rights considerations as much as by the ECJ’s desire to protect consumer interests and boost participation in the labour market.94 The traditional objectives of the EU thus can be seen to have influenced the recognition of this novel doctrine. The ECtHR has followed the ECJ’s lead in a landmark judgment in the 2016 Guberina case.95 The applicant in this case had bought a house that was easily accessible for him and his young child, who was born with multiple physical and mental disabilities. To help him afford the more expensive house he needed, he applied for a tax exemption that could be provided to persons who needed a different house to solve their housing needs. His request was refused, however, because his original flat, even though hardly suitable for a seriously disabled child, technically complied with all the official requirements. At the ECtHR the father stated that the refusal of the tax exemption constituted prohibited discrimination based on disability. The ECtHR noted that the case concerned a situation in which the applicant did not allege discriminatory treatment related to his own disability but rather that of his child, with whom he lived and for whom he provided care.96 Referring to the objective of the Convention and the nature of the rights which Article 14 seeks to safeguard, it then held that Article 14 of the Convention also covers instances in which an individual is treated less favourably on the basis of another person’s status or protected characteristics.97 Thus, the ECtHR showed itself ready to adopt a doctrine that the ECJ had recognised earlier on, but it based its own doctrine on human rights considerations rather than economic objectives.

4.2

Discrimination by Assumption or Perception

The usual roles of the ECJ and the ECtHR seem to be reversed in relation to the second doctrine discussed here, which is the doctrine of discrimination by assumption or perception. This is a well-accepted and well-embedded concept in the ECtHR’s case-law. In 2005, for example, the ECtHR emphasised in Timishev that for a case of discrimination based on ethnicity to be established, it did not matter if a

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Xenidis (2019), p. 16. Application no. 23682/13, Guberina v Croatia (EctHR 22 March 2016). 96 Guberina, para. 77. 97 Guberina, para. 78. The ECtHR repeated this holding in Application no. 25536/14, Škorjanec v Croatia (ECtHR 28 March 2017), para. 56 and Application no. 65550/13, Belli and ArquierMartinez v Switzerland (ECtHR 11 December 2018), para. 97. 95

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disadvantaged person actually was of a certain ethnicity, or was ‘merely perceived as belonging to that ethnic group’.98 The Court has frequently emphasised this in its case-law, and in fact, it does not appear to matter at all to the ECtHR whether an individual is discriminated against because (s)he really has a certain characteristic, or whether this characteristic is merely ascribed to him or her.99 By contrast, the ECJ does not seem too eager to accept this concept.100 This is shown rather indirectly by the 2014 case of Kaltoft, which concerned the dismissal of an obese employee.101 The ECJ emphasised that the EU did not expressly prohibit discrimination based on obesity, but that a decision based on this ground could possibly amount to discrimination based on disability or chronic illness.102 Such discrimination could be shown if it turned out that the ‘obesity of the worker hindered his full and effective participation in professional life on an equal basis with other workers on account of reduced mobility or the onset, in that person, of medical conditions preventing him from carrying out his work or causing discomfort when carrying out his professional activity’.103 Only if the national court would find that these conditions were actually met could the prohibition of discrimination apply. Importantly, the ECJ did not mention the possibility that Kaltoft’s ability to fully and effectively participate was not in fact hindered by his obesity, but the employer assumed that it had an impact on his well-functioning and dismissed him essentially for that reason.104 Had the ECJ accepted the notion of discrimination based on assumption in this case, it could have provided for stronger protection.105 Hence, in relation to discrimination by association and by assumption, the caselaw in recent years shows a mixed picture. Sometimes the ECJ takes the lead, sometimes it is the ECtHR that does so. Moreover, while some convergence can be seen in relation to discrimination by association—albeit informed by different rationales—there is a risk of divergence in relation to discrimination by assumption.

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Application no. 55762/00 and 55974/00, Timishev v Russia (ECtHR 13 December 2005), para. 54. 99 See e.g. Application no. 25536/14, Škorjanec v Croatia (ECtHR 28 March 2017), para. 56. 100 Although Lahuerta has argued that the CHEZ case, discussed above, could be seen as an example of discrimination by assumption (and thereby a recognition of that concept); Lahuerta (2016), pp. 810–811. As mentioned above, however, the situation can perhaps better by regarded as an example of discrimination by association with the Roma-population. 101 Case C-354/13, FOA v KL (ECJ 18 December 2014). 102 Kaltoft, paras. 33–40 and 51. 103 Kaltoft, para. 60. 104 Cf. L. Waddington in her case-note to the Kaltoft case, European Human Rights Cases 2015/66, paras. 11–14. 105 As Lahuerta has argued, however, the ECJ may also implicitly recognise the concept; in her view, the ECJ did so in the CHEZ case discussed above; see Lahuerta (2016), pp. 810–811.

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5 Same-Sex Marriage and Partnerships Finally, to explain the likelihood of divergence between the EU and ECHR systems, it is useful to discuss the case-law of the two Courts relating to same-sex marriage and equivalent legal regimes. For both Courts this is a thorny issue, since the views regarding same-sex partnerships differ between and within the Member States. Some States have opened-up the institute of marriage to same-sex partners in the 1990s (although legal consequences may still be different for same-sex partners), while others still plainly reject this or—at the most—provide for legal regimes that offer equivalent benefits and legal rights as are connected to marriage. As a consequence, harmonisation in this field has seemed to be almost impossible, and both the ECJ and the ECtHR have tended to show restraint out of respect for national choices and traditions.106 The question remains, however, how this has influenced their case-law on non-discrimination.

5.1

Approach of the ECtHR in Discrimination Cases Related to Same-Sex Marriages

The ECtHR has always held that the ECHR cannot be read as including a right to marriage for same-sex partners.107 Moreover, it has taken quite some time for it to accept that unmarried partners should be treated the same as married partners. In recent years, however, the ECtHR has come to understand that differential treatment might be problematic for same-sex partners.108 The ECtHR has therefore gradually accepted that same-sex partnerships are to be treated in the same way as different-sex partnerships, even if they are governed by different legal regimes.109 The ECtHR made this particularly clear in its 2016 judgment in Taddeucci and McCall v. Italy, which concerned an application for a residence permit for family reasons by an

106 Danisi (2017), p. 198; Koffeman (2015), p. 608; Wintemute (2015), p. 193; Van der Sloot (2014), pp. 402 ff. 107 See in particular Application no. 30141/04, Schalk and Kopf v Austria (ECtHR 24 June 2010), paras. 54–64; confirmed in e.g. Application no. 18766/11 and 36030/11, Oliari and Others v Italy (ECtHR 21 July 2015), paras. 189–194 and Application no. 40183/07, Chapin and Charpentier v France (ECtHR 9 June 2016), paras. 48–52. See further e.g. Dondoli (2018), p. 7; Danisi (2017), p. 203; Koffeman (2015), p. 351. 108 See in particular Application no. 18766/11 and 36030/11, Oliari and Others v Italy (ECtHR 21 July 2015), where the ECtHR held that Italy had not met its obligations under the Convention by not providing for any sound framework to recognize and protect same-sex unions (paras. 165–185). See also e.g. Dondoli (2018), p. 7 and, in detail, Koffeman (2015), pp. 365 ff. 109 See e.g. Application no. 19010/07, X. and Others v Austria (ECtHR 19 February 2013); Application no. 29381/09 and 32684/09, Vallianatos and Others v Greece (ECtHR 7 November 2013); Application no. 68453/13, Pajić v Croatia (ECtHR 23 February 2016). See critically on the pace of these developments Danisi (2017), p. 212.

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Italian-New Zealand same-sex couple.110 In Italy, only spouses were eligible for such a residence permit and marriage was not open to same-sex partners, whereas there was no other legal regime (such as a civil partnership) available which could offer similar legal benefits.111 Noting that there was a significant trend towards recognising the right of same-sex partners to live together112 and the restrictive Italian regime did not duly take account of the personal situation of the applicants,113 the ECtHR found a breach of the right not to be discriminated against on grounds of sexual orientation.114 It more forcefully confirmed this in Orlandi v. Italy, where the applicants were two same-sex couples who had been legally married in another country—Canada and the Netherlands—and had then asked for recognition of their marriages in Italy.115 The Italian authorities refused to do so because of the special status it gave to marriage and because of its traditional stance that marriage should be reserved for different-sex partners. The applicants considered the situation discriminatory and the Court agreed, holding that ‘the Government did not put forward a prevailing community interest against which to balance the applicants’ momentous interests’, which it considered to be related to facets of an individual’s existence and identity.116 This case-law shows that the ECtHR has increasingly actively strived for equal treatment of same-sex partners, based on considerations related to European consensus as well as values of individual identity, autonomy and equal dignity.117

5.2

Approach of the ECJ in Discrimination Cases Related to Same-Sex Marriages

The ECJ has gone through a rather similar gradual development as the ECtHR has, although its pace seems to be slightly slower than that of the ECtHR and the underlying values are more strongly related to free movement of persons.118 The ECJ initially showed reluctance to engage in these thorny issues, as is witnessed by 110 Application no. 51362/09, Taddeucci and McCall v Italy (ECtHR 30 June 2016). See further Dondoli (2018), p. 13 ff. 111 Taddeucci and McCall, para. 83. 112 Taddeucci and McCall, para. 97. 113 Taddeucci and McCall, para. 96. 114 Taddeucci and McCall, para. 98. 115 Application no. 26431/12 and others, Orlandi and Others v Italy (ECtHR 14 December 2017). 116 Orlandi, para. 199. 117 See also Dondoli (2018). The ECtHR has been criticised, however, for taking an approach that does not sufficiently identify the real ground of discrimination, that does not sufficiently acknowledge the possibilities of indirect discrimination based on sexual orientation, and that is too much focussed on the views and opinions prevalent in the European States; see Danisi (2017), pp. 214 ff. 118 Bell (2002), p. 97. In more detail, see Koffeman (2015), pp. 411 ff.; Tobler (2015), Wintemute (2015), pp. 179 ff.

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its judgment in the Maruko case of 2008.119 In that case the question was raised if the non-discrimination principle implied that similar survivor’s benefits should follow from a ‘life partnership’ between same-sex partners as were given to married spouses of different sex. The ECJ emphasised that Germany had specifically reserved the institute of marriage to different-sex partners, but had created a separate legal regime for those who were not allowed to marry.120 Such life partnerships were gradually made equivalent to marriage in terms of legal entitlements.121 The ECJ also noted that life partners were still treated less favourably than spouses as regards their entitlement to a survivor’s benefit.122 The ECJ could have concluded that this constituted direct discrimination based on sexual orientation, but it left it to the national court to assess whether surviving spouses and surviving life partners were really in a comparable situation.123 If they were, the legislation would constitute prohibited direct discrimination, but if not, no similar entitlements needed to be provided.124 Hence, the ECJ offered little in terms of a principled decision on whether the non-discrimination principle implied that same-sex partners should have the same legal rights as different-sex partners did. Gradually, however, this has changed.125 In Hay, decided in 2013, the ECJ showed itself willing to decide on the comparability of the situations of different partnerships and it found a case of direct discrimination of same-sex and differentsex partners.126 In 2018, moreover, the ECJ handed down an important judgment in the Coman case.127 The case concerned an issue that was directly related to the right to marry for same-sex partners and that was—to a certain degree—similar to the situation the ECtHR was confronted with in Taddeucci and McCall. A RomanianAmerican same-sex couple used to work in Brussels and had lawfully married there, but when they wanted to move to Romania, they were told that their marriage could not be recognised. The questions presented to the ECJ focussed on the fact that, consequently, same-sex spouses could not exercise their residence rights in the same way as different-sex spouses could. The ECJ started its reasoning by emphasising that marriage is a matter that falls within the competence of the Member States and the Member States are free to decide whether they want to allow marriage for persons of the same sex.128 It then referred to the importance of the free movement 119

Case 267/06, Maruko v Versorgungsanstalt der deutschen Bühnen (ECJ 1 April 2008). Maruko, para. 67. 121 Maruko, paras. 67–69. 122 Maruko, para. 71. 123 Maruko, para. 72. 124 Maruko, para. 72. 125 The ECJ repeated the main part of its analysis in Maruko in the subsequent Römer case, Case C-147/08, Römer v Freie und Hansestadt Hamburg (ECJ 10 May 2011), but there, it provided a few more clues as to the comparability assessment to be made by the national court—see in particular paras. 45–52 and see Wintemute (2015), p. 186. 126 Case C-267/12, Hay v Crédit agricole mutuel de Charente-Maritime et des Deux-Sèvres (ECJ 12 December 2013), paras. 34–43; see also Danisi (2017), p. 213; Koffeman (2015), p. 423. 127 Case C-673/16, Coman v Inspectoratul General pentru Imigrări (ECJ 5 June 2018). 128 Coman, para. 37. 120

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principle and the value of EU citizenship to reason that similar rights should be given to all EU citizens throughout the EU. It held that a Member State cannot rely on its domestic law or national constitutional identity as justification for refusing to recognise a same-sex marriage concluded in a different Member State.129 In cases where free movement of persons is at stake, the ECJ thus showed itself willing to protect against this particular type of discrimination in much the same way as the ECtHR.130 It can be derived from this case-law that in this particular field, the ECtHR seems to have taken the lead and the ECtHR has followed suit.131 Both Courts now hold that there is no right to marry for same-sex partners, but that same-sex marriages concluded abroad should be legally recognised in other States. This also shows considerable convergence in this field, even if the effected legal changes are motivated in different ways: In the ECtHR’s judgment, considerations relating to European consensus and the personal situation of the applicants play an express and important role, whereas the ECJ’s Coman judgment is primarily based on considerations of free movement and citizenship.132

6 Conclusion The main aim of this contribution was to compare the non-discrimination case-law of the ECtHR and the ECJ to see whether there is still some truth to the conventional wisdom that the ECJ’s approach is more protective and advanced than that of the ECtHR in non-discrimination cases, and that there is a risk of divergence between the Courts’ case-law because of their different rationales. It must be emphasised that it is difficult to make such a comparison, if only because of the many procedural differences between the systems.133 For example, whilst it is easy and even essential for the ECtHR to give a final view on the proportionality of a certain national measure, the nature of the preliminary reference procedure invites the ECJ to leave this kind of assessment to be made on the national level. In addition to this, it can be remarked that the two Courts have not always been able to decide on similar cases. For instance, the ECtHR has had hardly any opportunity to pronounce itself on positive action, simply because it is rarely presented with employment-related matters. Similarly, whilst the ECtHR by now has developed an important line of

129

Coman, paras. 36 and 43–46. See e.g. Tryfonidou (2018), Beury (2018). Both also comment on whether the judgment really is far-reaching, or perhaps still rather narrow in its scope; see also Sumner (2018). 131 Or, as Wintemute has put it, the ECtHR has shown more ‘bravery’ than the ECJ has done; Wintemute (2015), p. 192. 132 See further Wintemute (2015), p. 192. 133 Cf. Greer et al. (2018), pp. 296–298; Beijer (2017), p. 145 ff.; Dubout (2017), pp. 69–71; Wintemute (2015), p. 192. 130

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case-law regarding discriminatory violence and segregation, these are topics that are not likely to be raised before the ECJ. And finally, it is obvious that the equality provisions the two Courts deal with are different in nature. The ECtHR is guided only by the open-ended provision of Article 14 ECHR,134 whereas the ECJ has to base its judgments on a range of concrete TFEU and Charter provisions as well as on detailed clauses of the secondary legislation on equal treatment and non-discrimination.135 Such differences might explain at least part of the differences in the case-law between the two Courts. Allowing for such limitations, and regardless of the rather narrow sample of cases presented in this Chapter, it is still possible to formulate some conclusions. One can be that the ECtHR generally has caught up with the ECJ in developing the principle of non-discrimination in its case-law. Although there are still many doctrinal defects and uncertainties, and certain lines of case-law stand ready to be criticised, cases like Biao show that the ECtHR is willing to use the doctrine of indirect discrimination as a tool to challenge indirect forms of discrimination. Moreover, ECtHR judgments like Timishev and Guberina help fight against discriminatory decisions based on stereotyped views and unwarranted perceptions, whereas the ECJ has not (yet) expressly embraced a doctrine of discrimination by assumption. In addition, regardless of its long-standing tradition in protecting against discrimination and recognising new concepts, it seems that the ECJ in recent years has lost some of its initial willingness to take the lead. The judgments on indirect discrimination in Jyske Finans and Maniero are telling examples of this, just like the judgment in Achbita. It can be derived from this that it is no longer self-evident that the ECJ leads the way in recognising new obligations following from the non-discrimination principle. Sometimes this is still the case, for instance in relation to the recognition of discrimination by association. However, in relation to cases on same-sex marriages, it seems that the ECtHR has paved the way and the ECJ then chose to align its approach to that of the Strasbourg Court. In cases concerning discrimination by assumption and the right to freedom of religion, moreover, it even seems that the ECtHR offers stronger protection than the ECJ does, without the ECJ being inclined to adopt the same approach in its own case-law. In addition to this, the case-law discloses significant divergence between the two systems in relation to non-discrimination cases. Surely, there are some signs of convergence and harmonisation. The ECtHR has embraced protection of a neutral corporate image as an important interest in Eweida just as much as the ECJ has done in Achbita, and the ECJ has shown in Coman that it strives for protection of equal treatment of same-sex couples just as much as the ECtHR has done in Taddeucci and McCall. Nevertheless, the differences in the upbringing, formative development and environment of the ‘twins, separated at birth’ continue to have their impact. The ECJ’s means-ends review in Achbita, for example, led to a different outcome than

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See Gerards (2013a), p. 104; Edel (2010), p. 86; O’Connell (2009), p. 222. For the situation in EU law, see further e.g. Xenidis (2019), pp. 37 ff.

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the ECtHR’s balancing approach did in Eweida. Similarly, the ECtHR’s indirect discrimination test in Biao brought it to accept applicability of Article 14 ECHR more easily than the strict test of the ECJ in Jyske Finans and Maniero could do. There are signs present in the case-law showing that the different backgrounds and rationales of both systems are behind such differences. Whilst the ECtHR often expressly refers to human rights values such as personal autonomy, human dignity, pluralism and democracy, the ECJ standardly bases its reasoning on principles of economic co-operation, free movement and business freedom. The judgments discussed in this chapter show that such principles and values can have a crucial impact on the Courts’ attitude and argumentative approach, and even on the outcomes of its judgments. Finally, the question may be asked if all this is problematic. Put differently: is there cause for concern because it is sometimes the ECJ that takes the lead in non-discrimination cases and sometimes the ECtHR, that there is divergence on some aspects of equal treatment law, and that the different original rationales of the two systems are still reflected in their case-law?136 It seems that there is, if only because the current situation makes it hard to predict future developments. In addition, it will be difficult for national authorities and private parties to deal with divergences such as those shown in the current chapter, since they may find it hard to choose whose lead to follow and whose objectives to subscribe to. Especially as long as the EU’s accession to the European Convention is not likely to happen, and the different rationales of the two Courts continue to play a role in their case-law, that problem is difficult to solve. The only way forward would be for the two Courts to really join forces and make an effort at arriving at a shared understanding of non-discrimination law and its underlying values. Only then, the EU and the ECtHR could both act as protectors and promoters of equality and arrive at a strong and harmonised understanding of doctrines that can easily be applied on the national level.

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Janneke Gerards is professor of fundamental rights law at Utrecht University (Montaigne Centre for Rule of Law and Administration of Justice); for more information, see www.uu.nl/staff/ jhgerards.

Has the EU Taken Comprehensive and Coherent Action to Combat Discrimination? Sara Benedi Lahuerta

Contents 1 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 Shedding Light Into a Foggy Area: The Concept ‘Coherence’ in EU Anti-Discrimination Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 Where Lies the Lack of Coherence as Regards EU Anti-Discrimination Action? . . . . . . . . 4 Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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Abstract EU anti-discrimination action cannot be expected to be ‘comprehensive’ from a material scope perspective due to the nature of the EU itself and the limits derived from EU primary law (e.g. the closed list of discrimination grounds in Article 19 TFEU). However, EU anti-discrimination action could be more ‘coherent’ than it is now. This contribution builds on external relations’ literature and emergent discussions in EU anti-discrimination law to identify ‘coherence needs’ in EU antidiscrimination action at internal, systemic and external levels. Whilst recognising that divergences in protection for different discrimination grounds may be justified to specifically address diverse forms of disadvantage, various examples of (allegedly unjustified) substantive and procedural incoherence are examined. Despite the difficulties to adopt coherent EU action in this field due to rulemaking constraints in an enlarged Union, the ‘policy integration clauses’ in Articles 7, 8 and 10 TFEU point This paper largely builds on the contributions and findings of the project ‘Rethinking EU Equality Law: Towards a More Coherent and Sustainable Regime’, coordinated by myself and Dr Ania Zbyszewska between 2016 and 2018 (https://rethinkingeuequalitylaw.wordpress.com), and funded by the ESRC (Impact Acceleration Account), the Society of Legal Scholars (SLS), University of Southampton (Centre of Policy, Law and Society) and the University of Warwick (Institute of Advanced Study). I am grateful to the participants of the Jean-Monnet Symposium ‘The European Union as Protector and Promoter of Equality’ for their comments on an earlier version of this paper; the usual disclaimer applies. S. Benedi Lahuerta (*) University College Dublin, Sutherland School of Law, Dublin, Ireland e-mail: [email protected] © Springer Nature Switzerland AG 2020 T. Giegerich (ed.), The European Union as Protector and Promoter of Equality, European Union and its Neighbours in a Globalized World 1, https://doi.org/10.1007/978-3-030-43764-0_8

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towards mainstreaming as a key tool to achieve more coherence across EU action in this area. The article also hints towards various interpretative options to address some of the incoherence examples discussed.

1 Introduction The title of this contribution builds on the initial brief that the editors of this volume gave me for the Jean-Monnet Symposium ‘The European Union as Protector and Promoter of Equality’, organised by the Europa Institut (Saarland University) in March 2019. The Symposium certainly was a good moment to assess EU achievements in this field because two key factors indicate that EU anti-discrimination law could currently be ‘at a pivotal point’.1 On the one hand, more than 20 years have now passed since the adoption of the 2000 Anti-discrimination Directives,2 which ‘marked the birth of EU anti-discrimination law as a field in its own right’.3 On the other hand, the European Pillar of Social Rights,4 that could bring new impetus for advancement in this policy area, was launched in 2017.5 The editors’ brief was, however, very ambitious for a conference paper, or indeed, for a short contribution to an edited book, like this one. For this reason, whilst my starting point for this work is discussing whether ‘the EU has taken comprehensive and coherent action to combat discrimination’, the core of this paper focuses on analysing if the EU has taken coherent action in this field. Let me first justify why I have chosen to focus only on ‘coherent’ action, leaving aside the idea of ‘comprehensive’ action. As it is well known, the EU is a supranational institution, within which the wording of the Treaties is adopted by consensus of all Member States, as the ‘Fathers of the Treaties’. On this basis, according to the principle of conferral,6 the EU legislator can only act within the limits of the powers agreed by unanimity between all Member States, as described in primary law.7 For

1

Benedi Lahuerta and Zbyszewska (2018c), pp. 55–59. Directive 2000/43 implementing the principle of equal treatment between persons irrespective of racial or ethnic origin, OJ L180/22-26 (2000), (‘Race Equality Directive’ or ‘RED’); Directive 2000/78 establishing a general framework for equal treatment in employment and occupation, OJ L3030/16 (2000), (‘Framework Equality Directive’ or ‘FED’). 3 Belavusau and Henrard (2019), p. 2. 4 Communication Establishing a European Pillar of Social Rights, COM (2017) 250 final of April 2017. 5 For a critical assessment of the potential of the Pillar in this area see Benedi Lahuerta and Zbyszewska (2018b), pp. 163–192. 6 I.e. The Union can only enact legislation in the areas where primary law confers explicit powers to the Union (Art. 5(2) TEU). 7 Note, however, that there are some exceptions (see e.g. Case 22/70, European Communities v Council (ERTA) (ECJ 31 March 1971) on the implied external competence of the EU) and that EU 2

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our purposes, the EU legislator key powers to take action against discrimination are described in Article 19 TFEU (which contains a closed list of grounds, i.e. racial or ethnic origin, religion or belief, age, disability, sex and sexual orientation), and other non-discrimination legal basis focusing mainly on combating sex discrimination in the labour market (e.g. Articles 153(1)(i) or 157(3) TFEU). Even though the EU Charter of Fundamental Rights (EUCH) contains an open list of discrimination grounds,8 according to Article 51(2) EUCH, the Charter cannot extend the powers of the EU in this field.9 Consequently, if following the Oxford English Dictionary, we understand the term ‘comprehensive’ as meaning ‘including or dealing with all or nearly all elements or aspects of something’, EU action in this field can hardly be expected to be ‘comprehensive’ from a substantive and material scope perspective. The reason is simple: the Treaties themselves—in particular, Article 19 TFEU— limit the areas where the EU may act, and are thus not supportive of ‘comprehensive’ action in this area. Still, EU anti-discrimination law might be ‘comprehensive’ in other ways. For instance, some authors have argued that European legislation to protect minority population is ‘quite comprehensive’ because it is embedded both in primary and secondary law, and it not only contains substantive definitions, but also sanctions for non-compliant Member States,10 and even its own procedural rules (e.g. provisions on the burden of proof11 and the requirement that ‘sanctions’ to perpetrators are ‘effective, proportionate and dissuasive’).12 However, if we strictly focus on the reach of the material scope of protection, EU anti-discrimination action does not even have the potential to be ‘comprehensive’, due, largely, to the closed list of protected grounds enumerated in the legal base of Article 19 TFEU.13 Having acknowledged the inherent limits of the EU to take ‘comprehensive’ action in this field, in the remainder of this article I shall focus on analysing whether EU anti-discrimination ‘action’ has so far been ‘coherent’. By reference, again, to the Oxford English Dictionary, ‘action’ is ‘the fact or process of doing something, typically to achieve an aim’. Accordingly, for the purposes of this work, ‘action’ is understood as referring to any of the tools that the EU may use to achieve its aims

competence is also influenced by other ‘variables’, such as the case law of the Court of Justice of the EU (CJEU) and institutions’ interpretation of EU Treaties, see further Craig and De Búrca (2015), p. 74. 8 Art. 21 EUCH. 9 Nevertheless, Article 51 EUCH also stipulates that the principles established in the Charter should guide the development of EU policies (and the implementation of these policies by national authorities), which was interpreted in Fransson (Case 617/10, Åklagaren v Åkerberg Fransson (ECJ 7 May 2013)) as meaning ‘application’ of EU law, see further Bernitz (2015), pp. 155, 156–160. 10 See further Fiori-Khayat (2019), pp. 122–137, 123. 11 See e.g. Art. 8 RED. See also a discussion of the CJEU’s case law in this field in Henrard (2019), p. 95. 12 See e.g. Art. 15 RED. 13 Cf. with the open list of discrimination grounds established in Article 14 of the European Convention of Human Rights (ECHR).

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in this field, including both hard and soft law. More specifically, the instruments that this paper considers as ‘EU anti-discrimination action’ are the core ‘EU Antidiscrimination Directives’,14 as well as the new ‘Work-Life Balance Directive’.15 Whilst in the context of the internal market, nationality was the first antidiscrimination ground protected at EU level, it is intentionally excluded from the analysis due to the limited scope of this paper.16 In the discussion about antidiscrimination legislation and its historical evolution the term ‘sex’ (rather than ‘gender’) is used to mirror the terminology which still prevails in the treaties and EU Anti-discrimination Directives.17 The article initially focuses on the meaning of the—rather elusive—term ‘coherence’ from an EU anti-discrimination law perspective (Sect. 2). With reference to relevant academic literature, legislation and case law, Sect. 2 also discusses whether EU anti-discrimination law needs to be coherent. On that basis, Sect. 3 examines several examples of incoherence within EU anti-discrimination action. Section 4 concludes by briefly suggesting various approaches that could be considered to overcome some of the forms of incoherence previously identified.

2 Shedding Light Into a Foggy Area: The Concept ‘Coherence’ in EU Anti-Discrimination Law The idea of ‘coherence’ can be considered a basic criterion of the rule of law; an element necessary in any legal system ‘to make sense as a whole’ and as a precondition of intelligibility.18 Discussion about the ‘coherence’ of EU policies has been present for a long time in EU law literature. For instance, already in 1997,

14 Apart from the RED and the FED, these include Directive 2004/113 implementing the principle of equal treatment between men and women in the access to and supply of goods and services, OJ L 373/37-43 (2004) (gender equality in access to goods and services); Directive 2006/54 on the implementation of the principle of equal opportunities and equal treatment of men and women in matters of employment and occupation (recast OJ L 204/23-36 (2006)); Directive 2010/41 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, OJ L 180/1-6 (2010) (gender equality for the self-employed). 15 Directive 2019/1158 on work-life balance for parents and carers and repealing Council Directive 2010/18/EU, OJ L 188/79-93 (2019), (‘Work-Life Balance Directive’). The proposal for a ‘Horizontal Directive’ (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 of 2 July 2008) is also briefly mentioned although it is still pending. 16 On the potential of the EU Anti-discrimination Directives to combat nationality discrimination and protect minorities, see Benedi Lahuerta (2009), pp. 738–756; De Schutter (2016); Kochenov (2019), p. 119. 17 For a discussion on the differences between ‘sex’ and ‘gender’ see Lembke (2016). 18 Bertea (2005), p. 168.

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Tietje wrote that ‘[t]he notion of coherence is one of the constitutional values of the EU’.19 The term ‘coherence’, however, is sometimes used interchangeably with the term ‘consistency’ and there seems to be no agreement as to whether they mean the same. Whilst the Oxford English Dictionary builds on the former to define the latter as ‘[t]he condition in which matter coheres so as to “stand together” or retain its form’, EU scholars have discrepant opinions as to the precise legal reach of these terms. For instance, Den Hertog and Stroß argue that it is difficult to define specific legal obligations in EU law derived from the concept of ‘coherence’,20 but some claim that a ‘consistency obligation’ exists as a general principle of EU law.21 These discussions have mainly emerged in the context of the EU external relations policy.22 In this section, I shall partly build on that literature as a helpful way to clarify the meaning of ‘coherence’, its links with the concept of ‘consistency’, and how it may be applied to EU anti-discrimination action. Despite the lack of consensus, a good number of commentators seem to agree that the concept of ‘coherence’ includes the concept of ‘consistency’ but the former is broader than the latter: whereas ‘consistency’ is a passive concept that refers to the lack of contradiction between different policy fields,23 ‘coherence’ is an active concept that entails ‘positive obligations requiring cooperation’ across various policy fields ‘to achieve common overarching goals’.24 On the other hand, however, the Lisbon Treaty introduced a new general ‘policy integration clause’ in Article 7 TFEU that appears to mix the terms ‘consistency’ and ‘coherence’ in different language versions, perhaps indicating some convergence between the two. Whereas the English version of Article 7 TFEU establishes that ‘[t]he Union shall ensure consistency between its policies and activities. . .’, other versions translate ‘consistency’ by ‘coherence’ in the relevant language: ‘coherencia’ (in Spanish), ‘cohérence’ (in French) and Koärenz (in German).25 Similar linguistic differences are reproduced in other primary law provisions. For instance, the English version of Article 21(3)(2) TEU establishes that ‘[t]he Union shall ensure consistency between the different areas of its external action and between these and its other policies’, whilst, again, ‘consistency’ is translated by ‘coherencia’ (in Spanish), ‘cohérence’ (in French) and Koärenz (in German) in other language versions. This could indicate that there is some overlap between the meanings of ‘coherence’ and ‘consistency’ within the EU legal order. Nevertheless, Hillion builds on the CJEU’s case law in the

19

Tietje (1997), pp. 212–213. Den Hertog and Stroβ (2013), p. 378. 21 Shuibhne (2019), p. 168. 22 See e.g. Tietje (1997), pp. 212–213; Cremona (2008), pp. 13–14; Den Hertog and Stroβ (2013), pp. 377–388. Discussions regarding the coherence of EU law have also concerned the rights of EU and non-EU citizens, see e.g. Iglesias Sánchez (2013). 23 Gauttier (2004), p. 23; Missiroli (2001), pp. 177, 182; Shuibhne (2019), pp. 169–170. 24 Den Hertog and Stroβ (2013), pp. 375–376; see also Shuibhne (2019), p. 170; Tietje (1997), p. 212. 25 See further Shuibhne (2019), pp. 169–170. 20

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field of external relations to claim ‘that the two notions cannot be used interchangeably, and that they should be understood as distinct concepts’.26 Despite further ‘concretisation’ of the CJEU case law on these concepts,27 building on previous discussions about these terms in the field of external relations28 as well as emergent discussions in EU anti-discrimination law,29 it is possible to identify ‘coherence’ and/or ‘consistency’ needs in EU anti-discrimination action at three different levels. Firstly, from a theoretical perspective, there is a need for ‘internal consistency’ in the narrow and passive sense identified above, i.e. as the lack of contradiction in the scope of protection that EU law affords to different discrimination grounds. These requirements stem from the idea of human dignity,30 which is one of the roots for EU action in this field.31 As Dupré notes, ‘[m]en’s intrinsic dignity puts them on an equal footing with each other’, so no arbitrary distinctions should be made between the protection that a legal system affords to different discrimination grounds.32 From a practical perspective, however, passively seeking consistency in EU antidiscrimination action may not be enough to effectively protect the most vulnerable individuals. For instance, active efforts to build synergies between different grounds may be necessary to overcome the current regulatory approach, which is rather compartmentalised and single-ground focused, and does not support intersectional or multidimensional discrimination claims.33 Accordingly, there is also a need for internal coherence that derives from the increasing recognition of substantive equality as a key rationale of EU anti-discrimination policy34 and from the need to ensure that anti-discrimination law is effective. In this regard, the European Commission has acknowledged that:

26 Hillion (2014), p. 13. This is based on Cases such as Case 266/03, Commission v Luxembourg (ECJ 23 July 2005) and Case 433/03, Commission v Germany (ECJ 14 July 2005), where the CJEU referred to the need to ensure both ‘coherence’ and ‘consistency’ of action (see, respectively, paras. 60 and 66 of those judgments). 27 Den Hertog and Stroβ (2013), p. 378. 28 Cremona (2008), pp. 13–14; Den Hertog and Stroβ (2013), pp. 373–388; Shuibhne (2019), p. 160. 29 Benedi Lahuerta (2016), Benedi Lahuerta and Zbyszewska (2018a), available at https:// rethinkingeuequalitylaw.wordpress.com. 30 For instance, building on Kant, Dupré identifies the ideal of ‘equality among all human beings’ as one of the ‘dignity ideals’ that ‘became instrumental in the powerful shift from rank to equality that characterized the spirit of the French Revolution and its Declaration; see Dupré (2015), pp. 37–38. 31 This has been recognized by the CJEU in Case 13/94, P. v S. and Cornwall (ECJ 30 April 1996), para. 22, as well as by AG Poiares Maduro and AG Cruz Villalón; see respectively, AG Opinion in Case 303/06, Coleman v Attridge Law and Steve Law (ECJ 17 July 2008), para. 8; AG Opinion in Case 447/09, Prigge v Lufthansa (ECJ 13 September 2011), para. 31. 32 See further Benedi Lahuerta (2016), pp. 354–355 and references cited therein. 33 Fredman (2016). See also Xenidis (2018), p. 41. 34 As I have argued elsewhere this is evident, inter alia, from EU Anti-discrimination Directives self-declared ambition ‘to put into effect’ the principle of equal treatment, the prohibition of indirect discrimination and the concept of ‘reasonable accommodation’, see Benedi Lahuerta (2016).

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The adoption of Article [19 TFEU] reflected the growing recognition of the need to develop a coherent and integrated approach towards the fight against discrimination. This approach seeks to make the most of joint efforts to combat discrimination and to benefit from transfers of experience and good practice across the various grounds. It provides a more effective basis for addressing situations of multiple discrimination. It allows for common legal and policy approaches covering the different grounds, including common definitions of discrimination.35

Seeking internal coherence, however, does not necessarily entail that the EU should pursue coherent action in this field for the sake of it. As noted by Benedi Lahuerta and Zbyszewska, ‘fragmentation and inconsistency, diversity and plurality, are a part of life and thus part of law and policy, especially one that is to speak to a diverse set of Member States and national models’.36 Furthermore, different discrimination grounds may require divergent actions and different levels of intervention to be effectively protected.37 Secondly, there is also a need for coherence between EU anti-discrimination action and other related EU areas which do not formally belong to the antidiscrimination policy field. This is what Benedi Lahuerta and Zbyszewska have called ‘systemic coherence’.38 The concept is similar to what EU external relations’ scholars have termed ‘horizontal coherence’, i.e. ‘coherence between a policy and other policies of the same political entity’.39 This type of coherence requirement is linked to the principles of good administration and good governance40 and is in line with CJEU’s case law demanding that EU norms are interpreted so as ‘not to undermine the systems’ overall coherence’.41 However, it involves much more than the mere interpretation of existing legislation: it requires seeking synergies between, for instance, EU non-discrimination law and labour law and policies. The most obvious example that illustrates this is working time regulation.42 The latter does not formally belong to the area of anti-discrimination law, but rather to health and safety within employment law. Yet, overcoming gendered working time patterns is crucial to better reconcile professional and family commitments, and ultimately, it is essential to advance gender equality.43 Indeed, the Commission has expressly recognised that improving gender equality requires better integration between

35

Commission (EC), Equality and Non-Discrimination in an Enlarged European Union, Green Paper (2004), p. 10. 36 Benedi Lahuerta and Zbyszewska (2018a), available at https://rethinkingeuequalitylaw. wordpress.com. 37 See e.g. Bell and Waddington (2003), pp. 355–358; Benedi Lahuerta (2016), p. 354. 38 Benedi Lahuerta and Zbyszewska (2018a). 39 Den Hertog and Stroβ (2013), p. 377. 40 Shuibhne (2019), p. 171. 41 Bertea (2005), p. 177. 42 Another example would be public procurement; see e.g. Germaine (2017), pp. 40–53. 43 See e.g. Zbyszewska (2016).

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gender equality and labour market policies,44 and this has been one of the key drivers behind the recent adoption of Work-Life Balance Directive.45 The need to observe systemic or horizontal coherence within EU action was arguably reinforced with the Lisbon Treaty, which introduced a general policy integration clause in Article 7 TFEU, establishing that: ‘[t]he Union shall ensure consistency between its policies and activities, taking all of its objectives into account and in accordance with the principle of conferral of powers’. Despite the use of the term ‘consistency’ in the English version, it has been argued that this article effectively demands ‘active coherence’, that is, ‘substantive reorientation’ of policy and rulemaking around common principles and objectives.46 On that basis, the EU should actively mainstream the principle of equal treatment and policies to combat discrimination across EU action as part of its key values and objectives listed in Articles 247 and 3 TEU.48 Importantly, however, this must be pursued in accordance with the principle of conferral and with the more specific integration clauses established in Articles 8 and 10 TFEU (see below, Sect. 4).49 Thirdly, there is also a need for ‘external coherence’, that is, between the EU legal order and international approaches to anti-discrimination law, as described in international conventions and recommendations.50 Like the concept of ‘vertical coherence’ used by external relations’ scholars to refer to the need to observe ‘coherence between a policy at the EU level and the individual EU Member States policies in the same sphere’,51 external coherence is a form of ‘vertical coherence’, but instead of focusing on the relationship between the EU and Member States (i.e. downwards), it looks upwards, i.e. at the relationship between the EU legal order and international conventions and recommendations. The need to pursue external coherence stems, in the first place, from commitments that the EU has acquired at international level. For instance, the EU has signed 44 See the Commission (EU) Recommendation of 26 April 2017 on the European Pillar of Social Rights, which states that ‘equality of treatment and opportunities between women and men must be ensured and fostered in all areas, including regarding participation in the labour market, terms and conditions of employment and career progression’. 45 See De la Corte-Rodríguez et al. (forthcoming in 2020). 46 Den Hertog and Stroβ (2013), p. 377. 47 Article 2 TEU establishes that pursuing equality and protecting “the rights of persons belonging to minorities” are among the founding values of the EU. This provision also emphasises that non-discrimination and equality between women and men are at the core of European societies. 48 Article 3.3.2 TEU provides that the Union “shall combat [. . .] discrimination, and shall promote [. . .] equality between women and men” as part of its aims. This has also been recognised by the Commission in soft law, e.g.: ‘Measures to combat discrimination are also included amongst the fundamental objectives of the European Union in Article 3 of the draft constitution presented to the European Council by the European Convention in July 2003.’, Commission (EC), Equality and Non-Discrimination in an Enlarged European Union, Green Paper (2004), p. 10. 49 For a more detailed discussion on these two provisions see also Caracciolo di Torella (2019) and Ippolito (2019). 50 See Benedi Lahuerta (2016) and Benedi Lahuerta and Zbyszewska (2018a). 51 Den Hertog and Stroβ (2013), p. 377.

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and ratified the UN Convention on the Rights of Persons with Disabilities,52 and it is consequently bound by it. However, even in areas where the EU has not formally entered legal obligations as a separate legal entity, some coherence might be expected between Member States’ international commitments and EU action. This is most visible regarding the ECHR: all Member States are parties to the ECHR, and the TEU establishes that the Union itself ‘shall accede’ to the ECHR (Article 6(2)). In the meantime, Article 6(3) TEU recognises that ‘[f]undamental rights, as guaranteed by the [ECHR] and as they result from the constitutional traditions common to the Member States, shall constitute general principles of the Union’s law’. Accordingly, in line also with Article 52(3) EUCH, EU anti-discrimination law should provide at least the same level of protection provided by the ECHR. Furthermore, as already mentioned, Article 21(3)(2) TEU also requires that ‘[t]he Union ensures consistency between the different areas of its external action and between these and its other policies’, which can be understood as a policy integration clause that requires the Union to actively seek substantive correlation between its external and internal action. Overall, therefore, primary and secondary law, together with case law, seem to indicate that EU anti-discrimination action could be expected to be coherent at internal, systemic and external levels. Next section enquires whether coherence exists in practice at these three levels.

3 Where Lies the Lack of Coherence as Regards EU Anti-Discrimination Action? It should be noted that concerns over the incoherence of EU anti-discrimination law are not new. In academic scholarship, discussions can be traced back to at least the late 1990s-early 2000s.53 However, this literature has mainly analysed the substance of core anti-discrimination law, that is, early discussions tended to focus on the internal (in)coherence of EU anti-discrimination action. Yet, contradictions and lack of coherence can be observed not only as regards core anti-discrimination law but also concerning various other substantive levels and concerning enforcement measures of anti-discrimination law. Accordingly, this section discusses both examples of substantive incoherence (at internal, systemic and external levels) and procedural incoherence (at internal level). In substantive terms, looking both within and beyond the nucleus of EU antidiscrimination action, Benedi Lahuerta and Zbyszewska (2018a) have identified lack of coherence at the three different levels examined above, in Sect. 2 (see Fig. 1).54

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Adopted on 13 December 2006 (61/106), Convention on the Rights of Persons with Disabilities (United Nations 13 December 2006). 53 See e.g. Waddington (1999), Bell (2000) and Waddington and Bell (2001). 54 See above. Whilst these authors refer to ‘inconsistencies’, it is clear from their analysis that they are actually referring to ‘(in)coherence’ as nuanced and defined in section 2 of this article.

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Fig. 1 Substantive in(coherence) levels in EU anti-discrimination action. Source: Benedi Lahuerta and Zbyszewska (2018a)

Firstly, at the core of EU anti-discrimination law, it is possible to identify internal inconsistencies which have led various authors to describe the relationship between EU anti-discrimination grounds as a ‘hierarchy’ due to the divergent scope of protection provided for different grounds.55 At the outset, sex was the higher ranked ground because only sex discrimination was initially prohibited under EU law, together with nationality discrimination in the context of free movement of persons.56 With the adoption of the RED in 2000, however, ‘a second “privileged” category’ of protection emerged for racial or ethnic origin discrimination.57 In fact, material protection for sex discrimination (which does not cover the field of education) is currently narrower than for racial discrimination (see Table 1),58 although it is wider for sex than for the other protected grounds (except racial or ethnic 55

See e.g. Schiek (2002), Bell and Waddington (2003) and Howard (2007). Bell (2020, 3rd ed, OUP forthcoming). 57 Waddington (1999). In fact, protection for sex discrimination in the field of access to goods and services was lacking until the 2004 Directive on gender equality in access to goods and services was adopted. 58 For that reason, it could be argued that racial or ethnic origin should be at the top of the hierarchy of protected grounds, even above sex. However, considering all the other EU measures that directly or indirectly focus on combatting sex discrimination (only) (e.g. Commission Recommendation on strengthening the principle of equal pay between men and women through transparency, OJ L 69/112–116 (2014); Work-Life Balance Directive), sex should arguably sit at the top of the hierarchy, together with racial or ethnic origin (and nationality discrimination for EU nationals only). 56

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Table 1 Material scope of protection for EU anti-discrimination grounds according to the EU AntiDiscrimination Directives Ground Scope Employment & vocational training Social protection Education Access to goods & services

Racial or ethnic origin X

Religion or belief, age, disability, sexual orientation X

Sex X

X X X

– – –

X – X

Source: Own elaboration

origin) given that the FED only applies in the field of employment and vocational training.59 In practice, these regulatory inconsistencies (see Table 1) and the resulting hierarchy of grounds may be softened or deepened through case law. For example, according to Howard, the hierarchy has been reinforced by some recent CJEU’s formalistic rulings.60 In particular, Howard argues that the progressive interpretation of the legal framework and clarification of key concepts in cases such as Chez61 (on ethnic origin discrimination) and Ring and Werge62 (on disability discrimination) contrasts with the narrow approach in the Parris case63 (concerning age and sexual orientation discrimination), and the Achbita64 and Bougnaoui cases65 (concerning the accommodation of religious attire by Muslim women at work).66 Theses gaps in the material scope of the EU Anti-discrimination Directives, and the consequential hierarchy of discrimination grounds, totally or partially undermine substantive protection against discrimination.67 Furthermore, they do not seem to be justified on normative grounds.68 Instead, it is likely that they simply arose out of 59 Even within the FED grounds, a sub-hierarchy may be identified, given that wider exceptions (and thus, weaker protection) exist for age (Arts. 3(4) and 6 FED) and religion discrimination (Art. 4 (2) FED). While specific exceptions also apply to disability discrimination (Art. 3(4) EED), there are also specific provisions (i.e. Arts. 2(2)(ii) and 5 FED) that would arguably put disability over age and religion or belief in the hierarchy of discrimination grounds. 60 Howard (2018). 61 Case 83/14, CHEZ Razpredelenie Bulgaria AD v Komisia za zashtita ot diskriminatsia (ECJ 16 July 2015). 62 Cases 335/11 and 337/11, HK Danmark, acting on behalf of Jette Ring v Dansk almennyttigt Boligselskab (ECJ 11 April 2013); HK Danmark, acting on behalf of Lone Skouboe Werge v Dansk Arbejdsgiverforening, acting on behalf of Pro Display A/S (ECJ 11 April 2013). 63 Case 443/15, Parris v Trinity College Dublin and others (ECJ 24 November 2016). 64 Case 157/15, Achbita, Centrum voor gelijkheid van kansen en voor racismebestrijding v G4S Secure Solutions NV (ECJ 14 March 2017). 65 Case 188/15, Bougnaoui and Association de défense des droits de l’homme (ADDH) v Micropole SA (ECJ 14 March 2017). 66 Howard (2018), pp. 64–73. 67 See further Benedi Lahuerta (2016), p. 348. 68 Bell (2020) and European Commission (2004), p. 10.

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political contingencies,69 and due to the limits inherent to the existing legal bases and how the EU legislator has used the latter. Indeed, one of the crucial obstacles for the adoption of more ambitious and coherent anti-discrimination legislation at EU level is Article 19 TFEU, which requires unanimity at the Council to enact legislation.70 Yet, this high threshold is not always required to pass anti-discrimination legislation in the field of sex: under Articles 153(1)(i) or 157(3) TFEU, concerning equal treatment between women and men in employment and occupation (including equal pay), only qualified majority at the Council is needed.71 Consequently, legislative proposals developed under Article 19 TFEU may be blocked for a long time if, for example, some ambitious provisions are not acceptable for one or two Member States, or a given legislative proposal may end up being watered down to be enacted. In contrast, similarly controversial provisions may more easily be passed following the legislative procedures under Articles 153(1)(i) or 157(3) TFEU, even with the opposition of a minority of Member States.72 Secondly, systemic incoherence in the form of misalignments between (formal) EU anti-discrimination law and other related legal and policy areas also exist in the current legal framework. This type of incoherence used to be particularly acute in connection with work-life balance policies and working time regulation.73 It is widely acknowledged that working hours and patterns are crucial for a more even distribution of unpaid care work between men and women, and thus, for women’s participation in the labour market and for addressing structural trends that contribute to the persistence of gender inequality.74 Whilst this has been recognised by the EU for a while,75 on the paper, rights to care leaves continued to be more extensively available to women. However, the Work-Life Balance Directive adopted in 2019 has partly addressed this source of systemic incoherence76 thanks to, inter alia, more

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Bell (2020) and Benedi Lahuerta (2016), pp. 348–367. Conscious of this constraint, the European Commission recently proposed to amend Article 19 (1) TFEU so that only qualified majority is required at the Council, see Commission, ‘More Efficient Decision-Making in Social Policy: Identification of Areas for an Enhanced Move to Qualified Majority Voting’, COM (2019) 186 final of 26 September 2019, 9–10. 71 These provisions refer to the ‘ordinary legislative procedure’, which is described in Article 294 TFEU. See also Article 16(3) TEU. 72 This is perfectly exemplified by the stark contrast between (a) the proposal for a Horizontal Directive, pending since 2008 due to the lack of consensus at the Council—inevitably required under its legal base (Article 19 TFEU)—, and (b) the ‘Work-Life Balance Directive’, proposed in 2017 under the legal basis of Article 153(1)(i)-(2)(b), and which was adopted relatively swiftly in June 2019. For a comment on the negotiation procedure of the Work-Life Balance Directive see De la Corte-Rodríguez et al. (2020). 73 Another area where systemic incoherence arguably exists is at the intersection of antidiscrimination law and atypical or precarious work, see further Bell (2019). 74 See e.g. Weldon-John (2013) and Davaki (2016). 75 For instance, by the European Commission’s New Start Initiative, see e.g. https://ec.europa.eu/ social/main.jsp?langId¼en&catId¼1044&newsId¼2388&furtherNews¼yes. 76 See further De la Corte-Rodríguez et al. (forthcoming in 2020). 70

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comprehensive leave rights for parents77 and a revised right to flexible working.78 Nevertheless, some problems persist. Standard working hours, and especially, long working hours are difficult to reconcile with work-life balance and tend to encourage a gendered distribution of unpaid care work.79 Whilst the adoption of the Work-Life Balance Directive is a positive improvement towards better systemic coherence, the right to request flexible working arrangements can only fully support the EU’s aspirations in the field of gender equality if it is further reinforced,80 and improvements in other related areas are also introduced (e.g. available and affordable care both for children81 and for other dependants, including long-term care and care for the old-age). Thirdly, substantive discrepancies between EU anti-discrimination law and international standards (such as conventions and recommendations from other international organisations) have given rise to several examples of external incoherence. For instance, the EU has ratified the UN Convention on the Rights of Persons with Disabilities, and the CJEU has regularly referred to the Convention in its latest disability discrimination judgments.82 However, a closer look to the CJEU case law reveals that it may not fully align with the Convention’s social model of disability.83 Furthermore, EU law does not require the setting up of equality bodies with powers in the field of disability discrimination, as suggested by the Convention.84

77 E.g. paternity leave has been extended to a minimum of at least 10 working days and must be compensated to the level of, at least, sick pay. Additionally, 2 of the 4 months of parental leave must become non-transferable between parents and must be compensated (at the level set by the relevant Member State); see Arts. 4 and 5. 78 This right has been extended to all working parents of children aged up to eight years old and, generally, to all carers, see Arts. 5 and 6. 79 See e.g. Zbyszewska (2013). 80 E.g. by requiring more comprehensive justifications from the employer if the request is dismissed and by limiting the situations where a request may not be granted. 81 See e.g. CORAN, ‘What influences mothers’ decisions about returning to work after having a baby?’ Available at www.familyandchildcaretrust.org/sites/default/files/Resource%20Library/ Coram_UnderstandingSocietyBriefing_211019_1.pdf; UNICEF, Achieving Women’s Economic Empowerment and Early Childhood Care and Development as Mutually Reinforcing Objectives, available at www.unicef.org/earlychildhood/files/Technical_NoteAchieving_Womens_Economic_ and_ECD.pdf. 82 E.g. Cases C-335/11 and 337/11, HK Danmark v Dansk almennyttigt Boligselskab; HK Danmark v Dansk Arbejdsgiverforening,, (ECJ 11 April 2013); C-354/13, FOA, acting on behalf of Karsten Kaltoft v KL, acting on behalf of the Municipality of Billund (ECJ 12 June 2014). 83 See e.g. Waddington (2015), p. 591; Waddington and Broderick (2018). 84 Art. 33(2) of the Convention establishes that State Parties ‘shall [. . .] maintain, strengthen, designate or establish within the State Party, a framework, including one or more independent mechanisms, as appropriate, to promote, protect and monitor implementation of the present Convention’, taking ‘into account the principles relating to the status and functioning of national institutions for protection and promotion of human rights’.

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As I have argued elsewhere, another source of external incoherence85 might be the lack of alignment between EU law and the Yogyakarta Principles on Sexual Orientation and Gender Identity (2006),86 which recommend that ‘gender identity’ is expressly prohibited as a discrimination ground.87 While on the political level EU discussions on transgender rights and gender identity issues go back a few decades,88 from a legal perspective, gender identity discrimination is not expressly prohibited under the EU Anti-discrimination Directives. It is true that already in 1996 the CJEU recognised in P v. S that gender reassignment discrimination amounts to sex discrimination,89 and this was later codified in Recital 3 of the ‘Recast Directive’. Nonetheless, this is far from satisfactory given that the reference in the Recast Directive is not binding,90 and the concept of ‘gender reassignment’ does not include a wide range of gender expressions, such as intersex people.91 Increasingly, however, there is some patchy acknowledgment, in various EU fields, that gender identity discrimination should be protected under EU law. For instance, in the view of the European Commission, ‘gender identity’ discrimination should be considered prohibited under EU ‘sex’ discrimination law because the approach to ‘gender reassignment’ and ‘gender identity’ ‘should be materially similar’.92 There are also various formal references to the expression ‘gender identity’ in EU secondary legislation which indicate the increasing acceptance of and awareness about that

85 Another source of external incoherence may arguably be identified in connection with the ECtHR case law. According to some authors, the recent CJEU approach in the case of Achbita on wearing religious symbols at the workplace may sit uncomfortably with the ECtHR ruling in Eweida (Eweida and others v UK. Apps. Nos: 48420/10, 59842/10, 51671/10 and 36516/10, judgment of 15 January 2013), see further McCrea (2016), but cf. with Hashemi (2019). 86 These have now been complemented by the Yogyakarta Principles plus 10 (YP+10), adopted on 10 November 2017. See also Parliamentary Assembly (Council of Europe), Recommendation 1117 (1989) Condition of transsexuals, at 11(d). 87 These principles have not been formalised in an international convention, but they were signed by leading experts from the UN and from more than 25 different countries and they are increasingly recognised as a key international benchmark in this field. 88 See e.g. European Parliament (EC) resolution on discrimination against transsexuals, OJ C 256/ 33-37 (1989). 89 Paras. 20–21. See also subsequent rulings on gender reassignment Case 117/01, K.B. v National Health Service Pensions Agency and Secretary of State for Health (ECJ 7 January 2004); Case 423/04, Richards v Secretary of State for Work and Pensions (ECJ 27 April 2006). 90 Some Member States have transposed Recital 3 into their national legislations (and in some cases, have extended the prohibition to gender identity discrimination) but many others have not, see further Timmer and Senden (2016), pp. 10–11. 91 See further Agius and Tobler (2012), pp. 139–216. 92 Report on the application of Council Directive 2004/113/EC implementing the principle of equal treatment between men and women in the access to and supply of goods and services, COM (2015) 190 final of 5 May 2015, p. 4. See also the Parliament (EU), Resolution of 4 February 2014 on the EU Roadmap against homophobia and discrimination on grounds of sexual orientation and gender identity (2013/2183(INI)), at 4(C-D).

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concept.93 Nevertheless, the current piecemeal and predominantly informal recognition that ‘gender identity’ discrimination is prohibited under the concept of ‘sex’ discrimination, and the lack of a clear and visible statement that such prohibition is binding and applies in all areas covered by sex anti-discrimination law is at odds with the latest international trends. Finally, some forms of incoherence may also be identified as regards EU procedural law and enforcement mechanisms. For instance, at internal level, it is striking that Directives 2000/43/EC, 2006/54/EC, 2010/41/EU mandate the setting up equality bodies at national level with powers regarding racial or ethnic origin and sex discrimination,94 but no EU requirement exists concerning the other protected grounds.95 Certainly, many Member States have gone beyond EU law requirements by setting up equality bodies with competence to deal with all or most protected grounds, but this is not always the case.96 The adoption of the 2008 Horizontal Directive Proposal would extend the duty to set up national equality bodies for all Article 19 TFEU grounds,97 but, for disability, age, religion or belief and sexual orientation, the requirement would only apply in the access to goods and services, and not in the area of employment, which seems even more incoherent. Given the key role played by equality bodies in implementing, monitoring and developing EU anti-discrimination law at national level,98 the Commission has recently highlighted that Member States should consider extending the equality bodies’ mandate so that it covers, for all prohibited grounds of discrimination, the areas of employment and occupation, access to and supply of goods and services, education, social protection and social advantages, including hate speech related to these grounds in these areas.99

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For instance, Directive 2011/95/EU (‘Recast Qualification Directive’) 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, OJ L 337/9-25 (2011), Art. 10(1)(dd); Directive 2012/29/ EU (‘Victims’ Rights Directive’) establishing minimum standards on the rights, support and protection of victims of crime, and replacing Council Framework Decision 2001/220/JHA, OJ L 315/57-73 (2012). 94 See also a similar requirement concerning nationality discrimination in Directive 2014/54/EU (‘Enforcement measures for free movement of workers’) on measures facilitating the exercise of rights conferred on workers in the context of freedom of movement for workers, OJ L 128/8-14 (2014), Art. 4. 95 Another example of procedural incoherence would be the lack of EU encouragement for collective redress mechanisms in the field of anti-discrimination law, whereas these tools are expressly recommended for other EU law areas, such as consumer law; see further Benedi Lahuerta (2018). 96 Chopin et al. (2019). 97 See Art. 12 of the Proposal 2019. 98 See further Kádár (2018), pp. 144–162. 99 Recommendation on standards for equality bodies, COM (2018) 3850 final of 22 June 2018, Chapter II, at 1.1.1 (2).

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It seems, therefore, that various examples of incoherence can be identified at internal, systemic and external level. In most cases, they appear to be the consequence of the incremental evolution of EU Anti-discrimination law derived from the progressive expansion of Union competences and the difficulties of reaching political agreements to enact legislation under Article 19 TFEU in an enlarged and diversified European Union. As next section suggests, legislative amendments may be an option to address some of the issues discussed in this section, but interpretative solutions may also be viable—and perhaps more realistic—within the existing conferred powers.

4 Conclusion This contribution has discussed whether EU anti-discrimination action has so far been comprehensive and coherent. As noted in the introduction, from a material scope perspective, EU action in this field cannot be considered to be ‘comprehensive’. To some extent, however, this is not the EU’s ‘fault’: it is a consequence of the nature of the EU itself. Yet, even within its existing (limited) powers in the field of anti-discrimination law and policy, EU action in this field could arguably be more ambitious.100 The rest of the paper has focused on whether EU action in this field is ‘coherent’. The discussion necessarily started off considering if there is a need for coherence in EU anti-discrimination action. In Sect. 2, I have argued that there is indeed a need for coherent anti-discrimination action at internal, systemic and external levels. This does not necessarily mean that EU regulation should deal with all discrimination grounds in exactly the same manner. Different approaches to different contexts of disadvantage may in fact be justified to achieve substantive equality. Yet, some of the above-mentioned examples of incoherence appear circumstantial and unfounded. Since the entry into force of the Lisbon Treaty, the need for coherence is supported by Articles 7, 8 and 10 TFEU (systemic coherence) and Article 21(3) (2) TEU (external coherence). In particular, Articles 8 and 10 TFEU require the mainstreaming of EU objectives in the field of equal treatment between men and women and regarding the elimination of discrimination101 in all Union activities, respectively. These provisions are—at least, in theory—powerful tools to improve coherence in this area, especially at systemic level. For instance, Ippolito claims that Article 10 TFEU can be understood as a positive duty to pursue substantive equality, which ‘seeks to change the mindset of policymakers in order that equality becomes a central concern’ not only in areas of exclusive EU competence, but also in areas of shared competence and where the EU only has a coordinating, supporting or

100

For instance, see criticism on the shortcomings of EU anti-discrimination law for the protection of non-EU nationals and national minorities in Kochenov (2018). 101 Concerning discrimination grounds protected under EU law only.

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supplementing role.102 Some recent improvements in this direction include more detailed guidelines to consider anti-discrimination and equality issues in impact assessments and the setting-up of Inter-service Working groups on ‘equality-related issues’, e.g. on racism and xenophobia.103 However, new legislation may not always be necessary to improve the coherence of EU anti-discrimination action. Other approaches might be considered to address some of the above-pointed loopholes and inconsistencies, including interpretative approaches. For example, some authors have pointed out how the concept of accommodation could be used not only for disability discrimination but also for other discrimination grounds. Even though this concept initially emerged in the field of disability discrimination, parallel forms of perhaps slightly different ‘accommodation’ duties could be appropriate to accommodate differences in other discrimination contexts. For instance, the concept of indirect discrimination could be the starting point to accommodate religious differences104 or other workplace needs.105 A progressive interpretation of some concepts, based on the Canadian ‘Living-Tree’ doctrine,106 could also be considered to broadly interpret ‘sex discrimination’ as including ‘gender identity discrimination’. There is a clear reason to do so, namely, the fact that the latter emerges due to the non-conformity with stereotypical assumptions about sex as a binary concept.107 In fact, such interpretation has already been adopted in several judgments in the US and India.108 The drawback of relying on interpretative solutions at EU level, however, is that the CJEU can only have a say on these matters if a preliminary ruling specifically raises the relevant issue, and even then, the CJEU may be susceptible to the socio-political context and/or voluntarily refrain from developing progressive interpretations to avoid being perceived as an ‘activist’ court.

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Ippolito (2019), pp. 58–59. Ippolito (2019), pp. 65–68. 104 Alidadi (2012), pp. 707–710; Howard (2013), p. 360. 105 Bell (2018). 106 Miller (2009). 107 Lau has also advanced theoretical arguments based on transitional and categorical rationales, see Lau (2018), pp. 10–11. 108 See e.g. Ulane v E. Airlines 742 F.2d 1081, 1084-87 (US, 7th Cir. 1984); National Legal Services Authority (NALSA) v Union of India, SCC 1 (India 2014), para. 59. On the US approach, see further Eyer (2017). 103

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Alidadi, Katayoun. 2012. Reasonable Accommodation for Religion and Belief: Adding Value to Art. 9 ECHR and the EU’s Antidiscrimination Approach in Employment? European Law Review 37: 693–715. Belavusau, Uladzislau, and Kristin Henrard. 2019. The Impact of the 2000 Equality Directives on EU Anti-Discrimination Law. Achievements and Pitfalls. In EU Anti-Discrimination Law Beyond Gender, ed. Uladzislau Belavusau and Kristin Henrard, 1–38. Oxford: Hart. Bell, Mark. 2000. Article 13 EC: The European Commission’s Anti-Discrimination Proposals. Industrial Law Journal 29: 79–84. ———. 2018. Adapting Work to the Worker: The Evolving EU Legal Framework on Accommodating Worker Diversity. International Journal of Discrimination and the Law 18: 124–143. ———. 2019. EU Equality Law and Precarious Work. In EU Anti-Discrimination Law Beyond Gender, ed. Uladzislau Belavusau and Kristin Henrard, 75–94. Oxford: Hart. ———. 2020. EU Anti-Discrimination Law: Navigating Sameness and Difference. In The Evolution of EU Law, ed. Paul Craig and Gráinne de Búrca, 3rd ed. Oxford: Oxford University Press. (forthcoming). Bell, Mark, and Lisa Waddington. 2003. Reflecting on Inequalities in European Equality Law. European Law Review 28: 349–369. Benedi Lahuerta, Sara. 2009. Race Equality and TCNs, or How to Fight Discrimination with a Discriminatory Law. European Law Journal 15: 738–756. ———. 2016. Taking EU Equality Law to the Next Level: In Search of Coherence. European Labour Law Journal 7: 348–367. ———. 2018. Enforcing EU equality law through collective redress: Lagging behind? Common Market Law Review 55 (3): 783–818. Benedi Lahuerta, Sara, and Ania Zbyszewska. 2018a. Rethinking EU Equality Law – Towards a More Coherent and Sustainable Regime: Exploring the Alternatives. Southampton/Warwick Policy Paper of EU Equality Law. Available at https://rethinkingeuequalitylaw.wordpress.com. ———. 2018b. EU Equality Law After a Decade of Austerity: On the Social Pillar and Its Transformative Potential. International Journal of Discrimination and the Law 18 (2–3): 163–192. ———. 2018c. Taking Stock of Twenty Years of EU Equality Law and Policymaking and Looking Ahead. International Journal of Discrimination and the Law (Editorial): 55–59. Bernitz, Ulf. 2015. The Scope of the Charter and its Impact on the Application of the ECHR. In The EU Charter of Fundamental Rights as a Binding Instrument, ed. Sybe de Vries, Ulf Bernitz, and Stephen Weatherill, 155–185. Oxford: Hart. Bertea, Stefano. 2005. Looking for Coherence Within the European Community. European Law Journal 11: 154–172. Caracciolo di Torella, Eugenia. 2019. The Principle of Gender Mainstreaming: Possibilities and Challenges. In The EU and the Proliferation of Integration Principles Under the Lisbon Treaty, ed. Francesca Ippolito, Maria Eugenia Bartoloni, and Massimo Condinanzi, 45–54. London: Routledge. Chopin, Isabelle, Carmine Conte, and Edith Chambrier. 2019. A Comparative Analysis of Non-Discrimination Law in Europe 2018. Luxembourg: Publications of the European Union. Craig, Paul, and Gianni De Búrca. 2015. EU Law. Text, Cases and Materials. Oxford: Oxford University Press. Cremona, Marise. 2008. Coherence Through Law: What Difference Will the Treaty of Lisbon Make? Hamburg Review of Social Sciences 3: 11–36. Davaki, Konstantina. 2016. Differences in Men’s and Women’s Work, Care and Leisure Time, Study for the European Parliament’s Committee on Women’s Rights and Gender Equality. www.europarl.europa.eu/RegData/etudes/STUD/2016/556933/IPOL_STU(2016)556933_EN. pdf. De la Corte-Rodríguez, Miguel, F. Luetz, and Álvaro Oliveira. 2020. The New Directive on WorkLife Balance: Towards a New Paradigm of Family Care and Equality? European Law Review. (forthcoming).

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De Schutter, Olivier. 2016. Links Between Migration and Discrimination. Brussels: Publications Office of the European Union. Den Hertog, Leonhard, and Simon Stroβ. 2013. Coherence in EU External Relations: Concepts and Legal Rooting of an Ambiguous Term. European Foreign Affairs Review 18: 373–388. Dupré, Catherine. 2015. The Age of Dignity. Human Rights and Constitutionalism in Europe. Oxford: Hart. European Commission. 2004. Equality and Non-Discrimination in an Enlarged European Union’, Green Paper. Brussels: Office for Official Publications of the European Communities. Eyer Katie, R. 2017. Sex discrimination law and LGBT equality. Advance: The Journal of the ACS Issue Briefs 11: 77–92. Fiori-Khayat, Coralte. 2019. Protecting Minority Population in Europe with European Law. In Globalization and “Minority” Cultures, ed. Sophie Croisy, 122–137. Leiden: Brill Nijhoff. Fredman, Sandra. 2016. Intersectional Discrimination in EU Gender Equality and Non-Discrimination Law. Brussels: Publications Office of the European Union. Gauttier, Pascal. 2004. Horizontal Coherence and the External Competences of the European Union. European Law Journal 10: 23–41. Germaine, Catharina. 2017. The Growing Importance of Public Procurement to Achieve Social Goals. European Equality Law Review 2: 40–53. Hashemi, M. 2019. Eweida Versus Achbita: A Storm in a Teacup? European Employment Law Cases: 174. Henrard, Kristin. 2019. The effective protection against racial discrimination and the burden of proof: Making up the balance of the court of Justice’s guidance. In EU anti-discrimination law beyond gender, ed. Uladzislau Belavusau and Kristin Henrard, 95–118. Oxford: Hart. Hillion, Christophe. 2014. Tous pour un, un pour tous! Coherence in the External Relations of the European Union. Leiden: Leiden Law School. Howard, Erica. 2007. The Case for a Considered Hierarchy of Discrimination Grounds in EU Law. Maastricht Journal of European and Comparative Law 13: 445–470. ———. 2013. Reasonable Accommodation of Religion and Other Discrimination Grounds in EU Law. European Law Review 38: 360–375. ———. 2018. EU Anti-Discrimination Law: Has the CJEU Stopped Moving Forward? International Journal of Discrimination and the Law 18: 60–81. Iglesias Sánchez, Sara. 2013. Fundamental Rights Protection for Third Country Nationals and Citizens of the Union: Principles for Enhancing Coherence. European Journal of Migration and Law 15: 137–153. Ippolito, Francesca. 2019. Mainstreaming Equality in the EU Legal Order: More Than a Cinderella Provision? In The EU and the Proliferation of Integration Principles Under the Lisbon Treaty, ed. Francesca Ippolito, Maria Eugenia Bartoloni, and Massimo Condinanzi, 55–82. London: Routledge. Kádár, Tamás. 2018. Equality Bodies: A European Phenomenon. International Journal of Discrimination and the Law 18: 144–162. Kochenov, Dimitry. 2018. When Equality Directives Are Not Enough: Taking an Issue with the Missing Minority Rights Policy in the EU. In Discrimination Law Beyond Gender, ed. Uladzislau Belavusau and Kristin Henrard, 119–140. Oxford: Hart. ———. 2019. When Equality Directives Are Not Enough: Taking an Issue with the Missing Minority Rights Policy in the EU. In EU Anti-Discrimination Law Beyond Gender, ed. Uladzislau Belavusau and Kristin Henrard, 119–138. Oxford: Hart. Lau, Holning. 2018. Sexual Orientation and Gender Identity Discrimination. Comparative Discrimination Law 2: 1–52. Lembke, Ulrike. 2016. Tackling Sex Discrimination to Achieve Gender Equality? Conceptions of Sex and Gender in EU Non-Discrimination Law and Policies. European Equality Law Review 2 (16): 46–55.

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McCrea, Ronan. 2016. Singing from the Same Hymn Sheet? What the Differences Between the Strasbourg and Luxembourg Courts Tell Us About Religious Freedom, Non-Discrimination, and the Secular State. Oxford Journal of Law and Religion 5: 183–210. Miller, Bradley. 2009. Beguiled by Metaphors: The Living Tree and Originalist Constitutional Interpretation in Canada. The Canadian Journal of Law and Jurisprudence 22: 331–367. Missiroli, Antonio. 2001. European Security Policy: The Challenge of Coherence. European Foreign Affairs Review 6: 177–196. Schiek, Dagmar. 2002. A New Framework on Equal Treatment of Persons in EC Law? European Law Journal 8: 290–314. Shuibhne, Nic. 2019. Deconstructing and Reconstructing Article 7 TFEU. In The EU and the Proliferation of Integration Principles Under the Lisbon Treaty, ed. Francesca Ippolito, Maria Eugenia Bartoloni, and Massimo Condinanzi, 160–181. London: Routledge. Tietje, Christian. 1997. The Concept of Coherence in the Treaty on the European Union and the Common Foreign and Security Policy. European Foreign Affairs Review 2: 211–233. Timmer, Alexandra, and Linda Senden. 2016. Gender Equality Law in Europe. How Are EU Rules Transposed Into National Law in 2018? Luxembourg: Publications of the European Union. Waddington, Lisa. 1999. Testing the Limits of the EC Treaty Article on Non-Discrimination. Industrial Law Journal 28: 133–151. ———. 2015. Saying all the right things and still getting it wrong: The court of Justice’s definition of disability and non-discrimination law. Maastricht Journal of European and Comparative Law 22: 576–591. Waddington, Lisa, and Mark Bell. 2001. More Equal Than Others: Distinguishing European Union Equality Directives. Common Market Law Review 38: 587–611. Waddington, Lisa, and Andrea Broderick. 2018. Combating Disability Discrimination and Realising Equality – a Comparison of the UN Convention on the Rights of Persons with Disabilities and EU Equality and Non-Discrimination Law. Luxembourg: Publications of the European Union. Weldon-John, Michelle. 2013. EU Work-Family Policies-Challenging Parental Roles or Reinforcing Gendered Stereotypes? European Law Journal 5: 662–681. Xenidis, Raphaële. 2018. Multiple Discrimination in EU Anti-Discrimination Law: Towards Redressing Complex Inequality? In EU Anti-Discrimination Law Beyond Gender, ed. Uladzislau Belavusau and Kristin Henrard, 41–74. Oxford: Hart-Publishing. Zbyszewska, Ania. 2013. The European Working Time Directive: Keeping the Long Hours with Gendered Consequences. Women’s Studies International Forum 39: 30–41. Zbyszewska, Ania. 2016. Reshaping EU working-time regulation: Towards a more sustainable regime. European Labour Law Journal 3: 331–347.

Sara Benedi Lahuerta is assistant professor at the University College Dublin, Sutherland School of Law.

The Coherence of EU Antidiscrimination Law: A Look at its Systemic Approach in Light of Relational Grounds of Discrimination and Collective Norms in Employment Marie Mercat-Bruns

Contents 1 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 From Sex to Parenting: A Coherent and Structural View of Grounds as Situations of Discrimination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.1 The Internal Coherence of EU Antidiscrimination Law Through Parental Rights . . 2.2 The Challenges to an External Coherence of EU Antidiscrimination Law Associated to Sex Discrimination and Parental Rights . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 From a Ban on Discrimination in Collective Norms to a General Framework on Work-Life Balance: A Systemic and Coherent Analysis of EU Equality Law? . . . . . . . . . . . . . . . . . . . . . . . 3.1 The Internal Coherence of EU Law Limiting Systemic Barriers to Employment and Access to Social Rights . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.2 The Internal Coherence of EU Antidiscrimination Law Expanding the Structural Dimension of Positive Action . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.3 The Challenges of the External Coherence of EU Antidiscrimination Law: Linking Collective Equality Rights to the Broader Framework of Social Rights . . . . . . . . . . . . 4 Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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Abstract EU Antidiscrimination law is at a turning point in the development of its legal standards and their interpretation. It requires internal and external coherence to ensure its meaningful enforcement in the future as a means for social justice. The legal framework has drawn in the past from a more structural view of grounds and concepts of discrimination. Examples from gender and sexual orientation discrimination in employment cases and norms reflect this trend by anchoring relational issues of parenting, social rights and work life balance in the equation of equality law and illustrate the future challenges involved linked to collective norms concluded by the social partners.

M. Mercat-Bruns (*) Sciences Po Law School, Paris, France e-mail: [email protected] © Springer Nature Switzerland AG 2020 T. Giegerich (ed.), The European Union as Protector and Promoter of Equality, European Union and its Neighbours in a Globalized World 1, https://doi.org/10.1007/978-3-030-43764-0_9

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1 Introduction Coherence of EU antidiscrimination law through a systemic approach of collective norms, was developed quite early in the case law. The ECJ, intuitively and empirically, was explicit from the outset: “The fact that the rates of pay at issue are decided by collective bargaining processes conducted separately for each of the two professional groups concerned, without any discriminatory effect within each group, does not preclude a finding of prima facie discrimination where the results of those processes show that two groups with the same employer and the same trade union are treated differently. If the employer could rely on the absence of discrimination within each of the collective bargaining processes taken separately as sufficient justification for the difference in pay, he could (. . .) easily circumvent the principle of equal pay by using separate bargaining processes”.1 As early as 1993, in the Enderby case cited, the ECJ Court scrutinized the collective bargaining process and adopted a systemic evaluation of possible sex discrimination in wages. The difference in pay between two jobs of equal value, one carried out almost exclusively by women and the other predominantly by men could be justified by the fact that pay was decided by separate collective bargaining processes. The Court looked at the result of these collective bargaining processes and showed the result was “not permissible where two groups with the same employer and the same trade union are treated differently”. This case reflects exactly what our research will attempt to demonstrate. The internal and external coherence of EU antidiscrimination law as it applies to employment comes from a continued emphasis on structural inequality linked to a systemic analysis of discrimination. The internal coherence of the law is linked to the dynamics of the norms themselves, the logic of their interpretation in terms of substantive equality and advancement in terms of social justice. The external coherence of the law can stem from the articulation between the EU antidiscrimination law and other legal frameworks such as labor and social rights in the employment field.2 When we refer to a systemic view of discrimination, it can be understood either in a narrow quantitative sense as a form of discrimination which has a wider impact on a group, a profession or an industry3 or in a broader sense, as systemic discrimination that has been explicitly recognized, in the case law of certain countries. In this case, the legal notion is seen as a particular form of organizational discrimination (i.e. the complex result of a combination of direct and indirect discrimination) like the glass ceiling for women.4 Through the example of EU gender and sexual orientation discrimination law at work and its development, our 1

Case 127/92, Enderby v Frenchay Health Authority and Secretary of State for Health (ECJ 27 October 1993), para. 22. 2 See generally Mercat-Bruns et al. (2018). 3 In the US, It is linked to a particularly high number of claims, litigated jointly and generated by a particular pattern or practice of discrimination, See my article. 4 Which is the case in Canada, see my article.

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goal is to show that, considering the importance and deference given to social partners in EU Law and even more so after the Lisbon Treaty, EU law has had to adopt and can continue to promote a more systemic view of discrimination even in collective norms, (2) outside of developing a more structural view of grounds linked, for instance, to parenting as a relational view of equality (1).

2 From Sex to Parenting: A Coherent and Structural View of Grounds as Situations of Discrimination Equality is considered as a fundamental principle recognized as such by the ECJ: “equal treatment between men and women is a fundamental right, part of the general principles of EU law which the Court must ensure the respect”.5 Its legitimacy is reinforced by article 21 of EU Charter on fundamental rights which is now binding, following the Lisbon Treaty. Equality is a condition of legality of any EU instrument or any action of EU institutions and agencies.6 Non-discrimination, as a more operational tool to promote equal treatment and opportunity has first served to remove barriers within the internal market with regard to equal pay for example.7 But some observers would say that the internal coherence of EU antidiscrimination law, has sprung from the adoption of the Treaty of Amsterdam of 1997, in its article 13 (now art. 19), which gave further impetus to this framework by expanding, through a new directive,8 coverage of antidiscrimination law to other grounds prohibiting discrimination based on sex, racial or ethnic origin, religion or belief, disability, age and sexual orientation. It is possible to consider that, beyond this diversification of the grounds, it is the more structural consideration of some of these grounds such as those grasping situations of “care” associated to gender and parental rights which reflect a more coherent systemic approach of EU discrimination law (Sect. 2.1). However, there can be limits to fine tuning the application of grounds of discrimination with regard to sex discrimination (Sect. 2.2).

5

Case 149/77, Defrenne v Sabena (ECJ 15 June 1987). Article 19 TFEU. 7 Article 157 TFEU. 8 Council Directive 2000/78/EC establishing a general framework for equal treatment in employment and occupation, OJ L 303/16–22 (2000). 6

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The Internal Coherence of EU Antidiscrimination Law Through Parental Rights

As previously mentioned, the ECJ Court early on, without formally referring to systemic discrimination, has adhered to its logic and provided tools of interpretation to flesh out group disadvantage, reflected in the notion of positive action to pursue equality of outcomes in article 157 TFEU § 4: “with a view to ensuring full equality in practice between men and women in working life, the principle of equal treatment shall not prevent any Member State from maintaining or adopting measures providing for specific advantages in order to make it easier for the underrepresented sex to pursue a vocational activity or to prevent or compensate for disadvantages in professional careers.” Moreover, article 33 of the EU Charter of Fundamental Rights protects caring relationships: ‘to reconcile family and professional life, everyone shall have the right to protection from dismissal for a reason connected with maternity, and the right to paid maternity leave and to parental leave following the birth or adoption of a child.’ The most striking systemic approach to sex discrimination is present in the way EU law was construed to protect and enhance maternity and parental rights. The coherence of this approach is inscribed in the way the Court has had a relational view of sex discrimination. Most challenges in employment and careers for women come from their situation linked to childbirth and childrearing. This sets a relational view of equality which has already been described as relevant for using comparability of situations and as part of a bigger project to advance social justice in EU law.9 The Court of Justice revealed that systemic sex discrimination may stem from the limited consideration of a particular difference of treatment linked to a return from maternity leave.10 ‘Article 15 of Directive 2006/54/EC which requires equivalent jobs and conditions of employment after maternity precludes national legislation which (. . .) excludes a woman on maternity leave from a vocational training course (. . .) which is compulsory in order to be able to be appointed definitively to a post as a civil servant and in order to benefit from an improvement in her employment conditions, while guaranteeing her the right to participate in the next training course organized, the date of which is nevertheless uncertain.’11 This decision, based on the proportionality test,12 is fundamental to understand how the introduction of

9

Neuvonen (2016), p. 148. Case 595/12, Napoli v Ministero della Giustizia (ECJ 6 March 2014). 11 Case 595/12, Napoli v Ministero della Giustizia (ECJ 6 March 2014), para. 1. 12 Case 595/12, Napoli v Ministero della Giustizia (ECJ 6 March 2014), para. 36: ‘It must be stated that a measure such as that at issue in the main proceedings, which provides for automatic exclusion from a training course and renders it impossible to sit the examination organised at the end of that course, without account being taken, in particular, either of the stage of the course at which the absence for maternity leave takes place or of the training already received, and which merely grants the woman who has taken such leave the right to participate in a training course organised at a later, but uncertain, date, does not appear to comply with the principle of proportionality.’. 10

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workplace policies, that seem neutral on their face but offer rights based on the particular availability or presence of workers and procedures, produces systemic sex discrimination. The deferral of training because of maternity leave postpones advancement and limits pay. The wage disparity incurred by these civil servants is never subsequently compensated during their career and structurally applies to all women taking maternity leave. This idea that the relationship of care must be protected through EU antidiscrimination law is inscribed in many different types of cases related to maternity leave. Maternity as a protected state prevails over the status of the worker is present in the Danosa case. A member of a capital company board of directors, even if she is not ‘a pregnant worker’ within the meaning of Directive 92/85, cannot be removed, on account of pregnancy without constituting direct discrimination on the grounds of sex. In Kiiski case,13 the CJEU held that the requirement that a person works between periods of family-related leave is discriminatory. Regarding parental leave, a series of cases protect the rights during and after the parental leave.14 In the Chatzi case, the nature of the relationship to children is preferred to a view of an individual right of the child to parental leave linked to the birth of twin.15 The gender neutral dimension of care linked to parental rights brings added internal coherence to EU antidiscrimination law to eliminate stereotypical roles. In the Maïstrellis case, the Court noted that ‘the situation of a male employee parent and that of a female employee parent are comparable as regards the bringing-up of children.16 It added that ‘the provisions of Directives 96/34 and 2006/54 must be interpreted as precluding national provisions under which a civil servant is not entitled to parental leave in a situation where his wife does not work or exercise any profession, unless it is considered that due to a serious illness or injury the wife is unable to meet the needs related to the upbringing of the child’.17 More recently, in the Castro case,18 the Court considered the health and safety issues raised in cases where night work could pose a risk for breastfeeding situations of care. Article 19(1) of Directive 2006/54/EC applies to a situation, . . . in which ‘a

13

Case 116/06, Kiiski v Tampereen kaupunki (ECJ 20 September 2007). Equivalent wages, Case 194/08, Gassmayr v Bundesminister für Wissenschaft und Forschung (ECJ 1 July 2010); Case 471/08, Parvianien v Oyj (ECJ 1 July 2010); or equivalent rights after termination rights; Case 116/08, Meerts v Proost NV (ECJ 22 October 2009). 15 The CJEU responded that the rights in the Framework Agreement on parental leave were afforded to parents in their capacity as workers, in order to assist them to reconcile their parental and working responsibilities. There was no right relating to parental leave given to the child, in the Framework Agreement. Case 149/10, Chatzi v Ipourgos Ikonomikon (ECJ 16 September 2010). 16 See judgments in Case 312/86, Commission v France (ECJ 25 October 1988), para. 14; Case 366/99, Griesmar v Ministre de l'Economie (ECJ 6 April 2002), para. 56; Case 559/07, Commission v Greece (ECJ 26 March 2009), para. 69, recalled in Case 222/14, Maïstrellis v Ypourgos Dikaiosynis (ECJ 16 July 2015). 17 Case 222/14, Maïstrellis v Ypourgos Dikaiosynis (ECJ 16 July 2015), para. 57. 18 Case 41/17, Castro v Umivale (ECJ 19 September 2018). 14

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worker, who has been refused a medical certificate indicating the existence of a risk to breastfeeding posed by her work and, consequently, an allowance in respect of risk during breastfeeding, challenges, before a court or other competent authority of the Member State concerned, the risk assessment of her work’. . . The worker must provide ‘factual evidence to suggest that that evaluation did not include a specific assessment taking into account her individual situation and thus permitting the presumption that there is direct discrimination on the grounds of sex, within the meaning of Directive 2006/54’. In sum, grounds of sex discrimination have opened up an array of cases linked to maternity, childrearing and breastfeeding that enrich the relational view of substantive sex equality. This internal coherence in terms of social justice which focuses on the challenges, the barriers of being a working parent rather than the harm by the wrongdoer does not prevent some difficulty for some Members states to understand the external coherence of EU sex discrimination law. The issues arise concerning the protection of the most disadvantaged workers and in relation to the rights offered by the social security systems of Member States.

2.2

The Challenges to an External Coherence of EU Antidiscrimination Law Associated to Sex Discrimination and Parental Rights

In terms of the articulation of social rights linked to parenting for men and women through EU antidiscrimination law, we have noted that a number of cases use a comparability analysis to provide social rights, even breastfeeding leave to men through a functional analysis of care such as in the Roca Alvarez case.19 However, this internal coherence of EU antidiscrimination law has been criticized externally in some Members states as ignoring the relative disadvantage of groups according to their gender or their vulnerability to multiple discrimination. Because of the symmetric dimension of sex discrimination, in the Griesmar20 and Leone21 cases in France, increased rights to pension credit for women have been considered as constituting discrimination against men. As the Court noted in Leone, the debate lies in the positive measures awarded to women which do not give them increased opportunity in employment and in that case fails the proportionality test standard associated to indirect discrimination. The French government and French scholars focused their attention on the increased disadvantage of women whose careers are interrupted during childbearing years more than men. This signifies that, regardless of the coherence of a balanced enforcement of sex discrimination for women and men which conforms to the equal 19

Case 104/09, Roca Alvarez v Sesa Start España ETT SA (ECJ 30 September 2010). Case 366/99, Griesmar v Ministre de l'Economie (ECJ 29 November 2001). 21 Case 199/12 to Case 201/12, X, Y, Z v Minister voor Immigratie en Asiel (ECJ 7 November 2013). 20

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treatment standards of EU law, better communication must be made to States in their pension reforms to explain why equal opportunity of women in employment conditions is linked to equal opportunity in pension rights at the end of women’s career. The second challenge EU antidiscrimination law is to increase its external coherence in considering a structural view of grounds beyond sex. There are numerous cases where the sex component of discrimination cases has not been conflated with the other grounds of discrimination invoked solely by the EUCJ Court.22 For example, in the Coleman case, even though the Court was innovative in pinpointing a new form of discrimination,23 discrimination by association was linked to parenting a child with a disability. The harassment of Ms. Coleman as a parent was also due to the fact she was a single mother working despite her child’s disability. This situation could have been seen as gender discrimination and a form of multiple discrimination based on sex and disability. The directives and the EU Strategy for equality between women and women explicitly mention multiple discrimination but a more structural view of grounds deserves an acknowledgment in the courts of this increased disadvantaged of individuals facing multiple discrimination.24 Internal and external coherence of EU antidiscrimination law might lie not only in a more structural view of certain grounds like sex and parental rights but in gender and sexual orientation discrimination in employment and social cases that grasp more entrenched forms of systemic discrimination in collective norms elaborated by the social partners, beyond the efforts to regulate work life balance through the new directive on conciliation.

3 From a Ban on Discrimination in Collective Norms to a General Framework on Work-Life Balance: A Systemic and Coherent Analysis of EU Equality Law? The coherence of EU antidiscrimination law as a legal framework linked to the structure of the market economy and its collective impact was the first impetus at the creation of the common market.25 The innovation in EU equality case law came later, first, from the judicial scrutiny of collective bargaining agreements and state social schemes that could also entrench discrimination in collective norms (Sect. 3.1). The new wave of collective norms supporting positive obligations,

22

See McColgan (2014), p. 23. See Waddington and Broderick (2018), Combatting disability discrimination and realizing equality, A comparison of the UNCRPD and EU Equality and non-discrimination Law, EU Commission Report, p. 74 24 On the resistance of the Court in sexual orientation cases, see Case 443/15, David L. Parris v Trinity College Dublin and Others (ECJ 24 November 2016). 25 Barnard (2012), p. 254. 23

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including work life balance, is the second systemic dimension of EU equality law (Sect. 3.2). However the challenge, in the future, in terms of external coherence of equality law, lies in supporting collective and diversified negotiation of the social partners on an array of issues including equal opportunity in employment, while acknowledging the risks of excessive deference when norms are produced through collective bargaining (Sect. 3.3).

3.1

The Internal Coherence of EU Law Limiting Systemic Barriers to Employment and Access to Social Rights

The EU framework of rules intended to eradicate the systemic barriers in the market for employment or goods and services, and went beyond singling out individual perpetrators to remedy the harm done to victims.26 The EU model has been about collective discrimination in the sense that it can apply to the evaluation of differences of treatment linked to all types of contracts.27 The structural issue of equal work of equal value epitomizes the systemic nature of this collective standard, inscribed from the outset in the Treaty of Rome.28 European case law face the challenge of claims which are not purely individual because of the influence of collective bargaining, pay scales, welfare systems, and collective redundancy in a number of EU Member States. Through the lens of indirect discrimination, for example, collective practices related to the causes and effects of group discrimination (age cohorts, gender groups, LGBT groups) can be scrutinized. The coherence of the EU case law stems from a systemic judicial analysis at an early stage: ‘it is impossible not to recognize that the complete implementation of the aim pursued by Article 119, by means of the elimination of all discrimination, direct and indirect, between men and women workers, not only as regards individual undertakings but also entire branches of industry and even the economic system as a whole, may in certain cases involve the elaboration of criteria whose implementation necessitates the taking of appropriate measures at Community and national level.29 This method of analyzing the gender pay gap gradually became more elaborate in scrutinizing a sex segregated workforce. In the Rummler case,30 the Court was asked whether a job classification system based on muscular effort was contrary to Directive 75/117/ EEC. The Court acknowledged that muscular effort or the heaviness of the work seemed more characteristic of men and it recognized that ‘the principle of equal pay requires essentially that the nature of the work to be carried out be considered objectively. Consequently, the same work or work to

26

Mercat-Bruns (2018), p. 1; Dreano (2018), p. 24. Case 236/09, Association Belge des Consommateurs Test-Achats ASBL and Others v Conseil des ministers (ECJ 1 March 2011). 28 Art. 119 EEC. 29 Case 43/75, Defrenne v Sabena (ECJ 8 April 1976), para. 1. 30 Case 237/85, Gisela Rummler v Dato-Druck GmbH (ECJ 1 July 1986). 27

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which equal value is attributed must be remunerated in the same manner whether it is carried out by a man or a woman. Where a job classification system is used in determining remuneration, that system must be based on criteria which do not differ according to whether the work is carried out by a man or a woman and must not be organized, as a whole, in such a manner that it has the practical effect of discriminating generally against workers of one sex.’31 A system which relied on the average performance of one sex to determine the values in the system itself could not be justified. The structural disparities in wages linked to the nature of the work (part time or full time) were also uncovered by the ECJ in the Jenkins case32 which recognized the disproportionate number of women working part time. This case on indirect discrimination concerned the pay applicable to part-time work contracts, which was set 10% lower than the rate applicable to full-time contracts regardless of the quality and the nature of the job, in order to ‘objectively’ combat absenteeism and to encourage productivity and the full use of machinery. However, this difference in treatment linked to working time reflected, as early as 1981, a general means of organization of the clothing manufacturer and exposed a structural cause and effect of sex discrimination. In the more recent Kalliri case,33 the EUCJ denounced an apparently neutral height requirement to enter in the competition for the recruitment as a police officer. Again, the concept of indirect discrimination served to show this systemic collective practice in a specific male dominated job sector. Through the proportionality test, the judges were even able to suggest alternatives to systemic exclusion of women through other selection processes: ‘In any event, the aim pursued by the law at issue in the main proceedings could be achieved by measures that are less disadvantageous to women, such as a preselection of candidates to the competition for entry into Schools for Police Officers and Policemen based on specific tests allowing their physical ability to be assessed.’34 In the Brachner case,35 the ECJ grasped, through the same coherent view of indirect discrimination as systemic discrimination, exposing the discriminatory management of welfare system schemes creating a disadvantage for women. The question was whether a pension reform which separately increased all pensions, except the lowest ones, disproportionately affected women who benefited from lower retirement benefits, thereby constituting indirect sex discrimination. ‘Article 4(1) of Directive 79/7/EEC of 1978 must be interpreted as meaning that if (. . .) a significantly higher percentage of female pensioners than male pensioners may in fact have suffered a disadvantage because of the exclusion of minimum pensions from the exceptional increase provided for by the adjustment scheme at issue (. . .) that disadvantage cannot be justified by the fact that women who have worked

31

Case 237/85, Gisela Rummler v Dato-Druck GmbH (ECJ 1 July 1986). Case 96/80, Jenkins v Kingsgate (ECJ 31 March 1981). 33 Case 409/16, Kalliri v Ypourgos Esoterikon (ECJ 18 October 2017). 34 Case 409/16, Kalliri v Ypourgos Esoterikon (ECJ 18 October 2017), para. 42. 35 Case 123/10, Brachner v Pensionsversicherungsanstalt (ECJ 20 October 2011). 32

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become entitled to a pension at an earlier age or that they receive their pension over a longer period, or because the compensatory supplement standard amount was also subject to an exceptional increase in (. . .) 2008.’36 The same coherent judicial scrutiny of collective norms is present with regard to systemic direct discrimination based on sexual orientation as attested in different emblematic cases. Two concerned direct discrimination against gay couples to access pension rights (spousal) in the Maruko case,37 or amount of pension in the Röhmer case.38 In the Hay case,39 the Court directly questioned the relevance of a categorization based on marital status in a collective bargaining agreement if the outcome excluded systematically gay couples from benefiting from a social right, before the French same sex marriage was adopted through legislation.40 The Court uses a systemic approach by targeting the direct barrier to access a right beyond the claim the categorization was not explicitly based on sexual orientation.41

3.2

The Internal Coherence of EU Antidiscrimination Law Expanding the Structural Dimension of Positive Action

In EU law, the concepts of direct and indirect discrimination are excellent tools to expose discrimination linked to different grounds in very different contexts as shown

36

Case 123/10, Brachner v Pensionsversicherungsanstalt (ECJ 20 October 2011), para. 3. Case 267/06, Maruko v Versorgungsanstalt der deutschen Bühnen (ECJ 1 April 2008): considerations of social policy, of State organisation, of ethics, or even the budgetary concerns which influenced or may have influenced the establishment by the national legislature of a scheme cannot prevail if the pension concerns only a particular category of workers, if it is directly related to the period of service completed and if its amount is calculated by reference to the last salary (Case 7/93, Beune v Bestuur van het Algemeen burgerlijk pensioenfonds (ECJ 28 September 1994), para. 45; Case 147/95, Evrenopoulos v DEI (ECJ 17 April 1997), para. 21; Case 366/99, Griesmar v Ministre de l'Economie (ECJ 6 April 2002), para. 30; Case 351/00, Niemi (ECJ 12 September 2002), para. 47; Case 4/02, Schönheit v Stadt Frankfurt am Main and Case 5/02, Becker v Land Hessen (ECJ 23 October 2003), para. 58. 38 Case 147/08, Römer v Hansestadt Hamburg (ECJ 10 May 2011). 39 Case 267/12, Frédéric Hay v Crédit Agricole Mutuel de Charente-Maritime et des Deux-Sévres (ECJ 12 December 2013). 40 Case 267/12, Frédéric Hay v Crédit Agricole Mutuel de Charente-Maritime et des Deux-Sévres (ECJ 12 December 2013), para. 44: ‘The difference in treatment based on the employees’ marital status and not expressly on their sexual orientation is still direct discrimination because only persons of different sexes may marry and homosexual employees are therefore unable to meet the condition required for obtaining the benefit claimed.’. 41 The request for preliminary review by the French Supreme Court was based on indirect and not direct discrimination. 37

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in the Chez42 or Mangold cases. Each of these concepts can detect systemic discrimination when differential treatment has a wide effect on a group. However, direct and indirect discrimination serve as specific tools to remedy past discrimination in legal disputes but do not necessarily create an impetus to eliminate systemic discrimination without a specific agenda to achieve substantive gender equality in the future. The acceptance of the idea of systemic discrimination and its use to evaluate organizations or practices require a form of adjustment to compensate deep-rooted inequalities in the future. Direct and indirect discrimination do not necessarily require positive action as a sanction, apart from individual instances of reasonable accommodation, because the goal is to stop the difference of treatment or to stop using apparently neutral but in fact discriminatory criteria, provisions or practices. By contrast, systemic discrimination cannot be stopped by inaction or exclusively individual financial sanctions.43 Confronting systemic discrimination requires structural changes for groups at different levels through positive action both from policy makers and from judges who issue injunctions for positive action in class action suits. No action actually perpetuates systemic discrimination that is inherent in the access, selection and evaluation of persons in employment. Coherence of EU equality law on this point, despite a relatively narrow interpretation of positive action44 stems from early initiatives supporting gender mainstreaming and the current directive on work life balance. In both instances, the approach is to think of how policy making in legislation and in company practices are conceived through changes in modes of organizations. In gender mainstreaming, all policies must integrate issues of equality as soon as they are conceived whether in housing, employment or welfare rights. In this way, inclusion is an integral part of the policy design and avoids the stigma associated with a specific gender focus of a policy. Concerning the Work Life Balance (WLB) Directive, passed in the European Parliament in April,45 it allows to support systemically workers and families by strengthening existing outdated as well as new rights on parental leave, paternity leave at the birth of a child, carers leave, flexible working arrangement. The Directive allows parents and people with caring responsibilities to reconcile better their work and caring duties as an integral step for gender

42

Case 83/14, CHEZ Razpredelenie Bulgaria’ AD v Komisia za zashtita ot diskriminatsia (ECJ 16 July 2015). 43 Sheppard (2010) and Green (2016). 44 See EU case law Abrahamsson, standard for positive action Case 407/98, Abrahamsson v Fogelqvist (ECJ 6 July 2000); see Mercat-Bruns (2016), p. 35. 45 European Parliament legislative resolution on the proposal for a directive of the European Parliament and of the Council on work-life balance for parents and carers and repealing Council Directive 2010/18/EU (2019). www.europarl.europa.eu/doceo/document/TA-8-2019-0348_EN. html.

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substantive equality.46 The approach is structural in the way the directive addresses the recurring indirect risk of employment discrimination against care takers during their career after the leave: ‘Leave arrangements are intended to support workers who are parents, and carers during a specific period of time, and aim to maintain and promote the workers’ continued attachment to the labour market. It is therefore appropriate to make express provision for the protection of the employment rights of workers who take the types of leave covered by this Directive. In particular, this Directive protects the right of workers to return to the same or to an equivalent post after taking such leave and the right not to be subject to any detriment in the terms and conditions of their contract of employment or employment relationship as a result of taking such leave. Workers should retain their entitlement to relevant rights that are already acquired, or that are in the process of being acquired, until the end of such leave.’47

3.3

The Challenges of the External Coherence of EU Antidiscrimination Law: Linking Collective Equality Rights to the Broader Framework of Social Rights

The internal coherence of EU antidiscrimination law as illustrated in case law and new collective norms which grasp systemic discrimination should not conceal the persistent risk of discrimination still involved in deferring to the social partners for the elaboration of collective rights. First EU case law, in accordance with the promotion of European collective bargaining, which is inscribed in the Lisbon Treaty, has recognized a form of deference to the social partners in equality law.48 In Member states, such as France, until recently, there was even a presumption of legitimate justification for differences of treatment agreed upon in collective bargaining agreements, outside of judicial scrutiny of agreements which directly referred to prohibited grounds of discrimination.49 The external coherence of collective bargaining as a whole in each Member states contributes to the coherence of collective bargaining agreements in terms of

46 The Directive will bring new rights in many European countries including: 10 days paternity leave around the birth of a child and paid at sick-leave level; 5 days carers leave—although unfortunately without any obligation for the leave to be paid; the right for parents and carers to request flexible working arrangements to which employers must respond and provide a justification. 47 European Parliament legislative resolution of 4 April 2019 on the proposal for a directive of the European Parliament and of the Council on work-life balance for parents and carers and repealing Council Directive 2010/18/EU (2019), para. 38. 48 See Case 411/05, Palacio v Cortefiel Servicios SA (ECJ 16 October 2007). 49 Presumption recently reversed based on the shift of the burden of proof in EU equality law, Cour de cassation 3 April 2019 n 17-11.970), see www.courdecassation.fr/jurisprudence_2/chambre_ sociale_576/558_3_41900.html.

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equality rights.50 Agreements based on a majority of votes of union members can pose the inherent systemic risk of ignoring rights of some minority groups as illustrated in countries outside the EU.51 Secondly, there is an acute need to consider that EU equality law, to consolidate further its external coherence, must ensure a proper articulation between equality in collective bargaining agreements and the safeguard of other social rights (worktime, pay, health and security issues, annual leave. . . .) Unfortunately, in the recent Maria Dicu case,52 the Court allows Member States like Romania to decide that a period of parental leave does not count as a period of actual work for the purpose of determining a worker’s paid annual leave entitlement under the Working Time Directive. The CJEU’s approach denies the fundamental social right to paid annual leave. The CJEU recognises that parental leave does not alter Ms Dicu’s status as a worker.53 If the right to paid annual leave is, as the CJEU has previously suggested, a social right which is conferred directly and automatically on an individual by virtue of their status as a worker then it should be granted to Ms Dicu as long as she retains that status. In the Dominguez case,54 the CJEU confirmed that there was no requirement for actual work to be entitled to annual leave. Since the right to parental leave, does not affect the status as a worker, there should be no need for actual work before a worker is entitled to annual leave. By requiring actual work, the CJEU has imposed preconditions on the right to paid annual leave in a restrictive approach which is far from its systemic interpretation of parental rights.

4 Conclusion Analysis of EU antidiscrimination law maps out the ambivalence of EU law in general. On the one hand, coherent and innovative case law on parental rights and indirect discrimination have set out the framework for a systemic reading of practices in employment that might perpetuate structural inequality by lack of flexibility, monitoring and inclusive policies for parental and LGBT rights and extension of social rights. On the other hand, there seems to be a lack of external coherence of EU antidiscrimination law in situations of extreme disadvantage (case of multiple discrimination) and sometimes a lack of coordination with the labor policies of Member states. Moreover, the directive on Work life balance which consolidates a

50

O’Cinneide (2006), p. 57. See in the US, the past experience of unequal representation in collective bargaining agreements which discriminated against blacks, Steele v Louisville, US Supreme Court. 52 Case 12/17, Dicu v Ministerul Justiţiei and Tribunalul Botoşani (ECJ 4 October 2018). 53 Case 12/17, Dicu v Ministerul Justiţiei and Tribunalul Botoşani (ECJ 4 October 2018), para. 35. 54 Case 282/10, Maribel Dominguez gegen Centre informatique du Centre Ouest Atlantique (ECJ 24 January 2012). 51

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systemic discrimination to care contrast with the EU policy on other grounds of discrimination such as origin and race which remains to this day at a standstill.

References Barnard, Catherine. 2012. EU Employment Law. Oxford: Oxford University Press. Dreano, Maëlle. 2018. La non-discrimination en droit des contrats. Paris: Dalloz. Green, Tristin. 2016. Discrimination Laundering: The Rise of Organizational Innocence and the Crisis of Equal Opportunity Law. Cambridge: Cambridge University Press. McColgan, Aileen. 2014. Discrimination, Equality and the Law. Oxford: Hart-Publishing. Mercat-Bruns, Marie. 2016. Discrimination at Work: Comparing French, European and American Law. Berkeley: University of California Press. Mercat-Bruns, Marie, Oppenheimer David, and Sartorius Cady. 2018. Comparative Perspectives on the Enforcement and Effectiveness of Antidiscrimination Law. Heidelberg: Springer. Neuvonen, Päivi Johanna. 2016. From a ‘Relative’ to a ‘Relational’ Equality: Rethinking Comparability in the Light of Relational Accounts of Social Justice. In Equal Is Not Enough, ed. Daniël Cuypers and Jogchum Vrielink, 135–153. Antwerp: Intersentia. O’Cinneide, Colm. 2006. Fumbling Towards Coherence: The Slow Evolution of Equality and Antidiscrimination Law in Britain. Northern Ireland Law Quarterly 57: 57. Sheppard, Colleen. 2010. Inclusive Equality. Sherbrooke: McGill Press. Waddington, Lisa, and Andrea Broderick. 2018. Combatting Disability Discrimination and Realizing Equality, A Comparison of the UNCRPD and EU Equality and Non-Discrimination Law, EU Commission Report. Brussels: European Commission.

Marie Mercat-Bruns is Affiliated Professor Sciences Po Law School and Member CNAM LISE CNRS

Genuine and Determining Occupational Requirement as an Exception to the Prohibition of Discrimination in EU Law Justyna Maliszewska-Nienartowicz

Contents 1 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 The Legal Context . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 The Conditions for Application of the Exception . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.1 General Remarks . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.2 Scope . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.3 Characteristic Related to the Protected Ground Constituting a Genuine and Determining Occupational Requirement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.4 A Legitimate Objective and Proportionality . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 Conclusions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

200 200 202 202 204 207 211 215 216

Abstract This chapter presents the EU legal regulations and the case law of the Court of Justice concerning genuine occupational requirements. According to the Anti-Discrimination Directives, this exception can be invoked in relation to all the grounds protected under EU law. However, the Court of Justice jurisprudence has focused mainly on two of them, namely sex and age. This can change in future as in Bougnaoui (Case C-188/15, Asma Bougnaoui and Association de défense des droits de l’homme (ADDH) v Micropole SA (ECJ 14 March 2017)) it also referred to this exception in the framework of discrimination on the grounds of religion. All of the cases show that the concept of ‘a genuine and determining occupational requirement’ is interpreted in a strict manner. Moreover, the proportionality of measures applied seems to play a decisive role in the assessment of the Court if the exception has rightly been invoked in the particular circumstances of a case. Unfortunately, the degree of its scrutiny varies, so it is a case-by-case analysis based on individual situations.

J. Maliszewska-Nienartowicz (*) Nicolaus Copernicus University in Toruń, The Faculty of Political Science and Security Studies, Toruń, Poland e-mail: [email protected] © Springer Nature Switzerland AG 2020 T. Giegerich (ed.), The European Union as Protector and Promoter of Equality, European Union and its Neighbours in a Globalized World 1, https://doi.org/10.1007/978-3-030-43764-0_10

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1 Introduction The prohibition of discrimination in EU law is not absolute. Consequently, in particular situations, usually exhaustively listed in the Treaties or the EU AntiDiscrimination Directives, differential treatment is recognised as acceptable. A possible defence can be phrased in general or more specific terms—therefore the general and specific exceptions to the prohibition of discrimination are distinguished. Positive actions and reasonable accommodation for disabled persons can also bring about differential treatment but their objective is to ensure full equality in practice. They are undertaken to prevent or compensate for disadvantages linked to any of the grounds protected under EU law so they should not be treated strictly as exceptions to the prohibition of discrimination but rather as its acceptable justifications. Genuine and determining occupational requirement can be treated as a specific exception because it focuses on the nature of the particular occupational activities concerned or the specifics of the context in which they are carried out. On the other hand, it can be applied to virtually all the grounds protected under EU law1 both in relation to direct and indirect discrimination.2 Moreover, this exception has a dynamic character as the approach to what constitutes genuine and determining occupational requirements has changed over time, e.g. in relation to professional activities which should be undertaken only by men. Consequently, legal provisions in this area and the case law of the Court of Justice are also subject to constant evolution. The aim of this chapter is to present the currently binding EU regulations and the most important decisions of the Court of Justice that indicate how to interpret the former.

2 The Legal Context The concept of genuine occupational requirement was originally introduced in relation to sex discrimination. The original Article 2 (2) of Council Directive 76/2073 predicted that: This directive shall be without prejudice to the right of Member States to exclude from its field of application those occupational activities and, where appropriate, the training leading thereto, for which, by reason of their nature or the context in which they are carried out, the sex of the worker constitutes a determining factor.

1

Muir (2015), p. 935. Maliszewska-Nienartowicz (2014), pp. 43–44. 3 Council Directive 76/207/EC 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, OJ L 39/40-42 (1976). 2

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At the same time, however, Article 9 (2) of this Directive obliged the Member States to periodically assess such occupational activities in order to decide, in the light of social developments, whether there is justification for maintaining the exclusions concerned. Moreover, they were to notify the Commission of the results of this assessment. Thus, from the very beginning it was recognised that the genuine occupational requirement is an evolving concept, which is liable to alter as social and cultural attitudes change.4 A good example in this field is the approach towards the profession of midwife. The Court of Justice in Commission v. United Kingdom5 accepted that “at the present time personal sensitivities may play an important role in relations between midwife and patient”. Consequently, it stated that it was legitimate to restrict the role of midwife only to women. However, in 2000 the Commission reported that the profession of midwife was fully open to men in all the Member States.6 Interpreted together, these provisions of Directive 76/207 seemed to indicate that the exception based on genuine occupational requirements should be applied in extremely rare situations. Moreover, the Court of Justice in its case law emphasised that if the competent national authorities referred to Article 2 (2) of Directive 76/207, they should have taken into account the principle of proportionality. Therefore, the Anti-Discrimination Directives adopted in 20007 provide for more precise regulations regarding genuine and determining occupational requirements which directly refer to proportionality. Similarly, the currently binding provisions on sex discrimination contained in the Council Directive 2006/54/EC8 reflect the case law of the Court of Justice. According to the provisions of these Anti-Discrimination Directives9: Member States may provide that a difference in treatment based on a characteristic related to [the protected ground such as sex, racial or ethnic origin, religion or belief, disability, age or sexual orientation – explanation added] shall not constitute discrimination where, by reason of the nature of the particular occupational activities concerned or of the context in which

4

Pitt (2009), p. 3. Case 165/82, Commission of the European Communities v United Kingdom of Great Britain and Northern Ireland (ECJ 8 November 1983). 6 Proposal for a Directive of the European Parliament and of the Council 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, COM (2000) 334 final of 11 July 2000, OJ C 337 E/204 (2000). 7 Council Directive 2000/43/EC implementing the principle of equal treatment between persons irrespective of racial or ethnic origin, OJ L 180/22-26 (2000); Council Directive 2000/78/EC establishing a general framework for equal treatment in employment and occupation, OJ L 303/1622, (2000). 8 Council Directive 2006/54/EC on the implementation of the principle of equal opportunities and equal treatment of men and women in matters of employment and occupation, OJ L 204/23-36 (2006). 9 See Art. 4 (1) of Directive 2000/43, Art. 4 (1) of Directive 2000/78 and Art. 14 (2) of Directive 2006/54. 5

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they are carried out such a characteristic constitutes a genuine and determining occupational requirement, provided that the objective is legitimate and the requirement is proportionate.

Thus, the regulation is only destined to cover exceptional cases in which there is a unique match between certain characteristics, a suspect ground and the nature of a position.10 It is also underlined that the exception for genuine occupational requirements now appears as a qualification to the basic principle of equal treatment, rather than as a freestanding exemption.11 Its restricted scope is also emphasised in the provisions of the Anti-Discrimination Directives. According to the recital 18 of the Preamble of Directive 2000/43 and the recital 23 of the Preamble of Directive 2000/ 78 “in very limited circumstances, a difference of treatment may be justified where a characteristic related to [the protected ground such as racial or ethnic origin, religion or belief, disability, age or sexual orientation – explanation added] constitutes a genuine and determining occupational requirement, when the objective is legitimate and the requirement is proportionate. Such circumstances should be included in the information provided by the Member States to the Commission”. A similar reservation is made in the recital 19 of the Preamble of Directive 2006/54 which underlines that “ensuring equal access to employment and the vocational training leading thereto is fundamental to the application of the principle of equal treatment of men and women in matters of employment and occupation. Any exception to this principle should therefore be limited to those occupational activities which necessitate the employment of a person of a particular sex by reason of their nature or the context in which they are carried out, provided that the objective sought is legitimate and complies with the principle of proportionality”. Apart from that, Article 31 (3) of Directive 2006/54 maintains the obligation of the Member States to assess occupational activities in the light of social developments and to notify the Commission of the results of this assessment periodically, but at least every 8 years. Directives 2000/ 43 and 2000/78 do not predict such a specific obligation for a periodic assessment of the exclusions based on their Articles 4 (1) but only a general reporting duty every 5 years.

3 The Conditions for Application of the Exception 3.1

General Remarks

First of all, it should be noted that, as all exceptions to the right to equal treatment, also the concept of genuine and determining occupational requirements should be interpreted in a strict way. This has been underlined in practically all the cases concerning both Directive 76/207 and the currently binding Anti-Discrimination

10 11

Muir (2015), p. 936. Pitt (2009), p. 2.

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Directives. As early as in Johnston,12 the Court noticed that the provision of Article 2 (2) of Directive 76/207 must be interpreted strictly as it constituted a derogation from an individual’s right to equal treatment. In relation to Directive 2000/78, a similar position was taken e.g. in Prigge13 and Pérez14 where it was emphasised that “in so far as it allows a derogation from the principle of non-discrimination, Article 4 (1) of that Directive15 must be interpreted strictly”. Advocate General J. Sharpston in her opinion in Bougnaoui16 rightly pointed out that “the narrowness of the derogation is reflected in the wording of Article 4 (1). Not only must the occupational requirement be ‘genuine’, it must also be ‘determining’. That means (...) that the derogation must be limited to matters which are absolutely necessary in order to undertake the professional activity in question”. Secondly, exception based on genuine and determining occupational requirements should be transparent so that the European Commission’s supervision could be effective. This element was referred to by the Court particularly in the case law concerning Directive 76/207. In Commission v. Germany,17 the latter was accused of not adopting the necessary measures to create even a minimum of transparency with regard to the application of Article 2 (2) and Article 9 of Directive No 76/207. In the Court’s view the Federal Republic of Germany “has thus prevented the Commission from exercising effective supervision and has made it more difficult for any persons wronged by discriminatory measures to defend their rights”. This general requirement was repeated in Commission v. France,18 where it was emphasised that the exceptions provided for in Article 2 (2) must be sufficiently transparent so as to permit effective supervision by the Commission. French law was incompatible with this condition as institutions operating under the system of separate recruitment according to sex included inter alia the five corps of the national police force, and the fixing of percentages of posts to be allotted to men and women respectively was not governed by any objective criterion defined in a legislative provision. Moreover, the contested system of recruitment made it impossible to exercise any form of supervision, not only by the Commission and the courts but also by persons adversely affected by discriminatory measures. Consequently, the Court ruled that the French Republic had failed to fulfil its obligations under the Treaty. This clearly shows that the requirement of transparency is an important element which should be taken into account by the national authorities or employers when they refer to the concept of

12

Case 222/84, Marguerite Johnston v Chief Constable of the Royal Ulster Constabulary (ECJ 15 May 1986). 13 Case C-447/09, Reinhard Prigge and Others v Deutsche Lufthansa AG (ECJ 13 September 2011). 14 Case C-416/13, Mario Vital Pérez v Ayuntamiento de Oviedo (ECJ 13 November 2014). 15 Council Directive 2000/78/EC—explanation added. 16 Case C-188/15, Asma Bougnaoui and Association de défense des droits de l’homme (ADDH) v Micropole SA (ECJ 14 March 2017), para. 92. 17 Case 248/83, Commission of the European Communities v Federal Republic of Germany (ECJ 21 May 1985). 18 Case 318/86, Commission of the European Communities v French Republic (ECJ 30 June 1988).

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genuine and determining occupational requirements. In particular, they should explain why it is necessary to apply this exception to particular occupational activities. Thirdly, according to the provisions of the Anti-Discrimination Directives, the genuine and determining occupational requirements “may be provided” so they are permissive, not mandatory. In other words, there is no need for Member States to use this facility at all.19 The Court of Justice in Commission v. Germany20 concerning Directive 76/207 stressed that “the purpose of Article 2 (2) is not to oblige but to permit the Member States to exclude certain occupational activities from the field of application of the directive. That provision does not have as its object or as its effect to require the Member States to exercise that power of derogation in a particular manner (...)”. This general statement can also be applied in reference to the currently binding regulations of the Anti-Discrimination Directives on genuine occupational requirements. According to them, application of this exception is subject to four basic conditions: • employers are allowed to differentiate individuals only if it is necessary because of the nature of the particular occupational activities concerned or of the context in which they are carried out; • the difference in treatment is based on a characteristic related to the protected ground such as sex, racial or ethnic origin, religion or belief, disability, age or sexual orientation, not the ground itself; • such a characteristic constitutes a genuine and determining occupational requirement, for example physical fitness, which may be related to age; • the objective of differential treatment is lawful and the requirement proportionate. All of them are presented in the following sections of the chapter.

3.2

Scope

The first condition is important for the scope of the general genuine occupational requirement. In this regard, however, there are certain differences between the AntiDiscrimination Directives. According to Article. 14 (2) of Directive 2006/54, this exception no longer applies to occupational activities in general, but only to the access to employment and training for particular occupational activities. Their nature or the context in which they are carried out may be taken into account.21 Directives 2000/43 and 2000/78 do not contain a similar reservation, which means that the

19

Pitt (2009), p. 3. Case 248/83, Commission of the European Communities v Federal Republic of Germany (ECJ 21 May 1985). 21 Burri (2006), p. 2. 20

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scope of application of the exception is broader and covers occupational activities as such, including dismissal. It should also be noted that Member States are allowed to exclude the armed forces from the scope of application of Directive 2000/78 in so far as it relates to discrimination on the grounds of disability and age.22 In other words, it is acceptable to introduce limitations and even exclusions in employment in this sector of people of a certain age or with a given degree of disability. The recital 19 of the Preamble of Directive 2000/78 explains that this regulation is dictated by the need to safeguard the combat effectiveness of their armed forces and that the Member States which decide for the derogation must define its scope. Nevertheless, this provision considerably restricts the protection which the Framework Directive can provide against discrimination on the grounds of disability or age.23 Apart from the armed forces also the police, prison or emergency services and other similar services can be treated by the Member States in a special way. The recital 18 of the Preamble of Directive 2000/78 makes it clear that in these sectors it is not necessary “to recruit or maintain in employment persons who do not have the required capacity to carry out the range of functions that they may be called upon to perform with regard to the legitimate objective of preserving the operational capacity of those services”. This means that the need for the proper functioning of the armed forces, the police, the prison or emergency services and so on can prevail over the equal treatment of the candidates, provided that the applied means are proportionate to that aim. In any case the exception based on a genuine and determining occupational requirement can be applied only when it is possible to prove a relation between the job in question and the required characteristic.24 The Anti-Discrimination Directives refer to “the nature of the particular occupational activities concerned or of the context in which they are carried out”. These are two alternatives which can be referred to by the employer and the difference between them was underlined in the case law of the Court of Justice. This can be illustrated by Johnston25 which concerned the decision of the Chief Constable of the Royal Ulster Constabulary that general police duties, frequently involving operations requiring carrying of firearms, should no longer be assigned to women, and as a result full-time contracts for women in the RUC would not be offered or renewed any more. The Court in its judgment stated that with regard to employment in the police no distinction is made between men and women; therefore the nature of the occupational activity is not a relevant ground of justification for the discrimination. However, the question was if, owing to the specific context in which the activity was carried out, the sex of the person constituted a determining factor. The Court underlined that that context “is determined by the environment in which that activity is carried out”. Consequently,

22

Art. 3 (4). Burri (2006), p. 3. 24 Łopatowska (2009), p. 82. 25 Case 222/84, Marguerite Johnston v Chief Constable of the Royal Ulster Constabulary (ECJ 15 May 1986). 23

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it accepted that in a situation characterised by serious internal disturbances carrying of fire-arms by policewomen might create additional risks of their being assassinated and the context of certain policing activities might be such that the sex of police officers constitutes a determining factor in carrying them out. The specific nature of the occupational activities was taken into account by the Court in Sirdar26 where one of the questions was whether the exclusion of women from service in combat units such as the Royal Marines could be justified under Article 2 (2) of Directive 76/207. In the Court’s view, “national authorities have a certain degree of discretion when adopting measures which they consider to be necessary in order to guarantee public security in a Member State”. The Royal Marines served this purpose and their organisation differed fundamentally from that of other units in the British armed forces as they were intended to be the first line of attack. Therefore, the Court came to the conclusion that the specific conditions for deployment of the assault units of which the Royal Marines were composed, and in particular the rule of interoperability to which they were subject, justified their composition remaining exclusively male. Such a decision was taken although the Court did not investigate in details whether women in fact could not perform the required role in the Royal Marines. In this case we can surely find an element of gender stereotyping about the compatibilities of women compared with men, so it has been criticised by some commentators.27 The Court abandoned this position in Kreil v. Germany28 which, however, differed from Sirdar as the limitation of women’s access to military posts in the Bundeswehr covered any positions involving the use of weapons. This had a great impact on the final decision. The Court emphasised firstly that “the derogations provided for in Article 2 (2) of the Directive can apply only to specific activities” and secondly that the general policy of the national authorities that the composition of all armed units in the Bundeswehr had to remain exclusively male contravened the principle of proportionality. Thus, German position was not accepted mainly because of its blanket nature.29 On the whole it should be noted that under Directive 76/207 the Court recognised that sex might be a determining factor for posts such as prison warders and head prison warders,30 for police activities performed in situations where there were serious internal disturbances31 or for service in certain special combat units.32

26 Case C-273/97, Angela Maria Sirdar v The Army Board and Secretary of State for Defence (ECJ 26 October 1999). 27 Pitt (2009), p. 5. 28 Case C-285/98, Tanja Kreil v Bundesrepublik Deutschland (ECJ 11 January 2000). 29 Canor (2002), p. 136. 30 Case 318/86, Commission of the European Communities v French Republic (ECJ 30 June 1988). 31 Case 222/84, Marguerite Johnston v Chief Constable of the Royal Ulster Constabulary (ECJ 15 May 1986). 32 Case C-273/97, Angela Maria Sirdar v The Army Board and Secretary of State for Defence (ECJ 26 October 1999).

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However, the provisions concerning genuine occupational requirements were significantly changed by Directive 2006/54. Therefore, although the general approach of the Court towards the interpretation of “the particular occupational activities concerned or of the context in which they are carried out” as two alternatives is maintained, the conclusion with regard to the possibility of the application of the exception based on genuine occupational requirements can be different. The main reason for this is that according to the regulation of Article 14 (2) of Directive 2006/ 54 not the sex of the worker but a characteristic related to sex should be taken into account. Consequently, women cannot generally be excluded from certain posts or activities, but is should be indicated that the exclusion is based on the lack of a certain characteristic, for example physical fitness.

3.3

Characteristic Related to the Protected Ground Constituting a Genuine and Determining Occupational Requirement

As it was mentioned above, according to all the Anti-Discrimination Directives it is not the ground on which the difference of treatment is based but a characteristic related to that ground which must constitute a genuine and determining occupational requirement. This has been underlined by the Court of Justice in many cases—for the first time in relation to age in Wolf,33 later on in cases concerning sex34 and religion.35 The first of them concerned a national measure setting a maximum age of 30 years for the recruitment of officials to posts in the fire service. The Court of Justice agreed that the activities of persons in the intermediate career of the fire service were characterised by their physical nature. As a result, the possession of especially high physical capacities might be regarded as a genuine and determining occupational requirement within the meaning of Article 4 (1) of Directive 2000/78 in relation to carrying on the occupation by such persons. However, a question arose whether the need to possess high physical capacities was related to age. The German government “produced scientific data deriving from studies in the field of industrial and sports medicine which showed that respiratory capacity, musculature and endurance diminish with age. Thus very few officials over 45 years of age have sufficient physical capacity to perform the fire-fighting part of their activities. As for rescuing persons, at the age of 50 the officials concerned no longer have that capacity”.36 On the basis of these data the Court came to the

33

Case C-229/08, Colin Wolf v Stadt Frankfurt am Main (ECJ 12 January 2010). Case C-595/12, Loredana Napoli v Ministero della Giustizia — Dipartimento dell’Amministrazione penitenziaria (ECJ 6 March 2014). 35 Case C-188/15, Asma Bougnaoui and Association de défense des droits de l’homme (ADDH) v Micropole SA (ECJ 14 March 2017). 36 Case C-229/08, Colin Wolf v Stadt Frankfurt am Main (ECJ 12 January 2010), para. 41. 34

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conclusion that the need to possess full physical capacity to carry on the occupation of a person in the intermediate career of the fire services was related to the age of that person. Moreover, it was the length of possible service that could be obtained which seemed decisive—the older the worker, the fewer years available at the peak of physical capacities would happen and this would not be helpful in the functioning of the fire service.37 It is difficult to argue with this conclusion; however, the Court did not appear to question whether the rule applied a generalised characteristic associated with age, but rather to accept that it was enough that most people would not be able to sustain the physical demands of being a fire fighter.38 Therefore, the decision taken in Wolf has been criticised in the literature as an example of an approach where capacity to do a job was not assessed in an individual way.39 The Court had tried to change this general approach into a more individual one in the subsequent case law concerning age limits for the recruitment of officials to certain posts such as local police. However, it has maintained the position that the possession of particular physical capacities is a characteristic relating to age.40 The need to show that a characteristic related to sex, not the sex itself constitutes a genuine and determining occupational requirement was underlined in Napoli.41 Firstly, the Court of Justice established that article 14 (2) of Directive 2006/54 was not applicable to national legislation, which did not limit a specified activity solely to male workers but delayed access to that activity for female workers who had been unable to receive full vocational training as a result of compulsory maternity leave. Secondly, it emphasised that as a derogation from an individual right this provision must be interpreted strictly. Finally, the Court noted that “in the dispute in the main proceedings, it is neither put forward nor even alleged that under the applicable national provisions a characteristic related to sex constitutes a genuine and determining occupational requirement in order to be able to perform that function”.42 This clearly shows that the application of this exception depends on establishing that a particular characteristic is important to carry on the occupation, for example authenticity of appearance in relation to acting, dancing, singing, artistic or fashion modelling etc. As early as in Commission v. Germany,43 the Court of Justice noted that the laws and practices of Member States were similar with regard

37

Sargeant (2013), p. 415. Sargeant (2013), p. 415. 39 See Barnard (2012), p. 370. 40 See for example Case C-447/09, Reinhard Prigge and Others v Deutsche Lufthansa AG (ECJ 13 September 2011), para. 67; Case C-416/13, Mario Vital Pérez v Ayuntamiento de Oviedo (ECJ 13 November 2014), para. 36; or Case C-258/15, Gorka Salaberria Sorondo v Academia Vasca de Policía y Emergencias (ECJ 15 November 2016), para. 34. 41 Case C-595/12, Loredana Napoli v Ministero della Giustizia — Dipartimento dell’Amministrazione penitenziaria (ECJ 6 March 2014). 42 Case C-595/12, Loredana Napoli v Ministero della Giustizia — Dipartimento dell’Amministrazione penitenziaria (ECJ 6 March 2014), para. 42, emphasis added. 43 Case 248/83, Commission of the European Communities v Federal Republic of Germany (ECJ 21 May 1985), para. 34. 38

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to this kind of occupations. Taking into account that authenticity of appearance is a characteristic related to sex, it can constitute a genuine and determining occupational requirement for such particular professions also under the provision of article 14 (2) of Directive 2006/54. Another issue was posed in Bougnaoui.44 Here, the Court of Justice had to answer the question whether the willingness of an employer to take account of the wishes of a customer no longer to have that employer’s services provided by a worker wearing an Islamic headscarf constituted a genuine and determining occupational requirement. Similarly as in previous cases concerning discrimination based on age and sex, the Court underlined that not the ground on which the difference of treatment was based but a characteristic related to that ground had to constitute a genuine and determining occupational requirement. Moreover, it was emphasised that according to the recital 23 of the preamble of Directive 2000/78, a characteristic related to religion may constitute a genuine and determining occupational requirement in very limited circumstances. Therefore, it is difficult to give an example of the situation where this concept could be applied. According to Advocate General J. Sharpston, the obvious application of the derogation would be in the area of health and safety at work: for example, it would be possible to exclude a male Sikh employee who insisted for religious reasons on wearing a turban from working in a post which required wearing protective headgear. The same could apply to a female Muslim working with potentially dangerous factory machinery and whose wearing of particular attire could give rise to serious concerns on safety grounds.45 Finally, the Court noted that the concept of a genuine and determining occupational requirement “refers to a requirement that is objectively dictated by the nature of the occupational activities concerned or of the context in which they are carried out. It cannot, however, cover subjective considerations, such as the willingness of the employer to take account of the particular wishes of the customer”.46 Therefore, it was decided that this kind of considerations could not constitute a genuine and determining occupational requirement. In this way the Court of Justice added new elements to the interpretation of this concept. Not only did it underline that a characteristic related to certain grounds, in particular religion, can be a genuine and determining occupational requirement in very limited circumstances but it also took into account the objective nature of this exception. Consequently, subjective considerations—including particular wishes of the customer no longer to have the employer’s services provided by certain workers for example disabled, black or wearing an Islamic headscarf etc.—are not important enough to justify the different treatment based on a characteristic related to the protected ground.

44

Case C-188/15, Asma Bougnaoui and Association de défense des droits de l’homme (ADDH) v Micropole SA (ECJ 14 March 2017). 45 ECJ, C-188/15, Opinion of Advocate General J. Sharpston, 13 July 2016, para. 99. 46 Case C-188/15, Asma Bougnaoui and Association de défense des droits de l’homme (ADDH) v Micropole SA (ECJ 14 March 2017), para. 40, emphasis added.

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It is interesting to note that the problem of meeting the customers’ requirements was raised also in Feryn47 where the defendant company, which specialised in the sale and installation of up-and-over and sectional doors, was accused of applying a discriminatory recruitment policy. The director of Feryn after putting up a job vacancy notice, publicly stated that it could not employ ‘immigrants’ because its customers were reluctant to give them access to their private residences for the period of the works. He underlined that he had to comply with his customers’ requirements so his statements and policy were motivated by economic reasons rather than by personal discriminatory intent. Nevertheless, the Court of Justice had no doubts that public statements which expressly excluded the recruitment of employees of a certain ethnic or racial origin constituted direct discrimination within the meaning of Directive 2000/43 as they were likely to dissuade certain candidates from submitting their candidature. Such public statements were sufficient for a presumption of the existence of a discriminatory recruitment policy and that employer was to prove that there was no breach of the principle of equal treatment. However, he could not claim that ethnic origin—or precisely, the fact of not belonging to a particular ethnic group—is a genuine and determining occupational requirement. Instead, the only permissible defence was to prove that the company’s actual recruitment practice did not correspond to the discriminatory statements.48 It follows that a company may not openly declare that the recruitment policy or the decision to exclude its workers from providing certain services are based on discriminatory preferences of its customers. Yet, it may still argue that certain job requirements are necessary to maintain its business operations.49 This question was referred to by Advocate General J. Kokott in Achbita50 where she indicated that the purpose of Article 4 (1) of Directive 2000/78 “is to make it possible to justify differences of treatment on economic — or more precisely, business — grounds, albeit only under strict conditions laid down by the EU legislature”. She also emphasised that employers must be allowed a degree of discretion in the pursuit of their business, which includes inter alia their rights to determine how and under what conditions the roles within its organisation are performed and to require the workers to behave and dress in a particular way. However, any dress code has to pursue a legitimate objective and be proportionate. Consequently, AG Kokott noticed that special customers’ wishes to be served only by employees of a particular religion, ethnic origin, colour, sex, age or sexual orientation, or only by employees without a disability would obviously not constitute a legitimate objective. Another situation is when it comes to a policy of religious and ideological neutrality, which

47

Case C-54/07, Centrum voor gelijkheid van kansen en voor racismebestrijding v Firma Feryn NV (10 July 2008). 48 Śledzińska-Simon (2016), p. 214. 49 Śledzińska-Simon (2016), p. 215. 50 Case C-157/15, Samira Achbita and Centrum voor gelijkheid van kansen en voor racismebestrijding v G4S Secure Solutions NV (ECJ 14 March 2017), para. 79.

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can be treated as such objective. Still, the undertaken measures have to meet the proportionality criteria.

3.4

A Legitimate Objective and Proportionality

It should be underlined that any genuine and determining requirement has to serve a legitimate objective and be proportionate. The list of such objectives is open but there is no doubt that the employer cannot pursue any arbitrary aim of its choice, but only those that are legitimate. “The assessment of whether the objective pursued by an employer is legitimate calls for a normative approach taking into account not least the fundamental values of the European Union and the essential aims which it pursues”.51 The examples of such legitimate aims can be found in the case law of the Court of Justice or Advocate Generals’ opinions. They include inter alia: • the requirements of public security, in particular concerning the interoperability of special combat units,52 • the concern to ensure the operational capacity and proper functioning of the professional fire service,53 • guaranteeing air traffic safety,54 • the concern to ensure the operational capacity and proper functioning of the police service,55 • the requirements of health and safety at work which can predict e.g. the wearing of protective headgear,56 • company policy of religious and ideological neutrality.57 There are also certain circumstances or interests which have been excluded from the scope of the legitimate objective concept. Hence, the employer cannot refer e.g. to the commercial interest of its business58 or more concretely to its customers’ wishes to be served only by employees of a particular religion, ethnic origin, colour,

51

ECJ, C-157/15, Opinion of Advocate General J. Kokott, 31 May 2016, para. 87. Case C-273/97, Angela Maria Sirdar v The Army Board and Secretary of State for Defence (ECJ 26 October 1999). 53 Case C-229/08, Colin Wolf v Stadt Frankfurt am Main (ECJ 12 January 2010). 54 Case C-447/09, Reinhard Prigge and Others v Deutsche Lufthansa AG (ECJ 13 September 2011). 55 Case C-416/13, Mario Vital Pérez v Ayuntamiento de Oviedo (ECJ 13 November 2014) and Case C-258/15, Gorka Salaberria Sorondo v Academia Vasca de Policía y Emergencias (ECJ 15 November 2016). 56 Consequently, it would be possible to exclude, for those reasons, a male Sikh employee who insisted for religious reasons on wearing a turban; ECJ, C-188/15, Opinion of Advocate General J. Sharpston, 13 July 2016. 57 ECJ, C-157/15, Opinion of Advocate General J. Kokott, 31 May 2016. 58 ECJ, C-188/15, Opinion of Advocate General J. Sharpston, 13 July 2016. 52

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sex, age or sexual orientation, or only by employees without a disability.59 This is also connected with the fact that the exception of a genuine and determining occupational requirement is not based on subjective considerations but has an objective character. Moreover, the application of this concept is possible only if the principle of proportionality is observed. Such a requirement was not originally predicted in the Article 2 (2) of Directive 76/207, but the Court of Justice had no doubts that it should be taken into account when applying this provision. Consequently, in Commission v. United Kingdom60 it emphasised that “the fact that a law of a Member State excludes from the prohibition of discrimination between sexes all kinds of employment in private households or in small undertakings with not more than five employees nevertheless goes beyond the objective which may be lawfully pursued within the framework of the provision in question, by reason of the generality of the exclusion”. In subsequent case law the Court directly referred to the principle of proportionality as one of the general principles of the Community law which must be observed in determining the scope of any derogation from an individual right such as the equal treatment of men and women. It also explained that this principle “requires that derogations remain within the limits of what is appropriate and necessary for achieving the aim in view and requires the principle of equal treatment to be reconciled as far as possible with the requirements of public safety which constitute the decisive factor as regards the context of the activity in question”.61 In practice, the Court of Justice has come to different conclusions with regard to proportionality. In Commission v. France62 a system of separate recruitment according to sex that operated for the five corps of the national police force was held to be disproportionate and as such incompatible with Directive 76/207. The Court did not give any reasons for its approach and did not even check if the system was appropriate and necessary. In Johnston, the national court was left with the task of ensuring that the principle of proportionality was observed and “to determine whether the refusal to renew Mrs Johnston’s contract could not be avoided by allocating to women duties which, without jeopardizing the aims pursued, can be performed without fire-arms”.63 However, the Court of Justice did not indicate the factors that the national court had to take into account in carrying out the

59

ECJ, C-157/15, Opinion of Advocate General J. Kokott, 31 May 2016. Case 165/82, Commission of the European Communities v United Kingdom of Great Britain and Northern Ireland (ECJ 8 November 1983). 61 Case 222/84, Marguerite Johnston v Chief Constable of the Royal Ulster Constabulary (ECJ 15 May 1986), para. 38; similarly Case C-273/97, Angela Maria Sirdar v The Army Board and Secretary of State for Defence (ECJ 26 October 1999), para. 26 and Case C-285/98, Tanja Kreil v Bundesrepublik Deutschland (ECJ 11 January 2000), para. 23. 62 Case 318/86, Commission of the European Communities v French Republic (ECJ 30 June 1988). 63 Case 222/84, Marguerite Johnston v Chief Constable of the Royal Ulster Constabulary (ECJ 15 May 1986), para. 39. 60

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proportionality test. In Sirdar,64 the Court of Justice referred to a special character of the Royal Marines which justified the decision of national authorities to exclude women from these special combat units. Consequently, such an exclusion was regarded as proportional although it had quite a general character. The Court appeared to have accepted that women could not perform the required role in the Royal Marines without investigation of whether this was in fact the case.65 By contrast, in Kreil it held that “even taking account of the discretion which they have as regards the possibility of maintaining the exclusion in question, the national authorities could not, without contravening the principle of proportionality, adopt the general position that the composition of all armed units in the Bundeswehr had to remain exclusively male”.66 Such an approach should be maintained in future case law of the Court of Justice as when there is a choice between several appropriate measures, recourse must be had to the least onerous, and the disadvantages caused must not be disproportionate to the aims pursued. In other words, the control of proportionality requires striking a balance between the substantive interests involved. However, the Court of Justice has not always taken into account proportionality sensu stricto, concentrating rather on the necessity of a measure. Hence, in Wolf it emphasised that to ensure the efficient functioning of the intermediate career in the fire service, it may be considered necessary for the majority of officials in that career to be able to perform physically demanding tasks. Recruitment at an older age than 30 would have the consequence that too large a number of officials could not be assigned to the most physically demanding duties.67 Therefore, the Court came to the conclusion that the age limit of 30 years for recruitment to intermediate career posts in the fire service was both appropriate and necessary to the objective of ensuring the operational capacity and proper functioning of the professional fire service. It should be noticed, thus, that insufficient attention was given to the issue of whether the legitimate aim of operational efficiency could not be achieved in another less burdensome manner. Indeed, it can be argued that in this case the Court was satisfied with a lower standard of proportionality.68 Similar, quite general approach towards proportionality was taken in Prigge. The Court did not check whether the rule setting the age-limit of 60 for airline pilots as the moment when they were considered as no longer possessing the physical capabilities to carry out their occupational activity was appropriate and necessary for guaranteeing air traffic safety. The Court just came to conclusion that the requirement to retire at that age was disproportionate because “national and international legislation authorise the carrying out of that activity, under certain

64 Case C-273/97, Angela Maria Sirdar v The Army Board and Secretary of State for Defence (ECJ 26 October 1999). 65 Pitt (2009), p. 5. 66 Case C-285/98, Tanja Kreil v Bundesrepublik Deutschland (ECJ 11 January 2000), para. 29. 67 Case C-229/08, Colin Wolf v Stadt Frankfurt am Main (ECJ 12 January 2010), para. 43. 68 Pitt (2011), p. 5.

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conditions, until the age of 65”.69 A more stringent standard of proportionality was applied by the Court in Pérez, which concerned national legislation setting the maximum age for recruitment of local police officers at 30 years. Firstly, it was noticed that given the tasks assigned to them, “not all of the capacities those officers must possess in order to be able to perform some of their duties are comparable to the ‘exceptionally high’ physical capacities which are regularly required of officials in the fire service, most notably in fighting fires”.70 Secondly, the Court referred to the recruitment procedure for local police officer posts which involved stringent, eliminatory physical tests which could ensure that they possessed the particular level of physical fitness in a less binding manner than the fixing of a maximum age limit. Finally, it was underlined that it was not necessary to maintain a particular age structure in order to safeguard the operational capacity and proper functioning of the local police service. In these circumstances the national legislation was held disproportionate to that aim. Unfortunately, the Court came to another conclusion in Sorondo where the only difference was that the recruitment procedure concerned not the local police but the police forces of the Autonomous Community of the Basque Country, and the age-limit for police officers was 35. However, it was emphasised that the duties performed by the police forces of Autonomous Communities differed from those carried out by the local police, in particular a police officer of the lowest rank did not carry out administrative duties, but performed essentially operational duties which might imply recourse to physical force such as protecting people and property, ensuring that individuals can freely exercise their rights and freedoms and the safety of citizens. Moreover, the Court referred to the precise data presented by the defendant—Academia Vasca de Policía y Emergencias—concerning inter alia the general condition of police officers and the age structure of the police forces of the Autonomous Community of the Basque Country which showed that the average age of staff of that police force would rise significantly in future. The Court took also into account the argument that “the rational organisation of the police service of the Autonomous Community of the Basque Country requires that a balance is struck between the number of physically demanding posts, not suitable for older police officers, and the number of posts that are less physically demanding, which can be occupied by older police officers”.71 Finally, it was considered whether eliminatory physical tests might constitute a less restrictive alternative. However, the Court, following also the opinion of Advocate General Mengozzi, came to a negative conclusion. It emphasised that as the view was to re-establish a satisfactory age pyramid, the possession of particular physical capacities should not be envisaged at the time of recruitment competition

69

Case C-447/09, Reinhard Prigge and Others v Deutsche Lufthansa AG (ECJ 13 September 2011), para. 75. 70 Case C-416/13, Mario Vital Pérez v Ayuntamiento de Oviedo (ECJ 13 November 2014), para. 54. 71 Case C-258/15 Gorka Salaberria Sorondo v Academia Vasca de Policía y Emergencias (ECJ 15 November 2016), para. 46.

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tests, but also taking into consideration the years of service that could be accomplished by a police officer after recruitment. As a result, the Court stated that the requirement concerning age-limit was both appropriate to the objective of ensuring the operational capacity and proper functioning of police services and did not go beyond what was necessary for this purpose; however, the referring court was to make sure that the information presented by the Academy was accurate. Hence, the analysis of proportionality in Sorondo was quite detailed, and the Court considered whether the legitimate objectives raised in this case could not be met in another, less restrictive manner. However, data presented by the defendant as well as the additional purpose to re-establish a satisfactory age pyramid indicated during the proceedings convinced the Court to the proportional character of the rule that candidates for posts as police officers who are to perform all the operational duties incumbent on police officers must be under 35 years of age.

4 Conclusions The genuine occupational requirement exception provided for by Directives 2000/ 43, 2000/78 and 2006/54 should be interpreted in a strict way, which has been constantly underlined by the Court of Justice in its case law. It is also to be applied in a transparent way and is not mandatory but permissive for the Member States. Moreover, this concept cannot be applied to all occupational activities and in all circumstances but only if it is dictated by “the nature of the particular occupational activities concerned or of the context in which they are carried out”. The case law shows that such particular professions where certain genuine and determining occupational requirements can be decisive include armed forces, in particular special combat units such as the Royal Marines, as well as the prison, fire and police services which remains in convergence with the recital 18 of Directive 2000/78. Apart from them, such particular occupational activities as acting, dancing, singing, artistic or fashion modelling can also be taken into account, since their performance may require specific characteristics related to the protected grounds, for example concerning the appearance, voice, way of moving and so on. The Court of Justice has had no doubts that the genuine and determining occupational requirement exception should be based on objective criteria, not subjective considerations. Moreover, since the adoption of Directives 2000/43 and 2000/78, it has constantly emphasised that not the ground on which the difference of treatment is based but a characteristic related to that ground must constitute a genuine and determining occupational requirement. This also applies to the discrimination based on sex as Directive 2006/54 refers to “a characteristic related to sex” instead of “the sex of the worker as a determining factor”. However, there are not many examples of such characteristics although much depends also on the ground. The Court of Justice has treated the possession of particular physical capacities as a characteristic relating to age in several cases, and it seems that a similar position can be adopted when it comes to sex, on the condition that an individual’s abilities are

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taken into account. The above-mentioned characteristics such as appearance or voice can be related to many grounds: sex, age, disability or even, in certain contexts, to racial or ethnic origin. It is difficult to find the examples of characteristics related to religion or sexual orientation as they have a rather hidden character; only when they are manifested in a certain way, they can be considered under the genuine and determining occupational requirement as it was in Achbita or Bougnaoui. Even if the difference in treatment is based on a characteristic related to the protected ground and it constitutes a genuine and determining occupational requirement, it still has to pursue a legitimate objective and be proportionate. The case law of the Court of Justice shows that it is ready to accept many different legitimate objectives, in particular the concern to ensure the operational capacity and proper functioning of the fire or police services. Therefore, it seems that one of the most important elements during the proceedings is to convince the Court that a given measure is proportional. This is, however, an ad casum assessment, which takes into account the particular circumstances of the case. As a result, it is difficult to predict what judgment will be given, considering in particular that the degree of the Court’s scrutiny can be different. However, if specific information is provided—including data concerning the results of medical research or the age structure of certain units or structures that confirm the appropriate and necessary character of a specific age-limit—then the Court is ready to consider it as a proportionate solution. Unfortunately, it usually does not take into account proportionality sensu stricto, which requires striking a balance between the general interest of ensuring the operational capacity and proper functioning of certain services and the individual interest of a person excluded from the recruitment process. It seems that in future case law the Court should focus not only on the necessity of a genuine and determining occupational requirement but also take into account the situation of individuals concerned.

References Barnard, Catherine. 2012. EU Employment Law. Oxford: Oxford University Press. Burri, Susanne. 2006. How to Interpret the Concept of Genuine Occupational Requirements? Paper Presented at the ERA Seminar: The Fight Against Discrimination, Academy of European Law, Trier, 30–31 October 2006. Canor, Iris. 2002. Harmonizing the European Community’s Standard of Judicial Review? European Public Law 8: 135–166. Łopatowska, Jolanta. 2009. Discrimination Based on Religion or Belief in the EU Legal Framework. Derecho у Religion IV: 71–84. Maliszewska-Nienartowicz, Justyna. 2014. Direct and Indirect Discrimination in European Union Law – How to Draw a Dividing Line? International Journal of Social Sciences III: 41–55. Muir, Elise. 2015. From the Principle of Equal Treatment to EU Equality Law. In The Oxford Handbook of European Union Law, ed. Anthony Arnull and Damian Chalmers, 919–942. Oxford: Oxford University Press. Pitt, Gwyneth. 2009. Genuine Occupational Requirements. Paper Presented at the ERA Seminar: The EC Anti-discrimination Directives 2000/43 and 2000/78 in Practice, Academy of European Law, Trier, 27–28 April 2009.

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———. 2011. Genuine Occupational Requirements in European Law. https://eprints.kingston.ac. uk/19801/1/Pitt-G-19801.pdf. Sargeant, Malcolm. 2013. Distinguishing Between Justifiable Treatment and Prohibited Discrimination in Respect of Age. Journal of Business Law 4: 398–416. Śledzińska-Simon, Anna. 2016. Is There a Place for the Islamic Veil in the Workplace? Managerial Prerogatives and the Duty of Reasonable Accommodation in the EU Anti-discrimination Governance. ERA Forum 17: 203–220.

Justyna Maliszewska-Nienartowicz is Professor at the Chair of European Studies, the Faculty of Political Science and Security Studies, Nicolaus Copernicus Univeristy in Poland.

The Concept of “Genuine and Determining Occupational Requirements” in EU Equality Law: A Critical Approach Sara Iglesias Sánchez

Contents 1 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 The Development of the Concept of “Genuine Occupational Requirements” . . . . . . . . . . . . . 3 GDOR and a Justification-Based Approach . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.1 Is the GDOR Truly an Exception to the Prohibition of Direct Discrimination? . . . . 3.2 GDOR and Indirect Discrimination? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.3 GDOR in Primary Law? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 Hierarchy and Differentiation Among Protected Grounds? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 Closing Remarks . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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Abstract The concept of ‘genuine and determining occupational requirements’ (GDOR) is an exception that derogates from the non-discrimination principle. It causes, for that reason, significant normative tension that becomes manifest in its enactment in secondary law and its interpretation through case-law. Commenting on the contribution of Prof. Maliszewska-Nienartowicz to this volume, this chapter discusses some of the challenges that the concept of GDOR presents. It first addresses the tension inherent in the very concept of GDOR, which is best understood through an overview of the jurisprudential development of the conditions attached to this exception. Subsequently, the specific function and necessity of such a concept are analyzed through the critical lens of the relationship of the GDOR to the traditional role of a justification-based approach. The chapter then turns to the problem of hierarchy and differentiation among protected grounds related to GDOR. The chapter concludes with an outline of additional challenges lurking in the yet unchartered waters of the practical application of GDOR in EU law, such as the admissibility of objectives linked to consumer preferences, other fundamental rights, or the interrelation of GDOR and the concept of reasonable accommodation. All the views expressed in this chapter are purely those of the author. S. I. Sánchez (*) European Court of Justice, Luxembourg, Luxembourg © Springer Nature Switzerland AG 2020 T. Giegerich (ed.), The European Union as Protector and Promoter of Equality, European Union and its Neighbours in a Globalized World 1, https://doi.org/10.1007/978-3-030-43764-0_11

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1 Introduction The non-discrimination principle has limits, just as most fundamental rights do. Those limits are commonly articulated in EU law through the use of terms such as ‘justifications’ and ‘exceptions’. In the field of employment, the domain par excellence of EU anti-discrimination policy, these limitations are given a particular functional meaning. They are devised to balance the individual interests of workers and candidates with general interests and on some occasions, even with specific interests of employers. The concept of ‘genuine and determining occupational requirements’ (GDOR) constitutes an exception applying to both direct and direct discrimination whose purpose is preserving the ‘functional’ interest side of the equation. In other words, it is meant to ensure that workers perform their professional function in an adequate manner and in this way serves both the interests of employers and the general public. That exception however, derogates from the very logic of the non-discrimination principle, for it may be expressed as ‘a limited right to discriminate’.1 The concept is, for that reason, clearly the source of important normative tension in secondary law and its interpretation through case-law. The concept of GDOR features in virtually all EU anti-discrimination directives, as Prof. Maliszewska-Nienartowicz describes in her chapter. In the light of her presentation, this short chapter discusses some of the challenges that the concept of GDOR presents in the framework of the general approach of EU law to antidiscrimination law. By way of introduction, one could merely highlight that both the case-law and the legislation approach GDOR with caution. The use of the adjectives ‘genuine’ and ‘determining’ to qualify the exception gives an indication of the risk of abuse and misapplication to which it is subject. In this context, my contribution will address the tension embedded in the very concept of ‘genuine and determining occupational requirements’; tension that is best revealed through (Sect. 2) an overview of the jurisprudential development of the conditions attached to this exception. Subsequently (Sect. 3), the specific function and necessity of the concept will be analyzed through the critical lens of the relationship of the GDOR to the traditional role of a justification-based approach. The chapter then (Sect. 4) turns to the problem of hierarchy and differentiation among protected grounds in the field of GDOR. The chapter concludes (Sect. 5) with an outline of additional challenges lurking in the yet unchartered waters of the practical application of GDOR in EU law, such as the admissibility of objectives linked to consumer preferences, other fundamental rights, or the interrelation of GDOR with the concept of reasonable accommodation.

1

See, on the equivalent exception in US Law, Sirota (1977), p. 1025 (1029).

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2 The Development of the Concept of “Genuine Occupational Requirements” The concept and conditions of GDOR were thoroughly described by Prof. Maliszewska-Nienartowicz in her contribution to this volume. The following lines discuss a few additional and punctual issues that may further illustrate the peculiarities and difficulties of the practical application of this exception. For this purpose, to analyse the GDOR concept from the point of view of its evolution in legislation and case-law can be very helpful. GDOR made its first appearance in EU law in Article 2(2) of Directive 76/207/ EEC,2 which took its inspiration from similar concepts in comparative equality law.3 The wording of the exception already contained core elements: it allowed the exclusion by Member States of activities from the scope of the Directive that, by virtue of their nature or of the context in which they were to be carried out, sex was rendered a determining factor. The Court insisted on the importance and difference of both nature and context as alternative criteria that qualify a specific activity as one with regard to which applying the GDOR exception could be justified.4 The case-law of the CJEU on this provision soon yielded a more solid legal framework that included additional requirements. The exclusion of activities was to be specific, not general.5 The unwritten requirement of proportionality in the use of the exception was also soon established as a condition.6 In the light of the judgments in Johnston,7 Sirdar8 and Kreil,9 the European Legislature considered it necessary in 2002 to amend Article 2(2) of Directive 76/207 to make explicit the requirement of proportionality to the GDOR

2

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, OJ L 39/40 (1976). Article 2(2) of Directive 76/207 states: ‘This Directive shall be without prejudice to the right of Member States to exclude from its field of application those occupational activities and, where appropriate, the training leading thereto, for which, by reason of their nature or the context in which they are carried out, the sex of the worker constitutes a determining factor’. 3 See, for example, the concept of ‘genuine occupational qualifications’ in the United Kingdom’s Sex Discrimination Act of 1975 or the concept of ‘bona fide occupational qualification’ in the United States’ Title VII of the Civil Rights Act of 1964. 4 Case 222/84, Johnston (ECJ 15 May 1986), EU:C:1986:206, paras. 34–36. While nature is intrinsic to the job, context is circumstantial and dependent on the specific conditions in which the job must be carried out in a specific case. 5 Case 165/82, Commission v United Kingdom (ECJ 8 November 1983), EU:C:1983:311, para. 16. 6 Case 222/84, Johnston (ECJ 15 May 1986), EU:C:1986:206, para. 35. 7 Case 222/84, Johnston (ECJ 15 May 1986), EU:C:1986:206. 8 Case C-273/97, Sirdar (ECJ 26 October 1999), EU:C:1999:523. 9 Case C-285/98, Kreil (ECJ 11 January 2000), EU:C:2000:2.

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exception.10 This intervention was also used by the legislature to align the concept of GDOR in Directive 76/207 with the technically more precise definition adopted by the two nondiscrimination directives adopted in the year 2000. The conceptualization of GDOR changed considerably significantly with Article 4(1) of Directive 2000/7811 and of Directive 2000/43.12 In Directive 76/207, the GDOR was defined as concomitant with direct discrimination: it explicitly allowed the application of the exception when ‘sex constitutes a determining factor’. Conversely, Directive 2000/43,13 no longer referred to the protected ground, but rather to a ‘characteristic related’ to those grounds. In the first case where the CJEU was invited to interpret GDOR under this new definition—Wolf, concerning the age of firefighters—this important conceptual shift was emphasized: ‘it is not the ground on which the difference of treatment is based but a characteristic related to that ground which must constitute a genuine and determining occupational requirement.’14 The change in the essential definition of the GDOP requirement led to a modification of the test with the introduction of a new layer of analysis. From Wolf on, it became apparent that, in order to find whether the GDOR exception could be applied, three elements had to be analyzed as part of the ‘GDOR test’.15 First, the relationship between a feature and an activity needs to be established: this is the pertinent characteristic which constitutes the occupational requirement (for example, the possession of specific physical capabilities). This step of the analysis verifies the validity of taking the protected ground (sex, religion, age, etc.) into consideration by identifying an activity-specific objective that justifies differential treatment. The crucial element is the necessity of the feature to the activity. Second, once the relevance of the feature is proven, the generalization exercise follows: the protected ground must be closely associated with the indicated feature (for example, that respiratory capacity, musculature and endurance diminish with age makes persons of a certain age susceptible to risks when performing certain

10

Article 2(2) became Article 2(6) by virtue of Council Directive 2002/73/EC 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 condition, OJ L 269/15 (2002). See, on the need to adjust the definition of GDOR, Proposal for a Directive of the European Parliament and of the Council 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, COM(2000) 334 final OJ C 337 E/204 (2000) of 11 July 2000. 11 Council Directive 2000/78/EC establishing a general framework for equal treatment in employment and occupation, OJ L 303/16 (2000). 12 Council Directive 2000/43/EC implementing the principle of equal treatment between persons irrespective of racial or ethnic origin, OJ L 180/22 (2000). 13 The conceptual shift was already apparent in the Proposal for a Council Directive implementing the principle of equal treatment between persons irrespective of racial or ethnic origin, COM (1999) 566 final of 25 November 1999, pointing at similar definitions in the legislation of Denmark, Ireland, the Netherlands and the United Kingdom. 14 Case C-229/08, Wolf (ECJ 12 January 2010), EU:C:2010:3, para. 35. 15 Case C-229/08, Wolf (ECJ 12 January 2010), EU:C:2010:3, para. 36.

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tasks). This is, of course, the most problematic element of the analysis, as undisciplined generalization may amount to little more than stereotyping. To be more precise, the tension created by the GDOR exception arises between the first and second steps of the analysis. Even though the exception, under its renewed definition, requires justifying breaching the link between the protected ground and the occupational requirement (which itself is not the ground for the breach), the GDOR exception accepts, ultimately, reliance on a consubstantial link between the two. In many cases, the characteristic and the protected ground are so closely related that the GDOR exception may even be applied by explicit reference to the protected ground. Third comes the need for a proportionality assessment. This assessment includes verifying the legitimacy of the objective, its appropriateness, whether it does or does not go beyond what is necessary to achieve such objective as well as its balance of protected interests. Under this stage of the analysis, the CJEU has devoted particular attention to organizational considerations linked to the nature and context of the specific activity within any given service. Specifically this could include the age distribution in and operational needs of firefighting and police corps.16 It also implies considering the adequacy of less restrictive measures based on an individualized approach,17 or the existence of a broader legislative framework, even at the international level, and contemplating other assessments of the balance between the legitimate objective and the interests of the members of the protected group.18 Because of the legislative and jurisprudential evolution outlined above, GDOR have been redefined as features that supersede the connection between the protected ground and the required characteristic, and proportionality review has been incorporated as a central element of the test. These developments beg a systematic examination of the relationship and difference between the application of the GDOR test and the analysis in the traditional justification-based approach.

3 GDOR and a Justification-Based Approach 3.1

Is the GDOR Truly an Exception to the Prohibition of Direct Discrimination?

As mentioned in the introduction, GDOR are typically referred to as exceptions.19 Their ‘exceptional’ character resides in derogation of the prohibition of direct discrimination—which generally precludes justification unless the derogation is explicit. However, the definition provided by the 2000 directives may convey the impression that the concept of GDOR is technically not an exception to direct 16

See e.g. Case C-229/08, Wolf (ECJ 12 January 2010), EU:C:2010:3, para. 43. Case C-416/13, Vital Pérez (ECJ 13 November 2014), EU:C:2014:2371, para. 55. 18 Case C-447/09, Prigge and Others (ECJ 13 September 2011), EU:C:2011:573, paras. 73–75. 19 See e.g. Ellis and Watson (2012), p. 381. 17

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discrimination. If the differential treatment were solely based on a protected ground, it would not be covered by the GDOR exception. Conversely, GDOR are defined as relating to a ‘characteristic’. Is it then possible to consider that the notion of GDOR could be covered by the traditional justification approach to indirect discrimination? The answer to that question appears to be negative. Indeed, despite the emphasis of the GDOR definition on a specific characteristic as the genuine basis for differentiation, this exception does allow for direct discrimination by reference to, if not based on a protected ground. First, even if a GDOR were to be elaborated by reference not to the protected ground but to the protected characteristic, in many occasions it would be still subsumed under the prohibition of direct discrimination. Indeed, the case-law of the CJEU considers that differential treatment based on certain characteristics intrinsically linked to a protected ground amounts to direct rather than indirect discrimination.20 Second, it must be noted that GDOR allows generalization on the basis of a characteristic that is intrinsically connected to a protected ground. In that generalization exercise, the GDOR exception permits reference not only to the characteristic itself which often remains as a non-expressed assumption—but also directly and expressly to the protected ground. In other words, what the GDOR allows is precisely use of the protected ground as a proxy for the characteristic that it is truly considered an occupational requirement. In truth, firefighters need to be physically fit and strong. Youth is just a proxy for those qualities. Put that way, the GDOR approach amounts to a type of regulatory economy: it opens a path for a shortcut by permitting generalization and bypassing the need to assess the specific qualifications and aptitudes of every given candidate. All women can be explicitly banned from specific army sections regardless of any individual woman’s strength. Everyone over a certain age is excluded from being a firefighter or a pilot although some of the individuals affected may actually possess the necessary strength and physical fitness. When the logic of the GDOR is laid out in this manner, the force of its derogatory effects appear with clarity, as it reveals how generalized assumptions on the basis of a protected ground are allowed without an individual assessment of aptitude. As Pitt has argued, this bears an inherent risk of stereotyping. Indeed, the risk could amount to allowing Member States to adopt general exemptions from specific occupations instead of proving on a case-by-case basis that a particular individual is fit or unfit for a particular position.21 An important conclusion already emerges at this early juncture. Because of GDOR’s diminishing effect on the essential logic of the prohibition of discrimination (i.e., individuals are to be considered solely on their merits), the general

20

See, famously, Case C-177/88, Dekker (ECJ 8 November 1990), EU:C:1990:383, for the CJEU case law in which disparate treatment referring to characteristics intrinsically linked to the protected ground is considered direct discrimination, Cloots (2018), p. 589 (605–608). 21 Pitt (2009), p. 1 (6–7).

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reference to the maxim that ‘exceptions should be interpreted strictly’ in all likelihood does not adequately capture the exceptionality of GDOR. In other words, the GDOR exception needs to be interpreted even more strictly than other exceptions and derogations.22 It is to be applied only ‘in the most limited circumstances’.23 In the view of this author, the proportionality assessment of GDOR should also reflect this enhanced exceptionality. Precisely because of its methodologically derogatory nature, this exception should be circumscribed to the situations in which an individual assessment would indeed be impossible or non-reasonable (e.g., due to aggregate or systemic considerations of organization, safety considerations of overriding importance or the technical or scientific impossibility of ensuring a specific level of performance in an individualized analysis, all of which are ultimately linked to the specific assessment of the nature and context of the activity).24 The analysis of proportionality stricto sensu is of extreme importance here, as this stage of the analysis makes it possible to assess more precisely whether any less intrusive alternative measure exists and whether the burdens imposed on the protected group are too high. A good example of the application of this methodology is the case Vital Perez, where the stringent and eliminatory physical tests given to local police officers already served the purpose of ensuring a particular level of physical fitness in a less arbitrary manner than a maximum age limit.25

3.2

GDOR and Indirect Discrimination?

As Prof. Maliszewska-Nienartowicz maintains in her chapter, GDOR are traditionally considered as exceptions both to direct and indirect discrimination. However, it is difficult to find examples in the case-law of the CJEU where this exception is relevant in cases of indirect discrimination. Indeed, if the differential treatment is qualified as not directly discriminatory, the case-law resorts to the traditional justifications approach. What then is the potential worth or added value of GDOR in the field of indirect discrimination? It appears that it is indeed minimal. Even if an abstract response to the question might be audacious, given the richness and complexity of potential practical examples, two potential situations come to mind.

22 This also follows from the Recitals of each of the non-discrimination directives. See, for example, Recital 19 of Directive 54/2006 on Directive 2000/78, Recital 19 of Directive 2000/43 or recital 23 of Directive 2000/78. 23 See, regarding Directive 2000/78, ECJ, C-188/15, Opinion of Advocate General J. Sharpston, 13 July 2016, EU:C:2016:553, para. 101. 24 Indeed, those elements may explain the different results in Case C-229/08, Wolf (ECJ 12 January 2010), EU:C:2010:3; Case C-416/13, Vital Pérez (ECJ 13 November 2014), EU:C:2014:2371 and Case C-258/15, Salaberria Sorondo (ECJ 15 November 2016), EU:C:2016:837. 25 Case C-416/13, Vital Pérez (ECJ 13 November 2014), EU:C:2014:2371 para. 55. See also, in the field of indirect discrimination, Case C-409/16, Kalliri (ECJ 18 October 2017), EU:C:2017:767, para. 42.

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First, take the situation in which a measure is deemed indirectly discriminatory on the basis of the traditional justification approach. Could that measure be justified as a GDOR? This is difficult to imagine. Indeed, one would expect that the assessment of the legitimate objective and proportionality under the traditional approach to indirect discrimination would involve the same kind of considerations that would be relevant for the GDOR test. Since the GDOR test imposes stricter criteria than the traditional justification approach in the field of indirect discrimination, a measure not allowed under the latter could not a fortiori be justified under the former. Second, take the situation in which a measure could be justified under the traditional approach to indirect discrimination. Because exceptions and justification operate as alternatives, once an otherwise indirectly discriminatory rule has been validated through justification, it could not be negated by the mere addition of another express exception. An interesting example of the first situation is the Karalli case, where a Member State imposed a height requirement of 1.70 m for admission to an entry competition for the police academy regardless the applicant’s sex. The preliminary question was whether that requirement was precluded by Directive 76/207. After finding that the measure at issue was indirectly discriminatory to women, the Court examined whether the measure was objectively justified. Curiously, it did not refer to the GDOR provision that could have been applicable under that Directive (namely, Article 2(6) of Directive 76/207). However, the Court brought GDOR considerations into the analysis by referring, in its assessment of the legitimacy of the objective and of proportionality, to Article 4(1) of Directive 2000/78 and the case-law interpreting that provision.26 This case shows how the logic and arguments linked to the GDOR could fit within the traditional proportionality assessment under the analysis of justification in the framework of indirect discrimination. Even if the case just mentioned gave an impression of ‘identity’ of the considerations and balancing exercise under both the traditional justifications test and the GDOR test, it should be noted that this is not always the case. This has been made apparent in the field of discrimination on the basis of religion, where the CJEU has taken a very different approach depending on whether the differential treatment was found to be directly discriminatory or not. Even the consideration of the legitimacy of the objective was affected by this determination. In Bougnaoui, the finding of a directly discriminatory practice led to the exclusion of ‘subjective considerations such as the willingness of the employer to take account of the particular wishes of the customer’ from justification under the GDOR test.27 Conversely, in G4S Secure Solutions, a case which roughly exemplifies the second potential case mentioned above, an employer’s rule amounting to indirect discrimination was deemed ‘justifiable’ by the legitimate objective of an ‘employer’s wish to project an image of neutrality towards customers’, considered together with the freedom to conduct a

26 27

Case C-409/16, Kalliri (ECJ 18 October 2017), EU:C:2017:767, paras. 36 and 38. Case C-188/15, Bougnaoui and ADDH (ECJ 14 March 2017), EU:C:2017:204, para. 40.

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business protected by Article 16 of the Charter.28 Unlike the approach proposed by Advocate General Kokott,29 no specific analysis was conducted under the GDOR principle.

3.3

GDOR in Primary Law?

The assertion that the GDOR exception is nearing the traditional justification approach has been confirmed by the case-law of the CJEU with regard to primary law. In two cases, Glatzel and Fries,30 the CJEU referred to the case-law on Article 4 (1) of Directive 2000/78 in the context of its analysis of the validity of EU rules related to Article 21 of the Charter. On both occasions, the Court tailored the underlying notion and rationale of GDOR within the structure of admissible limitations per Article 52(1) of the Charter.31 In Glatzel, a case examining discrimination on grounds of disability because of the eyesight requirements for driving licenses established by Directive 2006/126/ EC,32 CJEU began by recalling that, in the context of grounds such as age or sex, ‘a difference of treatment which is based on a characteristic related to such grounds does not constitute discrimination – that is to say, an infringement of Article 21(1) of the Charter – where, by reason of the nature of the particular occupational activities concerned or of the context in which they are carried out, such a characteristic constitutes a genuine and determining occupational requirement, provided that the objective is legitimate and the requirement is proportionate.’ As a result, it held ‘that a difference in treatment applied to a person according to whether or not he has the visual acuity necessary to drive power-driven vehicles is not, in principle, contrary to the prohibition on discrimination based on disability within the meaning of Article 21(1) of the Charter, in so far as such a requirement actually fulfils an objective of public interest, is necessary and is not a disproportionate burden.’33 Similarly, in Fries, a case concerning the validity of the EU rules on the mandatory retirement age

28

Case C-157/15, G4S Secure Solutions (ECJ 14 March 2017), EU:C:2017:203, para. 38. ECJ, C-157/15, Opinion of Advocate General J. Kokott of 31 May 2016, EU:C:2016:382 paras. 65 ff. In this Opinion, the Advocate General undertook an analysis of the GDOR that would have been valid both in the framework of direct and indirect discrimination. She concluded that a headscarf ban imposed by a company policy represented a GDOR in the circumstances of the case. 30 Case C-356/12, Glatzel (ECJ 22 May 2014), EU:C:2014:350 and Case C-190/16, Fries (ECJ 5 July 2017), EU:C:2017:513. 31 See on this overlap ECJ, C-190/16, Opinion of Advocate General Bobek of 21 March 2017, EU: C:2017:225, paras. 29–32. 32 Directive 2006/126/EC on driving licences, OJ L 403/18 (2006) and corrigendum OJ L 19/67 (2009), as amended by Commission Directive 2009/113/EC amending Directive 2006/126/EC of the European Parliament and of the Council on driving licences OJ L 223/31–35 (2009). 33 Case C-356/12, Glatzel (ECJ 22 May 2014), EU:C:2014:350, paras. 39 and 40. 29

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for pilots,34 the Court also sought recourse, in the framework of its assessment of the limitations allowed by Article 52(1) of the Charter, to the case-law interpreting Article 4(1) of Directive 2000/78. That development is logical. As noted by Advocate General Bobek, since Directive 2000/78 is a concrete expression of the non-discrimination principle in the field of employment and occupation, the analytical framework under Article 21(1) of the Charter is bound to be similar and the categories and interpretation developed under the directive may ‘serve as inspiration to flesh out the content of Article 21(1) of the Charter’.35 This is a valuable model for emulation, since Article 4(1) of Directive 2000/78 shows ‘the European legislature’s attempt to reach a compromise between competing interests by allowing justifications for national measures enabling differences in treatment to be directly based on age’36 (or other protected grounds). This is a welcome development from the point of view of coherence: as Advocate Bobek further notes, ‘taking due account of the directive is also warranted by the need for a coherent approach to judicial review of EU law and national law in the field of non-discrimination on grounds of age in employment.’37 However, it is important to keep in mind that when GDOR are assessed under a legal framework other than the specific GDOR exception contained in secondary law, the strictness of the test is also incorporated into the analysis of proportionality under the justification test of indirect discrimination and deference to the limitations of Article 21(1) of the Charter. The exceptional character of the ‘first stage’ of the GDOR tests—verifying that the different treatment relates to a characteristic, that the feature is intrinsically linked to age and that it is absolute necessary due to the nature and context of the specific activity—should therefore similarly carry over into the proportionality analysis.

4 Hierarchy and Differentiation Among Protected Grounds? The issue of hierarchy and differentiation among protected grounds is a recurrent topic in the field of EU equality law. In the context of this discussion, the omnipresence of the GDOR exception38 could be considered a uniform element. Indeed, it is 34 Point FCL.065(b) in Annex I to Commission Regulation (EU) No 1178/2011 laying down technical requirements and administrative procedures related to civil aviation aircrew pursuant to Regulation (EC) No 216/2008 (OJ L 311/1 (2011)). 35 ECJ, C-190/16, Opinion of Advocate General Bobek of 21 March 2017, EU:C:2017:225, para. 29. 36 Ibid. 37 Ibid. 38 It could be noted that most traditional and developed field of EU antidiscrimination law— prohibition of discrimination on grounds of nationality—does not resort to this notion. However, the idea is present in the explicit limitations allowed on access to public service. Here, the nationality requirement could be considered tantamount to a genuine occupational requirement

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an exception that features in all equality Directives and its definition has been harmonised in all of them.39 There are, however, important factors that differentiate the grounds and affect the GDOR test. At the end of the day, these factors render this exception a device of differentiation rather than one that generates uniform results. Moreover, the logic behind the differentiation in the secondary law architecture of the GDOR exception is often difficult to grasp. The clearest area of differentiation in the specific regulation of GDOR lies in the field of sex discrimination. This specific legal framework, to be found today in Article 14(2) of Directive 2006/54, is a tributary of the original configuration of the GDOR exception in Directive 76/207 and contains two particular features. First, as Prof. Maliszewska-Nienartowicz noted in her contribution to this volume, the material scope of the exception is narrower than in Directives 2000/43 and 2000/ 78, for it only applies to ‘access to employment, including the training leading thereto’.40 A potential explanation for this difference could involve consideration of the nature of the protected ground and its immutable character. Once a person has been deemed suitable for a position, it would make little sense to allow dismissal or any other kind of differential treatment based on sex in terms of GDOR. However, this logic is not entirely consistent. First, sex or gender is generally, but not always, immutable. Moreover, discrimination against transgender persons constitutes, according to the case-law of the CJEU, direct discrimination on the basis of sex.41 The limited material scope of Article 14(2) of Directive 2006/54 means that change of gender could never motivate dismissal on the basis of the GDOR exception. Second, the immutable nature of sex can be predicated on other protected grounds. Granted, age is essentially variable and disability may supervene. Religion or religious practices may also be subject to modification. However, this is not the case of ethnic or racial origin. Admittedly, in purely practical terms, the highly exceptional nature of the GDOR exception in the field of racial or ethnic origin makes this exception virtually inapplicable outside cases related to authenticity of appearance.42 It is also true

for the loyalty needed for public service is considered a characteristic related to nationality. That assumption, which is of course not immune to criticism, essentially follows the same methodological logic of the GDOR. 39 See on these developments, Waddington and Bell (2001), p. 587 (598). 40 As noted by Pitt (2009), p. 1 (10). 41 See Case C-13/94, P and S (ECJ 30 April 1996), EU:C:1996:170, para. 21, where the Court declared that a difference in treatment based on gender reassignment is based ‘essentially if not exclusively, on the sex of the person concerned. For a more recent case, see Case C-451/16, MB (ECJ 26 June 2018), EU:C:2018:492, para. 38. 42 Proposal for a Council Directive implementing the principle of equal treatment between persons irrespective of racial or ethnic origin, COM(1999)566 final of 25 November 1999, where the Commission stated that ‘in the case of differences of treatment based on racial and ethnic origin, such cases will be highly exceptional. Examples of such differences might, for example, be found where a person of a particular racial or ethnic origin is required for reasons of authenticity in a dramatic performance or where the holder of a particular job provides persons of a particular ethnic group with personal services promoting their welfare and those services can most effectively be

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that, from a practical point of view, the limitation of the scope of the GDOR exception in Directives 2000/43 and 2000/78 may occur through interpretation. It could therefore be aligned with limited scope of Directive 2006/54 in cases where the protected ground refers to immutable characteristics, when the interpretation involves considerations related to the legitimacy of the objective and to the proportionality assessment. However, in general terms, the legislature does not seem to have devised a perfectly logical system or explanation of the generally narrower scope of the GDOR exception in the field of sex. A second argument for the narrower application of the GDOR exception in the field of sex is the exigence of transparency in Directive 2006/54. As was the case with Article 9 of Directive 76/207, Article 31(3) of Directive 2006/54 establishes an obligation that Member States assess the occupational activities referred to in Article 14(2) ‘in order to decide, in the light of social developments, whether there is justification for maintaining the exclusions concerned’. Moreover, that provision stipulates that Member States periodically communicate the results of this assessment to the Commission at least once every 8 years. From these specific obligations, the CJEU derived the obligation of transparency. In Commission v Germany, the twofold supervision mechanism aimed at progressively eliminating the cases allowed under the exception led the CJEU to rule that Member States must compile a complete and verifiable list of activities to which the GDOR exception in the field of sex is applicable.43 The fact that the transparency exigency is based on the specific supervisory mechanism of the sex discrimination Directive raises doubts over the applicability of this requirement to other discrimination directives. Indeed, Directives 2000/78 and 2000/43 only contain a general reference in a Recital indicating that the limited circumstances justifying a GDOR should be included in the information provided by the Member States to the Commission.44 Moreover, even if it appears that Article 4 (1) of both directives refers to the Member States as having the competence to apply the GDOR exception to specific activities, recent case-law corroborates the position that Member States may only provide generic provisions on GDOR in their legislation that mimic the general definition of EU law.45 The judgment in Bougnaoui

provided by a person of that ethnic group.’ From the point of view of comparative law it is indeed noteworthy that the ‘bona fide occupational qualification’ exception in US law is not applicable to discrimination on the basis of race. On this issue and the potential limitations arising from the First Amendment see Robinson (2007), pp. 1–73. 43 Case 248/83, Commission v Germany (ECJ 21 May 1985), EU:C:1985:214, paras. 37 and 38. See also Case 318/86, Commission v France (ECJ 30 June 1988), EU:C:1988:352, paras. 26 and 27. 44 Recital 23. 45 According to Advocate General Kokott ‘contrary to what the wording of Article 4(1) of the Directive may suggest at first glance (‘. . . Member States may provide . . .’), the occupational requirements justifying a difference of treatment need not necessarily be officially laid down by Member States in the form of laws or decrees. It is, on the contrary, sufficient that an undertaking applies a rule imposing such a requirement within its organisation.’ See ECJ, C-157/15, Opinion of Advocate General J. Kokott of 31 May 2016, EU:C:2016:382, para. 67.

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apparently validated that interpretation, as indeed the case concerned a situation in which the national transposition rule only contained a general reference enabling the application of GDOR to employers without any further specification.46 As a result, once Member States have generically provided for the use of GDOR exceptions following Article 4(1) of Directives 2000/78 and 2000/43, employers seem entitled to define the activities to which the exceptions should apply. This standard strongly differs from the criteria applicable in the field of sex discrimination.

5 Closing Remarks The number of cases regarding the GDOR exception has reached a critical mass allowing for some conclusions to be drawn with regard to the specific EU approach to this important and challenging exception to the prohibition of discrimination. The narrow and strict possibilities for its application—linked to the nature and context of specific activities, the strong emphasis on proportionality and the (not always coherent) differentiation of the legal framework between different grounds comprise some of the general threats that can be identified. However, the majority of cases in which the CJEU has developed its doctrine on the GDOR exception have as yet been related to similar or connected topics. The limited case-law at the CJEU level is natural, as most of the cases that involve the practical application of EU antidiscrimination law remain at the national (judicial) level.47 However, it is noteworthy that the majority of cases on GDOR that have come before the CJEU concern areas related to public order or national security (army, police, firefighters) or where considerations of public safety were involved (pilots, drivers). This characteristic gives the case-law a peculiar flavor, because the interests to be balanced with the non-discrimination principle relate to important matters of public interest. There remains, therefore, a wide range of potential challenges and questions yet to come before the CJEU that may play a central role in the ongoing development of the EU’s approach to GDOR. Some of those issues may relate to problematic topics such as the commercial interest of employers, consumer preferences and subjective perceptions. They may also bear strong connections with competing fundamental rights, such as the freedom of expression (e.g., in cases concerning artistic freedom and authenticity of appearance), the freedom to conduct business, the right to privacy, and the rights of vulnerable groups. The recent cases G4S Secure Solutions and Bougnaoui, brought to the fore the issue of the commercial interests of employers and consumer preferences. In the latter, the concept of GDOR was portrayed as ‘a requirement that is objectively dictated by the nature of the occupational activities concerned or of the context in which they are carried out. It cannot, however, cover subjective considerations, such

46 47

Case C-188/15, Bougnaoui and ADDH (ECJ 14 March 2017), EU:C:2017:204, para. 36. For some interesting examples, see: Hillisch (2015), pp. 115–120 or Lewis (1991), pp. 67–71.

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as the willingness of the employer to take account of the particular wishes of the customer.’48 Meanwhile, in the ‘special’ GDOR of Article 4(2) of Directive 2000/ 78, the ‘objectiveness’ requirement was given preeminence by the recent judgment in Egenberger. Here the Court declared that ‘the lawfulness from the point of view of that provision of a difference of treatment on grounds of religion or belief depends on the objectively verifiable existence of a direct link between the occupational requirement imposed by the employer and the activity concerned.’49 This jurisprudential trend conveys a clear message regarding the strict consideration of the GDOR exception as bound to objective factors. The objectivity requirement is precisely linked to the nature of the occupational activity in this context. We may thus genuinely wonder whether the reasoning of the Court in Commission v. United Kingdom is still good law. In that case, the Court found that personal sensitivities played an important role in relations between midwife and patient at that time in history, so the United Kingdom had not exceeded the limits of its power by making an exception for that profession from the equal treatment principle.50 In the view of this author, the recent and welcome emphasis on the objective character of the GDOR does not necessarily imply that, in specific contexts where the specific nature of some activities is thoroughly scrutinised, some elements of subjective appreciation, concerns or interest may in and of themselves conform an objective requirement. This issue, one that has been at the core of the debate around concepts similar to the GDOR in other jurisdictions,51 has not yet been fully explored by the CJEU. Future developments in this regard will be of great interest. Indeed, the tension intrinsic to the very concept of GDOR becomes evident when its application seeks justification in the attitude, appreciation and needs of consumers, customers, target groups, clients or patients. The legitimacy of the objectives linked to the specific nature of activities and of the interests of those ‘passive’ groups will need to be carefully balanced with the aims of EU antidiscrimination law. This assessment, which is traditionally carried out at the national level in consideration of criteria necessarily embedded in specific social contexts, will unfold in the framework of a multinational and multicultural community that necessitates respect for the diversity of the Member States. In that debate, the GDOR exception is fraught with the risk of becoming a Trojan horse for subjective considerations and even stereotypes, defeating the very purpose of the prohibition of discrimination. The role of ‘subjectivity’ in the objective assessment of GDOR may perhaps be considered the last frontier of EU antidiscrimination law. If antidiscrimination law pursues the transformative objective of rendering society more egalitarian, the GDOR exception marks the limits of

48

Case C-188/15, Bougnaoui and ADDH (ECJ 14 March 2017), EU:C:2017:204, para. 40. Emphasis added. See on this debate and the comparison between both cases, Howard (2017), p. 348 (364) and Hennette-Vauchez (2017), p. 744 (755–756). 49 Case C-414/16, Egenberger (ECJ 17 April 2018), EU:C:2018:257, para. 63. Emphasis added. 50 Case 165/82, Commission v United Kingdom (ECJ 8 November 1983), EU:C:1983:311, para. 20. 51 See, for US case-law, Post (2000), pp. 1–40.

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that transformative potential by allowing the law to abdicate its equalizing aspirations in favor of a conservative approach. In this case, the law will only follow, rather than prompt, social change. As such, the GDOR may therefore jeopardize the transformative potential of EU antidiscrimination law by accepting the status quo in different areas. Admittedly, emphasis on its narrow scope of application may cabin those risks to some extent. However, it remains possible that the GDOR concept will neutralize equality protections where they should bite harder, including precisely some areas where the particular nature of an activity is questionable. It is in connection to these areas that the GDOR exception must grapple with the duty of reasonable accommodation,52 an endeavor that has been so far absent from the jurisprudential assessment.

References Cloots, Elke. 2018. Safe Harbour or Open Sea for Corporate Headscarf Bans? Achbita and Bougnaoui. Common Market Law Review 55: 589–624. Ellis, Evelyn, and Philippa Watson. 2012. EU Anti-Discrimination Law. Oxford: Oxford University Press. Hennette-Vauchez, Stephanie. 2017. Equality and the Market: The Unhappy Fate of Religious Discrimination in Europe. European Constitutional Law Review 13: 744–758. Hillisch, Sarah. 2015. Preferential Treatment of Female Gynaecologists Justified by Legitimate Demand. Austrian Constitutional Court, Judgment of 9 December 2014, V 54/2014. Vienna Journal on International Constitutional Law 9: 115–120. Howard, Erica. 2017. Islamic Headscarves and the CJEU. Maastricht Journal of European and Comparative Law 24: 348–366. Lewis, Jeremy. 1991. Genuine Occupational Qualifications and Reverse Discrimination. Tottenham Green Under Fives’ Centre v. Marshal [1989] IRLR 147 (EAT); London Borough of Lambeth v. CRE [1990] IRLR 231 (CA). Industrial Law Journal 20: 67–71. Pitt, Gwyneth. 2009. Genuine Occupational Requirements. Academy of European Law Trier. . Post, Robert. 2008. Prejudicial Appearances: The Logic of American Antidiscrimination Law. California Law Review 88: 1–40. Robinson, Russell. 2007. Casting and Caste-ing: Reconciling Artistic Freedom and Antidiscrimination Norms. California Law Review Robinson 95: 1–73. Sirota, Michael L. 1977. Sex Discrimination: Title VII and the Bona Fide Occupational Qualification. Texas Law Review 55: 1025–1072. Waddington, Lisa, and Mark Bell. 2001. More Equal Than Others: Distinguishing European Union Equality Directives. Common Market Law Review 38: 587–611.

Sara Iglesias Sánchez LLM Yale Law School. PhD U. Complutense of Madrid. Legal Secretary at the CJEU.

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See Pitt (2009), p. 7.

Making Antidiscrimination Law Effective: Burden of Proof, Remedies and Sanctions in Discrimination Cases Katrin Wladasch

Contents 1 Access to Justice . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1.1 Rights Knowledge . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1.2 Underreporting . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 Procedural Issues . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.1 Legal Standing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.2 Burden of Proof . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 Remedies and Sanctions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.1 Case Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.2 Dissuasiveness, Proportionality and Effectiveness: Obstacles and Challenges . . . . . . 3.3 Strategies to Ensure Dissuasiveness, Proportionality and Effectiveness . . . . . . . . . . . . References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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Abstract The anti-discrimination law regime of the European Union has stimulated the setting-up or improvements of legislation and institutional protection against discrimination at the level of the Member States. While academic debate is mostly focussing on the material part of regulations and if they are sufficient, those affected by discrimination are rather confronted with problems accessing justice. Most cases remain unreported due to a lack of knowledge but also because the investment of bringing a case to court is likely not to be paid back. The EU Anti-Discrimination Directives require Member States to lower the burden of proof and to provide for effective, proportionate and dissuasive sanctions. Legal practise of courts and other bodies in charge of deciding in discrimination cases, like specialised tribunals, labour inspectorates, administrative authorities or equality bodies shows that the Most of the information provided originate from a study on sanctions and remedies in discrimination cases the author has conducted for Equinet, the network of European equality bodies, and another one on access to justice in discrimination cases for the Fundamental Rights Agency of the European Union (FRA) the author has contributed to. K. Wladasch (*) Ludwig Boltzmann Institute of Human Right, Vienna, Austria e-mail: [email protected] © Springer Nature Switzerland AG 2020 T. Giegerich (ed.), The European Union as Protector and Promoter of Equality, European Union and its Neighbours in a Globalized World 1, https://doi.org/10.1007/978-3-030-43764-0_12

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sanction regimes are implemented rather hesitantly. Effectiveness of the sanctions regimes in discrimination cases is furthermore impeded by difficulties in accessing justice first hand and in the widespread lack of enforcement mechanisms once a sanction is there. In order to improve the effectiveness of anti-discrimination law, there is a need of focussing on the perspective of the person or group affected, stimulate a change in attitude at the side of those proceeding a case towards more acceptance of the procedural rules and more creativity, when it comes to the choice of sanctions. Strategic litigation has been a valuable tool in moving further on the path to more effectiveness.

1 Access to Justice Legal protection against discrimination has been significantly enhanced in European Union countries and beyond since the entering into force of Directives 43/2000/EC, the Anti-Racism-Directive and 78/2000/EC, the Framework Employment Directive, extending the non-discrimination architecture of the European Union from the promotion of equality of men and women in the labour market to the prohibition of discrimination on grounds of ethnic origin, age, religion and belief, sexual orientation and disability. Equal treatment not only in the field of labour but also in access to goods and services has been made obligatory also beyond the field of labour for the areas of gender and ethnic affiliation. What does this mean in practise however? Does the legislative framework provided throughout Europe in different, but similar ways actually fulfil its purpose of combating discrimination and promoting equal treatment? It does only to a certain extent. What has been achieved by the implementation of equality and non-discrimination legislation in all Member States of the European Union is a significant rise in awareness about discrimination and a certain acceptance that it should not be tolerated at the side of administrative stakeholders and a big part of the business world. For those cases however, where discrimination takes place on purpose or due to structural mechanisms, the situation is still not satisfactory. We can discuss about different levels of protection for different groups, in different countries, in different areas of life. There definitely is a need to end the hierarchisation of grounds and to extend protection against discrimination to all areas of life. However, even in those countries, where there is a comprehensive law, the main problem is another one: it’s the limitations in accessing legal protections that are the weak point all over Europe.

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Rights Knowledge

The problems start with a low level of knowledge about the right not to be discriminated against. Surveys conducted by the Fundamental Rights Agency of the European Union (FRA) have shown that only one in every four, 25%, are aware that anti-discrimination legislation on the grounds of race and ethnicity exists in relation to the areas of employment, goods and services and housing.1 Awareness about the prohibition of discrimination is higher for difficulties in accessing employment on grounds of sexual orientation (56%) and gender identity (42%)2 and very low when it comes to Muslims with only one in three knowing about the prohibition.3

1.2

Underreporting

The problem continues, when persons, who have been discriminated against, do not report those incidents to the authorities in charge. Reporting rates, according to the European Union minorities and discrimination survey (EU-MIDIS)4 are as low as 18%. Rates are even lower for members of the Muslim (12%) and the LGBTI (10%)5 communities. Reasons for not reporting include the perception that reporting would not change anything, a hesitance to reveal sexual orientation or gender identity, the concern that incidents would not be taken seriously, a lack of knowledge, how and where to report, inconvenience, bureaucracy and time. Articles 7 Race and Employment Equality Directive in principle oblige Member States to take care that judicial and/or administrative procedures are available for persons affected by discrimination. Formally these obligations have been implemented in all Members States as well as in EU accession countries. Access to justice in practise however remains limited due to a variety of reasons. A study conducted by the Fundamental Rights Agency of the European Union (FRA) has revealed a number of factors that do constitute barriers in accessing one’s rights in discrimination cases.6 In many countries of the EU the legislative framework is highly complex making it difficult for those affected of discrimination to know, if what happened in their specific case is protected in their national or even just provincial context. Sometimes it is also not that clear, who would be the body in charge. This can be the case in countries, where competencies are distributed between equality bodies, ombud institutions and courts and/or different bodies are 1

FRA (2010). FRA (2014). 3 FRA (2017). 4 FRA (2010). 5 FRA (2017). 6 FRA (2012). 2

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in charge for different grounds and/or different areas of the legal infrastructure. The path to a legal decision is further made difficult by the problem of providing evidence and a lack of legal certainty due to a lack of case law. Study findings moreover have shown that the perspectives of what complainants can expect once they have decided to bring their case to the competent authority are another issue of concern. Low levels of compensation awarded, a lack of suitable tools beyond penalties and compensations and insufficient powers at the side of authorities to remedy a situation, such as to reinstate people to their pre-discrimination situation are no stimulating factors for persons affected by discrimination to undergo a legal procedure that requires time, energy and a re-confrontation with an unfavourable situation. Frequently, the follow-up on the enforcement of decisions is poor as well due to a lack of legal means or resources and they never come into force.

2 Procedural Issues Deficits in accessing justice require strong procedural rules that remove barriers for those affected by discrimination and bring more balance in the investment of reporting a case and the potential outcome. The EU anti-discrimination regime tackles questions of legal standing, the burden of proof, and it gives basic guidance on sanctions and remedies.

2.1

Legal Standing

In principle it is presumed that a person affected by a discrimination is also the one, who brings the case to court or another competent authority. Sometimes we are confronted with cases, where there is no concrete victim of discrimination or a person affected by discrimination does not want to proceed in a case. In such cases it is not so clear on first sight, who can bring the claim or if it is possible to bring a claim. In the Feryn Case,7 the CJEU, has made clear that the existence of direct discrimination is not dependant on the identification of a complainant who claims to have been the victim. The court has affirmed that associations with a legitimate interest in ensuring the compliance with the principle of non-discrimination can be given the right by national legislation to bring legal or administrative proceedings in the general interest of a group. This means that in countries, where the equality body or associations are entitled to bring a case in their own name or in the name of a

7 Case 54/07, Centrum voor gelijkheid van kansen en voor racismebestrijding v Firma Feryn NV (ECJ 10 July 2008).

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group—and in the interest of strengthening the principle of non-discrimination, like in Belgium, in Bulgaria, in France, in Norway, in Portugal, in Romania and in Serbia, they can do so, even if there is no explicit victim.

2.2

Burden of Proof

Acknowledging the fact that it tends to be very difficult for anyone affected by discrimination to provide evidence, the EU equality regime has introduced a shift of the burden of proof, if there is some kind of prima facie probability that discrimination had taken place. In concrete, plaintiffs have to establish. . . facts from which it may be presumed that there has been direct or indirect discrimination. If so, it shall be for the respondent to prove that there has been no breach of the principle of equal treatment.8 This rule—deviating from the general legal principle that it is up to the party that asserts to establish the facts that are necessary to prove the claim—had been developed by the Court of Justice of the European Union (CJEU) in its case law (Enderby9). When the burden of proof actually should be shifted in practise has remained a difficult question for judges and has contributed to a certain hesitance to apply the rule. The Court in recent years has brought some enlightment on this question. In Feryn, it has determined that public statements, by which an employer lets it be known that under its recruitment policy it will not recruit any employees of a certain ethnic or racial origin are sufficient for a presumption of the existence of a recruitment policy, which is directly discriminatory. It is then for that employer to prove that there was no breach of the principle of equal treatment. It can do so by showing that the undertaking’s actual recruitment practice does not correspond to those statements. In ACCEPT10 several aspects in relation to the burden of proof were addressed, namely what kind of evidence is required to rebut the presumption of a discriminatory motive when this presumption is based on overtly homophobic remarks. According to the court, it is not required to produce evidence, such as information about the sexual orientation of other players, if that would interfere with those individuals’ right to privacy. Suspected discrimination on the grounds of sexual orientation could be refuted with a body of “consistent evidence”, e.g. the existence of an Equal Opportunities Recruitment Policy.

8

Racial Equality Directive (Article 8), Employment Equality Directive (Article 10), the Goods and Services Directive (Article 9) and the Recast Gender Directive (Article 19). 9 Case 127/92, Enderby v Frenchay Health Authority (ECJ 27 October 1993), ECR I-5535. 10 Case 81/12, Asociaţia Accept v Consiliul Naţional pentru Combaterea Discriminării (ECJ 25 April 2013).

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3 Remedies and Sanctions Articles 15 of Directive 2000/43/EC and 17 of Directive 2000/78/EC) require Member States to lay down rules on sanctions for cases of infringement of the national provisions adopted pursuant to respective Directives and to 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. Similar requirements with slightly different wording are defined by Article 14 of Directive 2004/113/EC (penalties), Article 18 (compensation or reparation) and 25 (penalties) of Directive 2006/54/EC, Art. 10 of Directive 2010/41/EU (compensation or reparation). Legal provisions that determine sanctions and remedies to be applied in discrimination cases are scattered throughout the legislation at the level of the national states. The Anti-Discrimination Directives have left the decision of how and where to address discrimination cases in terms of sanctions to the Member States, as long as they are laid down in a way, that they are effective, proportionate and dissuasive and that all measures necessary are taken in order to ensure that they are applied. Ideally, according to Cohen,11 sanctions should have the potential to protect also other persons in a comparable situation. Cohen also points at the question of perspective in assessing effectiveness, proportionality and dissuasiveness, and she recommends to take into account what discriminators or potential discriminators least want to lose when aiming to adopt remedies with a dissuasive character. Monitoring the compliance with their (non-binding) recommendations was identified as a key aspect for enhancing the effectiveness of sanctions by a study on equality bodies published by the European Commission in 2010.12 A report published by the European Commission in 2011 on access to justice in gender and anti-discrimination law gives several examples of remedies applied in discrimination cases, which illustrate the diversity of sanctions and even more so the different amounts of compensation payments in different national contexts—from EUR 200 in the Czech Republic to EUR 12.000 in Norway.13 National experts and stakeholders consulted for this study did not consider the vast majority of sanctions in place for violations of anti-discrimination legislation at national level to be effective, proportionate and dissuasive. When comparing the amounts of sanctions awarded with the average national salary and taking into account the length and costs of procedures as well as the emotional efforts involved in litigation the remedies typically awarded would discourage alleged victims from seeking justice. A study commissioned by the Fundamental Rights Agency of the European Union (FRA) on access to justice in discrimination cases14 laid a specific focus on the views of those affected by discrimination in relation to the effectiveness of 11

Cohen (2004). Ammer et al. (2010), p. 96. 13 Milieu (2011), p. 39. 14 FRA (2012). 12

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sanctions and remedies. Main goals of complainants according to study findings were the termination of discrimination, such as removal of barriers and re-instatement to the position lost, the recognition of discrimination and the prevention of discrimination to protect others in the future. Monetary compensation and an apology from or punishment of the discriminator were also mentioned but given less importance to. Dissatisfaction resulted from having obtained non-binding decisions or the acknowledgement that also if a case had been won, no changes could have been obtained for their actual situation.15 A comparative overview of sanctions and remedies in discrimination cases in Europe and their compliance with the principles of effectiveness, proportionality and dissuasiveness published by the EU Equality Law Network16 has underlined that dissuasiveness in most countries can be affected by the limited number of proactive remedies and failures to ensure adequate monitoring, proportionality can be affected by the absence of sentencing or compensation guidelines, and effectiveness may be affected be the creation of an ‘equality hierarchy’ meaning that different remedies are available depending on the ground protected or the field of discrimination.

3.1

Case Law

The European Court of Human Rights (ECtHR) and the CJEU have been confronted with questions on how sanctions have to be designed in order to be in line with human rights standards. Whilst the requirements of effectiveness, appropriateness and persuasiveness have been lied down in the EU AD Directives, the ECtHR in its case law has adopted a similar approach stating that States are required under Articles 11 and 14 of the Convention to set up a judicial system that ensures real and effective protection against . . . discrimination.17 The CJEU has developed a rich case law, acknowledging that the Directives do not require any specific form of sanctions, but that in order to ensure that it is effective and that it has a deterrent effect, [. . .] compensation must in any event be adequate in relation to the damage sustained.18 Mere symbolic sanctions19 do not fulfil these criteria, the Court even states that beyond a guarantee of real and effective protection, a sanction should have a real deterrent effect.20 This can, if in principle

15

FRA (2012), p. 45. Jordache and Ionescu (2014). 17 Appl. no. 67336/01, Danilenkov and Others v Russia (ECtHR, Chamber Judgment 30.09.2009). 18 Case 14/83, Sabine von Colson and Elisabeth Kamann v Land Nordrhein-Westfalen (ECJ 10 April 1984). 19 Case 81/12, Asociaţia Accept v Consiliul Naţional pentru Combaterea Discriminării (ECJ 25 April 2013). 20 Case 177/88, Elisabeth Johanna Pacifica Dekker v Stichting Vormingscentrum voor Jong Volwassenen (VJV-Centrum) Plus (ECJ 8 November 1990). 16

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possible in the relevant national context, also include punitive damages.21 The establishment of a priori upper limits of compensation has not been considered as effective in Marshall C-271/9122 whilst it might be adequate for cases, where the unsuccessful applicant would not have obtained the vacant post, even if there had been no discrimination in the selection process.23 This approach was later on taken up by the Recast Directive.24 Questions of fault should not determine, if a sanction is imposed or not25 nor does the absence of a concrete victim constitute a barrier for imposing a sanction.26 Enforcement of judgements remains a point of concern, which has been addressed critically by the ECtHR in García Mateos v. Spain,27 when it refers to a State obligation to provide litigants with a system whereby they are able to secure the proper execution of domestic court decisions, an absence of such characterised as a violation of Article 6.1 in conjunction with Article 14 of the Convention.

3.2

Dissuasiveness, Proportionality and Effectiveness: Obstacles and Challenges

A set of obstacles and challenges for sanctions regimes in anti-discrimination cases were identified by literature reviewed28 and by equality bodies involved in the research for a study conducted for Equinet, the network of European Equality Bodies.29 First of all, we have to confront ourselves with the acknowledgement that there is no ideal sanction for each and any case. Complainants are hesitant to report a case due to a fear of retaliation, the complexity, lengthiness and costs of procedures, the lack of legal certainty and the poor prospects of success, low levels of compensation either foreseen in law and/or issued by Court (unproportionality, lack of dissuasiveness), non-binding decisions issued by some quasi-judicial equality bodies (lack of effectiveness), a lack of suitable tools beyond penalties and 21

Case C-407/14, María Auxiliadora Arjona Camacho v Securitas Seguridad España, S.A. (ECJ (Fourth Chamber) 17 December 2015). 22 Case C-271/91, M. Helen Marshall v Southampton and South-West Hampshire Area Health Authority (ECJ 2 August 1993). 23 Case C-180/95, Nils Draehmpaehl v Urania Immobilienservice OHG (ECJ 22 April 1997). 24 Council Direktive 2006/54/EC on the implementation of the principle of equal opportunities and equal treatment of men and women in matters of employment and occupation (recast), OJ L 204/23 (2006). 25 Case 177/88, Elisabeth Johanna Pacifica Dekker v Stichting Vormingscentrum voor Jong Volwassenen (VJV-Centrum) Plus (ECJ 8 November 1990). 26 Case 54/07, Centrum voor gelijkheid van kansen en voor racismebestrijding v Firma Feryn NV (ECJ 10 July 2008). 27 Appl. no. 38285/09, García Mateos v Spain (ECtHR Judgment 19 February 2013). 28 Mostly FRA (2012), p. 46. 29 Wladasch (2015).

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compensation (that would serve the interests of the victims, victims group and/or have a preventive character), insufficient powers to remedy a situation, such as to reinstate people to their pre-discrimination situation, low chances to achieve adequate compensation, specifically for immaterial damages, lack of experience in and sensitivity for discrimination cases on the side of the judiciary, difficulty to prove the facts of discrimination and the effects thereof, the limited awareness at the side of the judiciary about the need to take preventive facts into consideration, limited followup on the enforcement of decisions and the lack of structured and efficient monitoring procedures.

3.3

Strategies to Ensure Dissuasiveness, Proportionality and Effectiveness

When deciding on the ideal sanction, in concrete for the questions, what to claim for and which sanction to issue, two very important and interconnected factors have to be taken into account. Different models of sanctions and remedies are adequate for different objectives. And the choice of the objective is crucial and depends of various factors like the interest of the person or group affected by discrimination and/or the interest of an interest group or equality body. This means that, when bringing a case—or proceeding a case in the role of attorney, NGO providing assistance, equality body, tribunal or court—it is first of all important to take into consideration all circumstances of the case as well as the individual wants of the person or group affected by discrimination. The quality of sanctions can be improved by seeking justice, where those making the decision are experts for discrimination cases (specialised tribunals, tribunal type equality bodies), where costs of procedures are low (most specialised tribunals and tribunal type equality bodies do not request any fees), with a body that has a certain (legal) standing, with a body that can issue legally binding decisions, making wider use of alternatives to compensations and fines, like court orders to stop the discrimination, revocation or annulment of the discriminatory act, reinstatement of an employee—when applicable in the national context, publicity of a decision, judgement and/or a concrete sanction issued, especially in order to enforce a judgement and/or take care that a sanction is complied with and by monitoring the enforcement of decisions. Access to justice more generally can be improved by providing easy access to relevant information for (potential) victims of discrimination, making also relevant case law easily accessible, supporting judges in understanding and applying the shift of burden of proof and in developing further sensitivity to issues of diversity and discrimination, in understanding and applying the concepts of immaterial and aggravated damages and of multiple discrimination. With a view to a change of the system beyond the individual case the role of NGOs and equality bodies has been crucial. Strategic litigation as a tool to create a

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critical mass of cases to achieve change and to provide for legal certainty should be used more widely. This also means that in national contexts, where this is not the case, the legal standing of NGOs and equality bodies to claim for collective redress has to be widened. Only with adequate powers attributed to key stakeholders access to effective remedies for the individual can be enabled—ideally with the consequence of enhancing effectiveness, proportionality and dissuasiveness of antidiscrimination law on the general level.

References Ammer, Margit, Niall Crowley, Barbara Liegl, Elisabeth Holzleithner, Kathrin Wladasch, and Kutsal Yesilkagit. 2010. Study on Equality Bodies Set Up under Directives 2000/43/EC, 2004/113/EC and 2006/54/EC – Synthesis Report. . Accessed 30 June 2019. Cohen, Barbara. 2004. Remedies and Sanctions for Discrimination in Working Life under the EC Anti-Discrimination Directives. In Discrimination in the Working Life: Remedies and Enforcement, Towards the Uniform and Dynamic Implementation of EU Anti-Discrimination Legislation: The Role of Equality Bodies, Report of the fourth experts’ meeting, hosted by the Swedish Ombudsman Against Ethnic Discrimination, 14–15 October 2013. pp. 16–25 . Accessed 14 October 2019. FRA. 2010. EU Midis: Data in Focus Report 3: Rights Awareness and Equality Bodies. . Accessed 30 June 2019. ———. 2012. Access to Justice in Cases of Discrimination in the EU – Steps to Further Equality. . Accessed 30 June 2019. ———. 2014. EU LGBT Survey, European Union Lesbian, Gay, Bisexual and Transgender Survey. Main Results. . Accessed 30 June 2019. ———. 2017. Second European Union Minorities and Discrimination Survey Muslims – Selected findings. . Accessed 30 June 2019. Jordache, Romanita, and Iustina Ionescu. 2014. Discrimination and its Sanctions – Symbolic vs. Effective Remedies in European Anti-Discrimination Law. European AntiDiscrimination Law Review 19: 11–24. Milieu. 2011. Comparative Study on Access to Justice in Gender Equality and Anti-Discrimination Law, Study Prepared for the European Commission. . Accessed 30 June 2019. Wladasch, Katrin. 2015. The Sanctions Regime in Discrimination Cases and its Effects. An Equinet Paper. . Accessed 14 October 2019.

Substantive Formal Equality in EU Non-Discrimination Law Marc De Vos

Contents 1 Non-discrimination and Equality in EU Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 Watering Down Formal Direct Discrimination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 The Substantive Nature of Indirect Discrimination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 Substantive Differential Treatment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 Substantive Positive Discrimination as an Exception to Formal Equality . . . . . . . . . . . . . . . . . 6 Substantive Positive Discrimination as a Limitation of Formal Equality . . . . . . . . . . . . . . . . . . 7 Conclusion: Pragmatism and Discretion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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Abstract For over 50 years, non-discrimination under EU-law has developed under the aegis of a formal, procedural Aristotelian approach to equality. Against this backdrop, this paper explores how a number of CJEU cases adopt a more substantive approach to non-discrimination. It documents standout cases that embrace substantive equality in direct and indirect discrimination. It explores how the CJEU has promoted substantive equality in cases of non-discriminatory differential treatment, and through positive action or discrimination. It shows how formal EU equality law has gradually been retooled towards substantive equality aims, redefining piecemeal the overarching purpose of EU equality law in the process.

I thank my good colleague Christa Tobler (University of Leiden) for her thoughtful comments on the draft of this chapter. All opinions and errors are mine. M. De Vos (*) Macquarie University, Law School, Sydney, NSW, Australia e-mail: [email protected] © Springer Nature Switzerland AG 2020 T. Giegerich (ed.), The European Union as Protector and Promoter of Equality, European Union and its Neighbours in a Globalized World 1, https://doi.org/10.1007/978-3-030-43764-0_13

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1 Non-discrimination and Equality in EU Law Equality and non-discrimination are complex notions rooted in philosophical, political and constitutional traditions. In modern times, European countries have pursued equality and non-discrimination beyond rule of law principles of citizenship and ‘equality before the law’. The welfare state can be seen as a societal model to promote effective socioeconomic equality of opportunity through entitlements that reduce chance and increase merit. Non-discrimination law is used to extend the vertical principle of equality, rooted in rule of law and constitutional neutrality principles, either beyond the state per se or in horizontal relationships between private parties. In its horizontal dimension, non-discrimination restricts the scope of freedom for private actors. In its vertical dimension it limits or directs the course of political or collective action. Against this sensitive backdrop arises the fundamental question what ‘equality’ or ‘non-discrimination’ actually means. With a large degree of simplification, two models of equality and its legal protection can be discerned. The ‘formal’, ‘liberal’ or ‘symmetrical’ approach is based on ‘individual justice’ and ‘the merit principle’. This model focuses on equality for individuals, formal neutrality, and procedural justice. The ‘substantive’, ‘asymmetrical’ or ‘group justice’ approach focuses on group characteristics and (dis)advantages, group impact, actual results, material equality and desired outcomes. Somewhere in between those two poles lies the middle ground of ‘equality of opportunities’ which combines elements of both and which itself can be stretched towards either the formal or the substantive end (see De Vos 2007 and the references there; Roemer 1998). Formal equality essentially means that likes should be treated alike, period. It emphasizes neutrality expressed through equal treatment of comparable situations, or differential treatment of incomparable situations. It requires comparison with a comparator in order to establish discrimination, it is essentially passive and static vis-à-vis the context of the comparison, it does not assure any particular outcome, and it disregards the collective dimensions of individual inequality such as group membership, structural inequality or societal realities. In short, formal equality does not address the critical question of ‘equal to whom?’ This is where substantive equality comes in. Substantive equality looks at context to achieve outcomes that are considered desirable. It moves beyond or away from individual merit-based comparison to account for the broader context that affects personal merit, it is dynamic in its ambition to influence that context and improve desired outcomes, internalizing various collective or societal dimensions along the way. Depending on its angle or agenda, substantive equality and non-discrimination aim to redress existing or historical disadvantages, to address stigma, stereotyping, prejudice or violence, to enhance voice and participation, or to accommodate differences and achieve structural societal change.1

1

Fredman (2016).

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The European Union’s equality and non-discrimination law cannot be placed into any particular camp. This is due to the varying role of equality in different areas of EU law, to the expansion of equality and non-discrimination principles through the historical evolution of EU treaties, and to its gradual development through case-law. Indeed, the story of equality and non-discrimination law in the European Union is essentially one of step-by-step organic development via an ever expanding array of case-law, treaty changes and secondary EU legislation without an overarching conceptual framework.2 This variety notwithstanding, the Court of Justice of the European Union (hereinafter: CJEU) for over 50 years has consistently defined discrimination as the ‘application of different rules to comparable situations or the application of the same rule to different situations’.3 This definition manifests a formal, procedural Aristotelian approach to equality.4 The first tenet of the definition promotes formally equal treatment in comparable situations, irrespective of outcome. From that perspective, the primary emphasis of EU equality law lies clearly on formal equality.5 The second tenet of the definition questions formally equal rules for different situations. While it does integrate a substantive assessment of difference in its assessment of comparability and implies a need for rule differentiation, it does not consider context and does not prescribe any specific substantive differential treatment goals. The formal approach to non-discrimination under EU law arose under the auspices of the then European Economic Community and it is often tied to that economic DNA. Formal equality and neutrality indeed fit an overarching goal of free trade and free movement through an open internal market. Their social dimension of non-discrimination can be seen as instrumental for the economic purpose of free movement of people, services, goods, and capital. In this regard, non-discrimination primarily serves economic integration and is therefore naturally nonprescriptive in substance.6 The European Union has moved on from its economic origins. Non-discrimination is now recognized as a fundamental right and as a general principle of EU law, not in the least by the CJEU itself. Prohibitions of discrimination under EU law are now seen as a fundamental social rights that build European

2

Comp. McCrudden (2003), pp. 3–6. See e.g., Case 13/63, Government of the Italian Republic v Commission of the European Economic Community, (ECJ 17 July 1963); Case 283/83, Racke v Hauptzollamt Mainz, (ECJ 13 November 1984); Case T-10/93, A v Commission, (ECJ 14 April 1994); Case C-279/93, Finanzampt KölnAlstadt v Roland Schumacker, (ECJ 14 February 1995); Case C-137/00, Milk Marque and National Farmers’ Union, (ECJ 9 September 2003); Case C-157/02, Rieser Internationale Transporte GmbH v Autobahnen- und Schnellstraßen-Finanzierungs- AG (Asfinag), (ECJ 5 February 2004); Case C-304/01, Spain v Commission, (ECJ 9 September 2004); Case C-486/18, RE v Praxair, (ECJ 8 May 2019). 4 De Vos (2007) and Tobler (2014). 5 Tobler (2005), pp. 26–28; Wentholt (1999), pp. 53–55. 6 Comp. Haverkort (2012). 3

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citizenship rights.7 This is testified by EU non-discrimination law expanding well beyond nationality and gender towards a wide range of protected grounds that do not serve an agenda of economic market integration. The language of the evolving EU treaties and of the EU Charter of Fundamental Rights now emphasizes equality per se and embraces European human rights law as primary EU law, against the backdrop of increasing attention to social justice and equal opportunities.8 The recent European Pillar of Social Rights strives for equal treatment and opportunities across the board, through an array of positive duties and entitlements. These important evolutions, however, have not affected the formal general definition of non-discrimination under EU-law. The case-law of the CJEU, as well as the statutory prohibitions of discrimination in various EU directives, continue to define non-discrimination through a formal lens that derives discrimination from a difference in treatment in comparable situations. In what has now become a uniform statutory EU-law definition amidst a gradual proliferation of protected characteristics, (a) direct discrimination shall be taken to occur where one person is treated less favourably than another is, has been or would be treated in a comparable situation on grounds of (the protected characteristic); (b) indirect discrimination shall be taken to occur where an apparently neutral provision, criterion or practice would put persons of (the protected characteristic) at a particular disadvantage compared with other persons, unless that provision, criterion or practice is objectively justified by a legitimate aim and the means of achieving that aim are appropriate and necessary.9

The concept of non-discrimination as an EU fundamental right thus remains tied to an understanding of legal equality requiring similar situations to be treated in the same manner and different situations to be treated differently on the basis of their difference. Indeed this is also true, notwithstanding genuine differences in interpretation and implementation, for non-discrimination as a human right under the European Convention on Human Rights and in the case-law of the European Court of Human Rights.10 Both under EU law and under European human rights law, therefore, formal non-discrimination has become a fundamental right, coexists with clearly 7

Bell (2002). Barnard (2014). 9 See Council Directive 2000/43/EC implementing the principle of equal treatment between persons irrespective of racial or ethnic origin OJ L 180/22–26 (2000) (hereinafter Race and Ethnic Origin Directive); Council Directive 2000/78/EC establishing a general framework for equal treatment in employment and occupation OJ L 303/16–22 (2000) (hereinafter General Framework Directive); Council Directive 2004/113/EC implementing the principle of equal treatment between men and women in the access to and supply of goods and services, OJ L 373/37–43 (2004); Council Directive 2006/54/EC on the implementation of the principle of equal opportunities and equal treatment of men and women in matters of employment and occupation (recast) OJ L 204/23–36 (2006); Council Directive 2010/41/EU on the application of the principle of equal treatment between men and women engaged in an activity in a self-employed capacity, OJ L 180/1–6 (2010). 10 See Tobler (2014). 8

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substantive fundamental rights and freedoms, and supports their implementation. This suggests the distinction between form and substance may not be as clear or as binary as is often assumed. To test and illustrate this hypothesis, this contribution focuses on CJEU case-law that blends substantive dimensions into its existing and overarching formal approach to non-discrimination. Like the overall body of EU discrimination law itself, its analysis is organic and punctual. It simply seeks to identify and highlight how the CJEU practices substantive equality while preaching formal non-discrimination, thereby mixing substantive goals with formal equality. It subsequently uses this blended ‘substantive formal equality’ approach to reassess the state of the law regarding positive discrimination.

2 Watering Down Formal Direct Discrimination Direct discrimination epitomizes formal equality under EU law. As we have seen, it depends on one person being treated on grounds of a protected characteristic such as nationality, gender, sexual orientation, age, religion, and racial or ethnic origin, in a less favourably way than another person who is in comparable situation. Without the personal comparator and without the differential treatment being directly caused by the protected ground there is no discrimination. By contrast, in a substantive equality discourse the focus would lie on actual outcomes across society or for a given group member in view of whatever dominant policy concern. The causal nexus between characteristic and treatment would be less relevant, as would be the reductionist focus on a specifically protected characteristic and/or the formal comparison with other groups and their members. However, this contrast between form and substance has been significantly reduced by the Court of Justice. Without abandoning formal direct discrimination in principle, the Court has repeatedly applied it in a way that brings it closer to substantive equality in practice. In Feryn, a company director had made public statements to the effect that his undertaking was looking to recruit fitters for installing sectional doors, but that it could not employ ‘immigrants’ because its customers were reluctant to give them access to their residences. The CJEU had to decide whether the label of direct discrimination on grounds of ethnic origin applied. Any straightforward formal approach would suggest it does not. Mere statements from a company director are just that, there is no identifiable treatment, no victim, let alone an identifiable comparator. Nevertheless, the Court opted for direct discrimination on the premise that the Race and Ethnic Origin Directive aims ‘to foster conditions for a socially inclusive labour market’. This objective would be hard to achieve if its scope were to be limited to those cases in which an unsuccessful candidate for a post, considering himself to be the victim of direct discrimination, brought legal proceedings against the employer. Hence, public declarations which are likely to strongly dissuade certain candidates from submitting their candidature and, accordingly, to hinder

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their access to the labour market, constitute direct discrimination.11 The Court of Justice thus accepts statements as direct discrimination on the assumption that the prohibition of formal direct discrimination serves substantive societal aims, in the process reinterpreting formal non-discrimination very substantively indeed. Feryn is but an extreme example of a wider trend that sees the Court water down the victim-comparator-causation triangle underpinning formal equality. The required causal link between treatment and protected characteristic has been extended from discriminatory motive to include every direct objective correlation. Hence, in Coleman the CJEU could apply direct discrimination on grounds of disability to an employee who was treated less favourably by reason of the disability of her child, for whom she was the primary care provider. Even though the employee concerned was not herself disabled, there is a direct correlation between treatment and disability in the abstract. This suffices to establish direct disability discrimination because the General Framework Directive, in the Court’s opinion, seeks to foster a broad level playing field as regards equality in employment and occupation.12 In the same vein, in CHEZ the Court ruled that the prohibition of direct racial discrimination also benefits persons who, although not themselves a member of the race or ethnic group concerned, nevertheless suffer less favourable treatment on one of those grounds.13 Whether through declaration, association or perception: when a treatment can be objectively linked to a protected characteristic the Court will predictably deduce direct discrimination because of the admitted substantive aim of formal non-discrimination, watering down formal requirements in the process. A similar reasoning has allowed the CJEU to extend the reach of a formally protected characteristic to another characteristic if the latter is intrinsically tied to the former. In Dekker, the Court had to assess a refusal of employment on account of the financial consequences of absence from work due to pregnancy. It tersely stated ‘that only women can be refused employment on grounds of pregnancy and such a refusal therefore constitutes direct discrimination on grounds of sex’.14 The Court equates a refusal of employment because of the financial consequences of pregnancy with pregnancy itself, and further equates pregnancy with ‘sex’ since only women can get pregnant. In subsequent cases on maternity leave the Court has gone one round further, first tying maternity leave to pregnancy, then pregnancy to sex again, condemning as direct sex discrimination any unfavourable treatment because of absence on maternity leave.15

11

Case C-54/07, Centrum voor gelijkheid van kansen en voor racismebestrijding v Firma Feryn NV, (ECJ 10 July 2008). 12 Case C-303/06, S. Coleman v Attridge Law and Steve Law, (ECJ 17 July 2008), para. 47. 13 Case C-83/14, CHEZ Razpredelenie Bulgaria AD v Komisia za zashtita ot diskriminatsia, (ECJ 16 July 2015). The Court developed its reasoning both for direct and indirect discrimination. 14 Case C-177/88, Elisabeth Johanna Pacifica Dekker v Stichting Vormingscentrum voor Jong Volwassenen (VJV-Centrum) Plus, (ECJ 8 November 1990), para. 12. 15 Case C-342/93, Joan Gillespie and others v Northern Health and Social Services Boards, (ECJ 13 February 1996), para. 22; Case C-147/02, Michelle K. Alabaster v Woolwich plc and Secretary

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By identifying as direct ‘sex discrimination’ treatments that are tied to characteristics directly linked with sex, the Court pushes the formal prohibition of discrimination ‘on grounds of sex’ towards a much more substantive prohibition of gender related discrimination. The Court has gone on to explore this approach in cases challenging unfavourable treatment in relation to intended or actual gender reassignment. As in Dekker, the intimate nexus with ‘sex’ per se can convince the Court of direct sex discrimination even if the treatment concerned is not based on the fact that a person is of one or the other sex. The substantive aims of formal non-discrimination to guarantee equal treatment of men and women, or to protect freedom and dignity, are invoked to extend its scope well beyond its formal bearings.16 The Court has not yet fully equated all matters of gender identity with ‘sex’, but it has clearly moved beyond formal sex discrimination as such.17 Similarly, the CJEU has repeatedly treated requirements of marital status as direct discrimination on grounds of sexual orientation whenever marriage is only legally possible between persons of different sexes.18 When marriage is inseparable from sexual orientation it becomes equated with sexual orientation for the purpose of non-discrimination, thus mobilizing formal equality in the very substantive debate on marriage equality. In essence, the prohibition of direct discrimination under EU law has expanded to include treatment that, while not formally differentiating on grounds of a protected characteristic, is substantively identical because it affects only the protected group or a subgroup. Dekker is considered an outlier by accepting a case of direct discrimination in the absence of any actual comparator. There was no male candidate to compare Dekker’s treatment with, but the Court nonetheless ruled direct discrimination to be established simply because the reason for the refusal of employment was clearly established. ‘If that reason is to be found in the fact that the person concerned is pregnant, then the decision is directly linked to the sex of the candidate. In those circumstances the absence of male candidates cannot affect the answer (. . .).’19 It is indeed rare to see the Court explicitly reject the requirement of a comparator it systematically requires in its definitions of discrimination. But Dekker can also be read in another way. The comparator is required to establish the reality of differential

of State for Social Security, (ECJ 30 March 2004), para. 47; Case C-284/02, Land Brandenburg v Ursula Sass, (ECJ 18 November 2004), para. 36. 16 See Case C-13/94, P. v S. and Cornwall City Council, (ECJ 30 April 1996); Case C-117/01, K.B. v National Health Service Pensions Agency, Secretary of State for Health, (ECJ 7 January 2004); Case C-423/04, Sarah Margaret Richards v Secretary of State for Work and Pensions, (ECJ 27 April 2006). 17 See Bell (2012). 18 Case C-267/06, Tadao Maruko v Versorgungsanstalt der deutschen Bühnen, (ECJ 1 April 2008); Case C-147/08, Jürgen Römer v Freie und Hansestadt Hamburg, (ECJ 10 May 2011); Case C267/12, Frédéric Hay v Crédit agricole mutuel de Charente-Maritime et des Deux-Sèvres, (ECJ 12 December 2013). 19 Case C-177/88, Elisabeth Johanna Pacifica Dekker v Stichting Vormingscentrum voor Jong Volwassenen (VJV-Centrum) Plus, (ECJ 8 November 1990), para. 17.

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treatment under formal equality. If and when the reason for a specific treatment is established as being ‘sex’ or ‘directly linked to sex’, it is also established that the victim would have been treated differently had it been of a different sex. When the dominant causation is proven to be the protected characteristic, one does not need to identify an actual comparator because causation intrinsically guarantees potential differential treatment. Proof of direct causation thus implies proof of a virtual comparator. Dekker can be seen to anticipate the contemporary EU law definition of discrimination as one person who is treated less favourably ‘than another is, has been or would be treated’ (my italics).20 Proof of dominant causation proves one would have been treated differently, but for the characteristic. By allowing the comparison to go beyond the real-time actual comparator to the potential comparator, EU law has significantly moved away from formal equality towards substantive equality. When treatment ‘because of’ suffices to establish discrimination, the victim-comparator-causation triangle collapses on itself. Causation means comparison, and the outcome is barely distinguishable from substantive equality that shuns comparison for the sake of group protection per se.

3 The Substantive Nature of Indirect Discrimination Indirect discrimination today is an integral part of the EU legal equality fabric. But under the formal equality approach discrimination is understood to address treatments based on prohibited characteristics. In the beginning, there was only direct discrimination. Then came the CJEU. In Sotgiu, workers employed away from their place of residence were entitled to a higher allowance if they had lived in Germany at the time of their initial employment. The Court had to ponder nationality discrimination in relation to a residential requirement which ostensibly is not a nationality requirement. The Court was moved to look beyond the formal in a passage which is worth quoting in full: The 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. This interpretation, which is necessary to ensure the effective working of one of the fundamental principles of the Community, is explicitly recognized by the fifth recital of the preamble to Regulation No 1612/68 which requires that equality of treatment of workers shall be ensured ‘in fact and in law’. It may therefore be that criteria such as place of origin or residence of a worker may,

20

In Dekker, the identification of a virtual comparator of a different sex would of course be impossible if the scope of comparability were limited to pregnancy per se and not to absence from work. Such a narrow approach may explain the Court’s motivation in rejecting the need for a comparator.

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according to circumstances, be tantamount, as regards their practical effect, to discrimination on the grounds of nationality, such as is prohibited by the Treaty and the Regulation.21

A clearer expression of the substantive goals behind EU non-discrimination law cannot be found. At the time when non-discrimination was all about formal neutrality for the benefit of economic free movement, the Court single-handedly introduces a concept that puts substance over form. Indirect discrimination rests upon the cardinal assumption that a formally neutral measure is suspicious when it has substantive disadvantages for a formally protected group. By acknowledging that formal neutrality can disadvantage a protected group, first the Court and later the entire statutory construct of EU equality law acknowledge the importance of structural and group differences in the application of individual formal equality. When a differential treatment between part-time and fulltime work is suspicious because it disproportionately affects women, to name a famous example, indirect sex discrimination recognizes the differences in career opportunities that partly explain why women tend to work more part-time than men. When sartorial neutrality at work is suspicious because it disproportionately affects practicing Muslims who wear the headscarf, to name another, indirect religious discrimination expresses the differences in religious traditions and their conflict with secularism in a multicultural society. Indirect discrimination goes a long way in providing the formalism of EU non-discrimination law with a substantive soul. The deeply substantive nature of indirect discrimination is further illustrated by its judicial interpretation. Everything hinges on the ‘disparate impact’ of an apparently neutral provision, criterion or practice. How strict is disparate impact to be construed in terms of evidence and threshold? A formal approach would require clear numerical and statistical parameters in need of careful verification. A substantive approach would want to leave room for appreciation. After all, one cannot reduce the relevance or irrelevance of broad societal differences to arbitrary percentages. And indeed, that is the way the case-law has gone. The CJEU has shunned fixed criteria, has occasionally downplayed or avoided comparability assessments in establishing indirect discrimination, and has allowed national judges ample discretion for motivating their conclusions with bland impact statements.22 In O’Flynn, the CJEU had to assess whether a payment scheme for funeral costs violated the prohibition of nationality discrimination by limiting reimbursement to funerals on British soil. The Court stated emphatically that ‘a provision of national law must be regarded as indirectly discriminatory if it is intrinsically able to affect migrant workers more than national workers and if there is a consequent risk that it will place the former at a particular disadvantage. It is not necessary in this respect to find that the provision in question does in practice affect a substantially higher proportion of migrant workers. It is sufficient that it is liable to have such an

21

Case 152/73, Giovanni Maria Sotgiu v Deutsche Bundespost, (ECJ 12 February 1974), para. 11. The Court had first acknowledged indirect discrimination in Case 15/69, Württembergische Milchverwertung-Südmilch AG v Salvatore Ugliola, (ECJ 15 October 1969). 22 See Tobler (2009).

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effect’.23 Just as direct discrimination can operate through a mere potential comparator, indirect discrimination exists when an ‘apparently neutral provision, criterion or practice would put persons of (the protected characteristic) at a particular disadvantage’.24 Therefore, EU non-discrimination law can hold parties liable for sheer societal realities, irrespective of their role in these realities and irrespective of how the affected group fares within their own organisation. Through potential adverse impact the substantive purpose of indirect discrimination is pushed to the extreme. Hence, in Seymour Smith, the CJEU had no difficulties solving the conundrum whether a 2 year seniority condition to the protection against unfair dismissal constituted indirect sex discrimination. The parties had dazzled the court with exhortations on statistical significance, markedly different impact and disproportionate effect. While stressing the need for ‘considerable’ impact, the Court sided with a statistical comparison of ‘the respective proportions of men in the workforce able to satisfy the requirement of two years’ employment under the disputed rule and of those unable to do so, and, on the other, to compare those proportions as regards women in the workforce’.25 Workforce data are publicly available and allow to gauge impact on a theoretical national level, irrespective of the practical reality on the ground. Indirect discrimination is again deduced from potential impact only, disregarding the actual statistical reality at the level of the company where the dismissal took place. And it does not end there. Contrary to direct discrimination, the prohibition of indirect discrimination is an open principle that allows for justification. A defendant will escape liability if the contested provision, criterion or practice, notwithstanding its disparate impact, ‘is objectively justified by a legitimate aim and the means of achieving that aim are appropriate and necessary’. Justification is a two-edged sword. On the one hand it allows genuine and legitimate private aims to stand, since the contested treatment is not overtly discriminatory. On the other hand it implies that parties run the risk of exposure to indirect discrimination claims if their organisation or practices have actual or potential indirect discriminatory impact and are not determined by legitimate aims in an effective and proportionate way. To the extent that EU law prohibits unjustifiable indirect discrimination it effectively demands the avoidance of such discrimination through positive anticipation or accommodation of group differences. A limited duty of preventive positive action is therefore implicit in the prohibition of indirect discrimination.26 Indirect discrimination will arise by failing to take due and positive account of relevant group differences between persons in comparable situations or by failing to ensure that rights and advantages are open and accessible under conditions that only differentiate on legitimate grounds. Predictably, the issue of justification has become a bone

23

Case C-237/94, John O’Flynn and Adjudication Officer, (ECJ 23 May 1996), paras. 20–21. See the directives mentioned in footnote 2, my italics. 25 Case C-167/97, Regina v Secretary of State for Employment, ex parte Nicole Seymour-Smith and Laura Perez, (ECJ 9 February 1999), paras. 59 and 62. 26 De Vos (2007) and Tobler (2009). 24

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of contention, with ample evidence of varying standards and seesawing case-law depending on the protected characteristic, the parties involved, and the nature and origin of the contested measures.27 Substantive justification introduces policy and politics through the backdoor of formal equality. In the recent landmark case of Achbita, the CJEU even went beyond mere justification to require additional accommodation for a Muslim woman affected by a workplace headscarf ban the Court had found to be justifiable.28 Indirect discrimination has clearly detached EU equality law from a rigid set of protected characteristics and has pushed it towards a more comprehensively substantive equality approach, albeit without severing the umbilical cord with formal equality. It has enabled case-law to incorporate structural and societal causes of inequality that underlie the disparate impact of neutral measures on protected groups. The assumption that EU law requires individual formal equality only, has become largely theoretical when a whole suite of protected characteristics force everyone and anyone to internalize, avoid and address risks of theoretical adverse impact across many societally disadvantaged groups.

4 Substantive Differential Treatment As we have seen, formal equality under EU law requires both equal treatment and differential treatment, depending on whether the protected characteristic is considered to make a person comparable or incomparable vis-à-vis another. In most cases formal equality provisions consider people as being equal in regard to the protected characteristic, resulting in a requirement of formal neutrality. However, when a formal equality obligation considers people as being unequal because of a protected characteristic, it results in compulsory differential treatment. Formal equality then becomes barely distinguishable from substantive equality: it requires substantive differential treatment and it does so because of an underlying assumption that equal treatment would undermine a desirable substantive fairness goal. What still sets formal EU equality apart from substantive equality is that the former relies on explicit provisions to prescribe positive differential treatment whereas the latter holds these to be implicit in the very concept of equality itself. By prescribing positive differential treatment, EU law effectively codifies the reach of substantive duties under an overarching formal equality concept. Hence, in the case of disability, EU non-discrimination law prescribes both the traditional equal treatment and a specific obligation of differential treatment as follows:

27

Tobler (2009). Case C-157/15, Samira Achbita and Centrum voor gelijkheid van kansen en voor racismebestrijding v G4S Secure Solutions NV, (ECJ 14 March 2017), para. 43. 28

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In order to guarantee compliance with the principle of equal treatment in relation to persons with disabilities, reasonable accommodation shall be provided. This means that employers shall take appropriate measures, where needed in a particular case, to enable a person with a disability to have access to, participate in, or advance in employment, or to provide training for such a person, unless such measures would impose a disproportionate burden on the employer. When this burden is, to a sufficient extent, remedied by existing measures as an element of disability policy in the Member State, it should not be considered disproportionate.29

The duty of ‘reasonable accommodation’, a staple of disability human rights internationally, is imposed as part of an equal treatment concept, making the denial of reasonable accommodation a form of discrimination.30 There can be little doubt that accommodation duties serve a substantive policy aim. For the CJEU, they ‘must be understood as referring to the elimination of the various barriers that hinder the full and effective participation of persons with disabilities in professional life on an equal basis with other workers’.31 Seeking alignment with the United Nations Convention on the Rights of Persons with Disabilities, which the EU itself has ratified, the Court thus adopts a substantive approach that allows EU non-discrimination law to be interpreted towards full practical effect, notwithstanding its formal roots. In the case of gender, EU law has always endorsed specific rights related to pregnancy, maternity and parenthood, now rooted in the Pregnant Workers Directive and the Parental Leave Directive.32 On the surface, these substantive harmonisation rights serve health and safety, and the reconciliation of work with family life. In the words of the CJEU, they serve to protect a woman’s biological condition during and after pregnancy and the special relationship between a woman and her child after childbirth.33 But their coexistence with non-discrimination has also brought the CJEU to construct them as expressions of substantive equality. For the Court, pregnancy and maternity rights, while seeking to protect vulnerable women, also implement the principle of equal treatment regarding access to employment. Equality is then pursued by substantive rights while leaving formal

29

Art. 5 General Framework Directive. Ferri and Lawson (2016). 31 Case C-335/11 and Case C-337/11 (joined), HK Danmark, on behalf of Jette Ring v Dansk almennyttigt Boligselskab v HK Danmark, on behalf of Lone Skouboe Werge v Dansk Arbejdsgiverforening, on behalf of Pro Display A/S, (ECJ 11 April 2013), para. 54. 32 Council Directive 92/85/EEC 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 OJ L 348/1–7 (1992); Council Directive 2010/18/EU implementing the revised Framework Agreement on parental leave concluded by BUSINESSEUROPE, UEAPME, CEEP and ETUC, OJ L 68/13–20 (2010). 33 Case 184/83, Ulrich Hofmann v Barmer Ersatzkasse, (ECJ 12 July 1984), para. 25; Case C-32/93, Carole Louise Webb v EMO Air Cargo (UK) Ltd, (ECJ 14 July 1994), para. 20; Case C-394/96, Mary Brown v Rentokil Ltd, (ECJ 13 June 1998), para. 17; Case C-203/03, Commission of the European Communities v Republic of Austria, (ECJ 1 February 2005), para. 43. 30

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equality principles intact.34 As the Court states in Hill, substantive protection of women within family life and in the course of their professional activities is, in the same way as for men, a natural corollary of the formal equality between men and women.35 Because the Court sees pregnancy and maternity rights as fostering substantive equality, it rejects as discriminatory any unfavourable consequences that would result from them for the female worker. If a worker suffers in promotion and salary opportunities because she is or has been on maternity leave, she is the victim of direct sex discrimination.36 The foundational EU directive on gender equality in employment has always stressed that formal equality does not prejudice ‘provisions concerning the protection of women, particularly as regards pregnancy and maternity’.37 Once more, formal equal treatment and substantive differential treatment are treated as two sides of the same coin, both serving the overarching purpose of formal non-discrimination. This conceptual symbiosis notwithstanding, there is a thin line between protective measures to maintain employment opportunities in the face of pregnancy or maternity, and similarly ‘paternalistic’ measures that effectively reduce employment opportunities. The CJEU takes pains to distinguish the two. While accepting night work restrictions for women for biological concerns related to pregnancy or maternity, it rejects them when the risks to which women are exposed at night are not inherently different from those to which men are exposed.38 While acknowledging the legitimacy of provisions to protect pregnant women, it rejects provisions that result in unfavourable treatment in access to employment or effectively serve the employer’s interest.39 While supporting leave entitlements that protect the biological condition of women following pregnancy, it rejects similar provisions that are detached from breastfeeding and instead perpetuate a traditional distribution of the roles of men and women as regards parental duties.40 This case-law reveals an implicit tension between differential treatment and equal treatment that both serve equal opportunity.

34

Case C-136/95, Caisse nationale d’assurance vieillesse des travailleurs salariés v Thibault, (ECJ 30 April 1998), para. 26; Case C-207/98, Mahlburg v Land Mecklenburg-Vorpommern, (ECJ 3 February 2000), para. 26. 35 Case C-243/95, Kathleen Hill and Ann Stapleton v the Revenue Commission and the Department of Finance, (ECJ 17 June 1998), para. 42. 36 Case C-284/02, Land Brandenburg v Ursula Sass, (ECJ 8 November 2004), paras. 34–37. 37 Art. 2(3) 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, OJ L 39/40–42 (1976), now art. 28 Council Directive 2006/54/EC on the implementation of the principle of equal opportunities and equal treatment of men and women in matters of employment and occupation, OJ L 204/23–36 (2006). 38 Case C-345/89, Criminal proceedings against Alfred Stoeckel, (ECJ 25 July 1991). 39 Case C-66/96, Høj Pedersen and others, (ECJ 19 November 1998); Case C-207/98, Mahlburg v Land Mecklenburg-Vorpommern, (ECJ 3 February 2000). 40 Case C-104/09, Pedro Manuel Roca Álvarez v Sesa Start España ETT SA, (ECJ 30 September 2010).

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That tension becomes explicit whenever EU-law construes differential treatment as an exception to, rather than an element of, formal equality. To this we now turn.

5 Substantive Positive Discrimination as an Exception to Formal Equality From its very origin in gender equality, prohibitions of discrimination under EU law have coexisted with authorisations of measures that address underlying causes of inequality for the protected group. In the uniform lingo of today’s equal treatment provisions: With a view to ensuring full equality in practice, the principle of equal treatment shall not prevent any Member State from maintaining or adopting specific measures to prevent or compensate for disadvantages linked to (. . .) (the protected characteristic).41

Labelled ‘positive action’, these provisions offer a stark reminder that formal equality under EU law in no way seeks to block the myriad initiatives that can promote substantive equality outcomes. EU equality law indeed supports a whole spectrum of diversity policies that are unabashedly substantive in purpose, such as mainstreaming, focus measures, outreach, and accommodation. Diversity and positive action are eminently compatible with formal equality because they do not result in any formal discrimination and serve the substantive effectiveness of formal equality overall. The contentious issue is to what extent positive action can be tolerated when it operates through positive discrimination that runs afoul of formal equality. Are the recurring positive action clauses substantive outcome principles that balance the principle of formal equality, or instead merely limited exceptions that may or may not tolerate positive discrimination under certain circumstances? As has been documented extensively elsewhere, the CJEU in the field of gender has opted for the second interpretation, reinforcing a formal approach to equality and non-discrimination. For the Court, positive action provisions are ‘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 society’. With some twists and turns, this position can be summarized as follows.42

41 See the directives mentioned in footnote 2. In the case of gender, positive action is defined with explicit reference to ‘specific advantages in order to make it easier for the underrepresented sex to pursue a vocational activity or to prevent or compensate for disadvantages in professional careers’ (art. 157 TFEU juncto art. 3 Recast Equal Treatment Directive). 42 See De Vos (2007) and the references there.

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The CJEU sees positive sex discrimination as an exception to be narrowly tailored to its justification.43 Justification operates through a proportionality test that glosses over minor evolutions in the wording of the positive action clauses.44 The concept of ‘proportionality’ traditionally entails three separate tests: legitimacy, effectiveness, and proportionality or necessity. The existing case-law is centred on legitimacy while stating but only scratching the surface of the other two criteria. Legitimacy is accepted where measures resulting in individual positive discrimination are aimed at remedying a proven imbalance between the gender groups. The CJEU seems not particularly concerned with the origin of the imbalance, loosely admitting positive discrimination in response to the ‘prejudicial effects in employment which arise from social attitudes, behaviour and structures’.45 Positive discrimination therefore should not necessarily seek to compensate for past discrimination as such. The required imbalance should not necessarily have adversely affected the beneficiary of the positive measures. What level of imbalance is required for positive discrimination to be legitimate has yet to be decided. The CJEU has dealt with a variety of imbalances without having to judge their merits. However, it is clear that positive sex discrimination should aim to eliminate and correct the causes of reduced opportunities of access to employment and careers for women and to improve their ability to compete on the labour market and pursue a career on an equal footing.46 Moreover, such positive discrimination should objectively serve the stated aim and rely on objective and transparent criteria.47 From that perspective, merely seeking to redress imbalances for the sake of more diversity cannot pass. Furthermore, any positive discrimination should, in accordance with the principle of proportionality, remain within the limits of what is appropriate and necessary in order to achieve the aim in view, reconciling the principle of equal treatment as far as

43

Commission v. France; Case C-407/98, Abrahamson and Anderson, (ECJ 6 July 2000); Case C-319/03, Serge Briheche v Ministre de l’Intérieur, Ministre de l’Éducation nationale and Ministre de la Justice. (ECJ 30 September 2004). 44 Case C-407/98, Abrahamson and Anderson, (ECJ 6 July 2000); Case C-476/99, H. Lommers v Minister van Landbouw, Natuurbeheer en Visserij, (ECJ 19 March 2002); Case C-319/03, Serge Briheche v Ministre de l’Intérieur, Ministre de l’Éducation nationale and Ministre de la Justice. (ECJ 30 September 2004). 45 Case C-450/93, Eckhard Kalanke v Freie Hansestadt Bremen, (ECJ 17 October 1995); Case C-152/84, M. H. Marshall v Southampton and South-West Hampshire Area Health Authority (Teaching), (ECJ 26 February 1986). 46 Commission v France; Case C-366/99, 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, (ECJ 29 November 2001); Case C-476/99, H. Lommers v Minister van Landbouw, Natuurbeheer en Visserij, (ECJ 19 March 2002); Case C-104/09, Pedro Manuel Roca Álvarez gegen Sesa Start España ETT SA, (ECJ 30. September 2010). 47 Commission v. France, Case C-407/98, Abrahamson and Anderson, (ECJ 6 July 2000); Case C-366/99, 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, (ECJ 29 November 2001).

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possible with the requirements of the aim thus pursued.48 The proportionality test can generate crucial substantive discussions about the effectiveness of positive discrimination, its cost/benefit analysis, its necessity, its reach and extent, and the availability of alternative measures that are not or less discriminatory. The proof of the pudding is in the eating and the relative dearth of positive discrimination cases has not produced much eating. How positive discrimination could actually be marshalled to further substantive equality remains essentially a mystery. The CJEU has rejected measures that, while ostensibly benefiting women, are in fact liable to perpetuate a traditional distribution of the roles of men and women in the exercise of parental duties.49 It has also rejected preferential treatment that is automatic and unconditional and does not include an objective assessment of all personal circumstances, allowing neutrality to prevail if the circumstances so demand.50 Hard quotas are therefore in principle suspect and the CJEU has so far only conditionally admitted soft quotas in a tie-break situation. In essence, the CJEU consistently treats substantive positive discrimination as an exceptional derogation from the principle of formal non-discrimination. This requires, as the Court has now reiterated in a case of religious discrimination, ‘that derogations remain within the limits of what is appropriate and necessary in order to achieve the aim in view and that the principle of equal treatment be reconciled as far as possible with the requirements of the aim thus pursued’.51 Conceptually, the CJEU has created a straightjacket for policy makers, companies or organisations wanting to consider positive discrimination in the European Union. It is perhaps not surprising that the Court’s case-law on positive discrimination has been frozen in time for well over a decade. At the same time, a movement towards explicit gender quotas in company boards has gained traction in many European countries without notable litigation or pushback, notwithstanding its potential conflict with the Court’s doctrine.52 The European Commission has even proposed an EU directive in favour of compulsory board gender balance.53 Although 48

Case C-407/98, Abrahamson and Anderson, (ECJ 6 July 2000); Case C-476/99, H. Lommers v Minister van Landbouw, Natuurbeheer en Visserij, (ECJ 19 March 2002); Case C-319/03, Serge Briheche v Ministre de l’Intérieur, Ministre de l’Éducation nationale and Ministre de la Justice. (ECJ 30 September 2004). 49 Case C-104/09, Pedro Manuel Roca Álvarez gegen Sesa Start España ETT SA, (ECJ 30. September 2010). 50 Case C-450/93, Eckhard Kalanke v Freie Hansestadt Bremen, (ECJ 17 October 1995); Case 152/84, M. H. Marshall v Southampton and South-West Hampshire Area Health Authority (Teaching), (ECJ 26 February 1986); Case C-157/97, Georg Badeck and Others, interveners: Hessische Ministerpräsident and Landesanwalt beim Staatsgerichtshof des Landes Hessen, (ECJ 28 March 2000); Case C-319/03, Serge Briheche v Ministre de l’Intérieur, Ministre de l’Éducation nationale and Ministre de la Justice, (ECJ 30 September 2004). 51 Case C-193/17, Cresco Investigation GmbH v Markus Achatzi, (ECJ 22 January 2019), para. 65. 52 See De Vos and Culliford (2014). 53 Proposal for a Directive on improving the gender balance among non-executive directors of companies listed on stock exchanges and related measures, COM/2012/0614 final - 2012/0299 (COD) of 14 November 2012.

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this initiative has become politically stuck, the willingness of the Commission as the guardian of EU law to embrace quotas is remarkable. In the meantime, EU non-discrimination law has extended to a plethora of protected traits. Turning away from gender provides indications of a more flexible approach to positive discrimination.

6 Substantive Positive Discrimination as a Limitation of Formal Equality Under formal equality, not all prohibitions of discrimination are created equal. As EU equality law has soared above its origins in nationality and gender, it has introduced protections against discrimination that internalize substantive equality aims as potential limitations of formal neutrality. Age discrimination is the case in point. The General Framework Directive not only prohibits age discrimination in employment, it also enumerates what it calls ‘justification of differences of treatment on grounds of age’, including the following: Member States may provide that differences of treatment on grounds of age shall not constitute discrimination, if, within the context of national law, they are objectively and reasonably justified by a legitimate aim, including legitimate employment policy, labour market and vocational training objectives, and if the means of achieving that aim are appropriate and necessary (art. 6).

The evolution of the European case-law on this provision illustrates the growing pains of a Court of Justice that has been wedded to a formal equality doctrine for decades. In the seminal case of Mangold, the CJEU faced a German legislation that the allowed the use of fixed-term employment contracts without restrictions for workers as of the age of 52. Could this straightforward age discrimination qualify as legitimate in view of the quoted limitation of the prohibition of age discrimination? The law’s admitted purpose was to promote the vocational integration of unemployed older workers in the German labour market. The Court recognized the legitimacy of such a public interest objective and considered the contested age criterion ‘objective and reasonable’ as a matter of course. However, it was much less forgiving in assessing its proportionality, stating: In so far as such legislation takes the age of the worker concerned as the only criterion for the application of a fixed-term contract of employment, when it has not been shown that fixing an age threshold, as such, regardless of any other consideration linked to the structure of the labour market in question or the personal situation of the person concerned, is objectively necessary to the attainment of the objective which is the vocational integration of unemployed older workers, it must be considered to go beyond what is appropriate and necessary in order to attain the objective pursued. Observance of the principle of proportionality requires every derogation from an individual right to reconcile, so far as is possible, the requirements of the principle of equal treatment with those of the aim pursued (. . .).54

54

Case C-144/04, Werner Mangold v Rüdiger Helm, (ECJ 22 November 2005), para. 65, my italics.

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Explicitly referring to its ruling in Lommers, the italicized sentence shows the CJEU applying the standard it has consistently applied in the aforementioned cases of positive sex discrimination. Formal neutrality is the rule. Positive discrimination for the sake of labour market inclusion is the derogation to be narrowly construed. The General Framework Directive’s justifications of differential treatment on grounds of age are applied as exceptional positive discrimination under a general rule of formal non-discrimination. Under Mangold, employment policy can use age thresholds only if the chosen age is a perfect proxy for its policy aim. When the age limit is overbroad and adversely affects people whose employment situation differs from that of the target group notwithstanding their identical age, the age discrimination cannot stand. This is quite a challenge. Labour market policy for age groups, by its very nature, targets groups over individuals. If its age criteria have to withstand the specifics of individual situations they are no longer generic policy tools. The essence of employment policy is to generalize groups. When group criteria have to be perfect proxies they can no longer serve as group criteria and group policy has to be abandoned for case-by-case assessment. The Court’s emphasis on formal equality effectively rendered the possibility of age driven employment policy moot. Mangold applied strict proportionality while emphasizing broad discretion for Member States in their choice of the measures capable of attaining objectives of social and employment policy.55 This internal inconsistency did not last long. In a string of subsequent cases, the Court has allowed as proportionate measures that impose a compulsory retirement age if, in what has now become the standard test for age driven employment policy: (. . .) it does not appear unreasonable for the authorities of a Member State to take the view that a measure such as the authorisation of clauses on automatic termination of employment contracts on the ground that an employee has reached the age at which he is eligible for a retirement pension, (. . .) may be appropriate and necessary in order to achieve legitimate aims in the context of national employment policy.56

What started as strict scrutiny in Mangold has ended in casual leniency. Proportionality no longer requires that age discrimination be narrowly tailored to its aim. If ‘it does not appear unreasonable’ and ‘may be appropriate and necessary’ it will stand. In the process, the CJEU admits a variety of domestic policy aims consistently as legitimate at face value, respects national traditions in assessing proportionality,

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Id., para. 63. Case C-45/09, Gisela Rosenbladt v Oellerking Gebäudereinigungsges, (ECJ 12 October 2010), para. 51; Case C-411/05, Félix Palacios de la Villa v Cortefiel Servicios SA, (ECJ 16 October 2007), para. 72. See, in the same vein, Case C-88/08, David Hütter v Technische Universität Graz, (ECJ 18 June 2009); Case C-341/08, Domnica Petersen v Berufungsausschuss für Zahnärzte für den Bezirk Westfalen-Lippe, (ECJ 12 January 2010); Case C-159/10, Case C-160/10 (joined cases) Gerhard Fuchs and Peter Köhler v Land Hessen, (ECJ 21 July 2011); Case C-297/10, Case C298/10, (joined cases) Sabine Hennigs v Eisenbahn-Bundesamt and Land Berlin v Alexander Mai, (ECJ 8 September 2011); Case C-141/11, Torsten Hörnfeldt v Posten Meddelande AB, (ECJ 5 July 2012); Case C-286/12, European Commission v Hungary, (ECJ 6 November 2012). 56

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balances non-discrimination with political, economic, social, demographic and/or budgetary considerations, gives collective bargaining outcomes a presumption of legitimacy, and assumes the labour market effectiveness of age discrimination without verifying its actual impact. Ageism, the infamous ‘lump of labour fallacy’, and age stereotyping, now largely remain unassailable in Luxembourg.57 Irrespective of the intrinsic merits of the Court’s case-law, its approach highlights a remarkable shift from the formal to the substantive in EU age discrimination law. The CJEU does not treat the authorisation of age driven employment policy as a derogation from formal neutrality but as a broad avenue balancing formal non-discrimination with legitimate age policy aims. Positive age discrimination is not a limited exception to the rule of formal neutrality, but a countervailing limitation of formal neutrality. The resulting combination is a much more substantive approach to age and discrimination, a prime example of how contemporary EU non-discrimination law has evolved to combine formal neutrality with substantive inclusion goals. In religious discrimination EU law has had to go one step further still. Here, the formal prohibition of religious discrimination coexists with the recognition of freedom of religion as a fundamental human right.58 As is well known, freedom of religion extends beyond mere belief itself ( forum internum) to include religious behaviour and expressions ( forum externum). Tied to the equally fundamental and substantive right of freedom of association, there is thus an inherent tension between formal religious neutrality and substantive religious freedom. This tension is recognized by the General Framework Directive. While prohibiting direct and indirect discrimination ‘on the grounds of religion or belief’, it allows: on the hand, religion to be used as an occupational requirement ‘(. . .) in the case of occupational activities within churches and other public or private organisations the ethos of which is based on religion or belief, (. . .) where, by reason of the nature of these activities or of the context in which they are carried out, a person’s religion or belief constitute a genuine, legitimate and justified occupational requirement, having regard to the organisation’s ethos. (. . .)’, and on the other hand, ‘churches and other public or private organisations, the ethos of which is based on religion or belief, acting in conformity with national constitutions and laws, to require individuals working for them to act in good faith and with loyalty to the organisation’s ethos’ (art. 4.2).

In Egenberger, the CJEU stressed that the quoted Directive strikes a ‘balance between the right of autonomy of churches and other organisations whose ethos is based on religion or belief, on the one hand, and, on the other hand, the right of workers (. . .) not to be discriminated against on grounds of religion or belief, in situations where those rights may clash’. Consequently, the Court ruled that EU

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See and comp. Dewhurst (2013), Doron et al. (2018) and Schiek (2011). Art. 6 TEU juncto art. 21 Charter of Fundamental Rights of the European Union of 7 December 2000 and art. 9 European Convention for the Protection of Human Rights and Fundamental Freedoms. 58

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non-discrimination law must, except in very exceptional cases, refrain from assessing whether the actual ethos of the church or organisation concerned is legitimate.59 The coexistence of religious freedom with religious non-discrimination forces the latter towards its most generous standard of justification where religious differentiation becomes the default and religious neutrality the exception. To be sure, the CJEU does not favour religious differentiation over formal neutrality. In the contentious case of Achbita, it conditionally upheld a company rule prohibiting the visible wearing of any political, philosophical or religious sign in the workplace. The Court recognized that its impact may constitute indirect religious discrimination and explicitly recognized the expression of religious beliefs as a fundamental right. However, it shied away from formulating an adjusted standard of justification that would deliberately balance formal religious neutrality with substantive religious freedom. For the Court, the pursuance of neutrality is a legitimate aim as a matter of principle, an expression of the freedom to conduct a business as recognized by the EU Charter of Fundamental Rights. Whether a particular policy of neutrality can be justified as indirect religious discrimination, depends on it being appropriate for its purpose and genuinely pursued in a consistent and systematic manner without direct religious differentiation.60 The protection of religion as a fundamental right does not make neutrality illegitimate, nor does justification depend on anything but traditional proportionality. Achbita shows the CJEU’s penchant towards formal neutrality in the absence of a specific provision that enables religious differentiation. Nonetheless, the ruling does contain seeds of a substantive religious accommodation. The Court emphasizes that a neutrality policy adversely affecting religious expression must be limited ‘to what is strictly necessary’, in this case to workers who interact with customers. By stressing ‘strict necessity’ the Court stretches standard proportionality to the highest level of scrutiny. Moreover, the Court goes beyond the realm of formal equality by suggesting, without any support in the General Framework Directive, additional workplace accommodation for a Muslim woman affected by a justifiable workplace headscarf ban.61 Clearly, the existence of a fundamental right does exert a substantive gravitational pull on what remains an otherwise formal approach to non-discrimination.

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Case C-414/16, Vera Egenberger v Evangelisches Werk für Diakonie und Entwicklung eV, (ECJ 17 April 2018), paras. 51 and 61. 60 Case C-157/15, Samira Achbita and Centrum voor gelijkheid van kansen en voor racismebestrijding v G4S Secure Solutions NV, (ECJ 14 March 2017), paras. 37 ff. 61 Id., paras. 42–43.

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7 Conclusion: Pragmatism and Discretion Labelling EU non-discrimination law as formal will never be a misnomer until the CJEU and the respective EU Directives change their bedrock definition of what constitutes discrimination. However, upon a bedrock of formality EU-law has built many a substantive layer indeed. In its approach to direct discrimination, in its invention and development of indirect discrimination, in its embrace of differential treatment in favour of substantive equality: over time and in many cases, both the EU legislator and the CJEU have introduced, recognized or amplified substantial substantive equality dimensions. As long as the default proposition of non-discrimination remains formal neutrality, the CJEU can hardly be expected to become the natural champion of substantive positive discrimination. Nonetheless, it has clearly shown a willingness to exploit substantive positive discrimination whenever the EU legislator requires or permits it. The recent case-law on age and religion may well spill over into a more generous attitude towards positive discrimination overall, if and when the Court gets the opportunity to revisit its longstanding reluctance vis-à-vis positive sex discrimination. Stalwarts of substantive equality should rejoice when surveying the landscape of case-law driven substantive equality law under the aegis of formal equality principles. It is no exaggeration to state that the Court of Justice has retooled formal EU equality law towards substantive equality aims, redefining piecemeal the overarching purpose of EU equality law in the process. Its practical effects in real life may well frustrate the engaged observer, but non-discrimination law can never shape the course of society on its own. What should be acknowledged from a legal perspective, however, is that the pragmatic flexibility of the CJEU in furthering substantive equality goes hand in hand with judicial discretion. At its heart, substantive equality stands for outcomes. When desired outcomes are not prescribed by law but instead enabled by a flexible Court of Justice, the substance of substantive equality essentially becomes judge-made. The substantive reach of direct discrimination depends upon the CJEU’s willingness to identify the comparator and tie treatment to a protected characteristic. For instance, whether intersexuality is direct sex discrimination or whether religious practices are equated with religion itself—to name two contested areas—is essentially the Court’s choice. Beyond direct discrimination, the scope of indirect discrimination and its substantive outcome entirely depend on the willingness of the Court to detect or reject disparate impact and to accept or refuse its justification. And as soon as the binary world of direct and indirect discrimination is complemented with exceptions and limitations, as with pregnancy, maternity, disability, age and religion, it is again the Court that sets the limits of substantive differential treatment. It is of course always the purview of the courts to interpret the law. But the lack of a clear conceptual and statutory framework for EU discrimination law are the Court’s creation. The substantive meanderings of EU discrimination law exist because of the CJEU. Their application at Member State level, especially through impact and

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proportionality tests, also leaves ample space for judicial choice and interpretation. As EU discrimination law embraces protected characteristics without clear-cut definitions, such as disability, race, ethnicity, religion and belief, its vagueness and organic nature become problematic. As EU discrimination law incorporates substantive policy aims without articulating them, the CJEU becomes a policy maker and potentially an engine of social engineering. When non-discrimination develops beyond formal equality to substantive goals, its legitimacy depends on a legitimate democratic process to define desired goals. The CJEU gas been creative and pragmatic in its gradual development of substantive equality. In the absence of a supporting political process, however, this progress comes at the expense of legitimacy.

References Barnard, Catherine. 2014. EU Employment Law and the European Social Model: The Past, the Present and the Future. Current Legal Problems 67: 199–237. Bell, Mark. 2002. Anti-Discrimination Law and the EU. New York: Oxford University Press. ———. 2012. Gender Identity and Sexual Orientation: Alternative Pathways in EU Equality Law. The American Journal of Comparative Law 60: 127–146. De Vos, Marc. 2007. Beyond Formal Equality. Positive Action Under Directives 2000/43/EC AND 2000/78/EC, European Commission, DG Employment, Social Affairs and Equal Opportunities, 81. De Vos, Marc, and Philippe Culliford. 2014. Gender Quotas for Company Boards. Antwerp: Intersentia. Dewhurst, Elaine. 2013. Intergenerational Balance, Mandatory Retirement and Age Discrimination in Europe: How Can the ECJ Better Support National Courts in Finding a Balance Between the Generations?’. Common Market Law Review 50: 1333–1362. Doron, Israel, Ann Numhauser-Henning, Benny Spanier, Nena Georgantzi, and Eugenio Mantovani. 2018. Ageism and Anti-Ageism in the Legal System: A Review of Key Themes. In Contemporary Perspectives on Ageism, ed. Liat Ayalon and Clemens Tesch-Römer. Heidelberg: Springer. Ferri, Delia, and Anna Lawson. 2016. Reasonable Accommodation for Disabled People in Employment - A Legal Analysis of the Situation in EU Member States, Iceland, Liechtenstein and Norway. Available at: . https://doi.org/10.2838/53553. Fredman, Sarah. 2016. Substantive equality revisited. International Journal of Constitutional Law 14(3): 712–738. Haverkort, Sarah. 2012. European Non-Discrimination Law, 378 p. Antwerp: Intersentia. McCrudden, Christopher. 2003. The New Concept of Equality. ERA 4: 9–29. Roemer, John. 1998. Equality of Opportunity. Cambridge: Harvard University Press. Schiek, Dagmar. 2011. Age Discrimination Before the ECJ – Conceptual and Theoretical Issues. Common Market Law Review 48: 777–799.

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Tobler, Christa. 2005. Indirect Discrimination: A Case Study into the Development of the Legal Concept of Indirect Discrimination Under EC law. Antwerp: Intersentia. ———. 2009. Limits and Potential of the Concept of Indirect Discrimination. Available at: . https://doi.org/10.2767/56607. ———. 2014. Equality and Non-Discrimination Under the ECHR and EU Law. ZaöRV 74: 521–561. Wentholt, Klaartje. 1999. Formal and Substantive Equal Treatment: The Limitations and the Potential of the Legal Concept of Equality. In Non-Discrimination Law: Comparative Perspectives, ed. Titia Loenen and Peter Rodrigues, 53–64. The Hague: Kluwer.

A Quite Peculiar Example of Positive Action: The New Directive on Work-Life Balance Álvaro Oliveira

Contents 1 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 Positive Action: Recalling the Basics . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 The New Work Life Balance Directive . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 The New Directive as an Example of Positive Action . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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Abstract This chapter argues that the new Work Life Balance Directive can be considered one example of positive action. First, it recalls some fundamental facts about positive action in EU law: the restrictive case law of the EU Court of Justice and the wide variety of positive action measures that exist at national level, often in favour of women and persons with disabilities. Secondly, it describes the historical origins of the new Work Life Balance Directive, as well as its content, including both measures in favour of men only, like the new paternity leave, and measures in favour of both men and women. On this basis, the third section explains in detail why it can be argued that the new Directive is an example of positive action—albeit a peculiar one. It is neither a form of hard, nor of soft positive action. Nevertheless, its purpose and likely effect is to increase equality of women in the labour market.

The author is currently working for the European Commission, but the content of this article does not reflect the official opinion of the European Union. Responsibility for the information and views expressed therein lies entirely with the author. I would like to thank Professors Marc de Vos, Miguel De La Corte-Rodríguez and Thomas Giegerich for interesting discussions and helpful suggestions. Á. Oliveira (*) European Commission, Brussels, Belgium © Springer Nature Switzerland AG 2020 T. Giegerich (ed.), The European Union as Protector and Promoter of Equality, European Union and its Neighbours in a Globalized World 1, https://doi.org/10.1007/978-3-030-43764-0_14

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1 Introduction Positive Action has a public relations problem: it is often confused with quotas. Therefore, it is prone to attract controversy, notably in cases where the general public has a lack of awareness and understanding of the discrimination suffered by the concerned group. However, we can see positive action as something that goes beyond quotas. That is why, as a respondent to his presentation, I feel sympathetic towards the approach of Professor Marc de Vos of considering as examples of positive action several judgments of the EU Court of Justice, where the Court tries to go beyond formal equality and shows a concern about ensuring equality in practice. In a way, this concern of the Court is perfectly understandable. It is common knowledge that more than 60 years after the principle of equal pay for equal work between men and women was inscribed in the Treaty of Rome in 1957 and almost 20 years after the two anti-discrimination directives1 were adopted in 2000, we still have a long path to go to achieve equality. This small chapter aims at making a modest contribution to this discussion. In essence, it will argue that the new Work Life Balance Directive2 adopted in June 2019 can be considered one example of positive action—albeit a peculiar one. This article consists of three sections. The first will recall some fundamental facts about positive action in EU law, concerning both the well-known case law of the EU Court of Justice and how positive action is used at national level. The second will describe what the new Work Life Balance Directive is: what were its origins and what does it provide for. Finally, the third section will explain why we it can be argued that the new Directive is an example of positive action.

2 Positive Action: Recalling the Basics As David Oppenheimer explains in his seminal articles3 on “affirmative action” in the USA, there are several ways in which we can understand the term “positive action”. In summary, it can include the following: – quotas using absolute floors or ceilings for the selection of women or minorities (for access to employment or education, for example),

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Council Directive 2000/43/EC on equality based on racial or ethnic origin, OJ L 180/22 (2000) and Council Directive 2000/78/EC establishing a general framework for equal treatment in employment and occupation, OJ L 303/16 (2000). 2 Council Directive (EU) 2019/1158 of the European Parliament and the Council of 20 June 2019 on work-life balance for parents and carers and repealing Council Directive 2010/18/EU, OJ L 188/79, (2019). 3 Oppenheimer (1996), p. 923 and 926–933. See also Oppenheimer (1988), pp. 43–46.

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– preferences which allows for the consideration of characteristics such as the sex, disability or ethnical origin in making selections, – self-studies examining how selection procedures are made, in order to avoid discrimination, – outreach and counselling programmes, to diversify the pool of people from which selections are made, in order to reach minorities or the under-represented group, – active non-discrimination policies like diversity or anti-harassment training. The first two conceptions of positive action (quotas and preferences) have been somehow dealt with by the EU legislation and the case law of the EU Court of Justice.4 Directive 76/207/EEC on sex equality in employment,5 which prohibited discrimination based on sex, included also a positive action clause. Its Article 2 (4) provided that: This 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 in [employment].

In 1995, in the Kalanke case,6 the Court considered that this provision had been violated by a scheme of the German Land of Bremen that gave preference to women in the recruitment and promotion within the civil service. This preference applied when women and men were equally qualified and when women were underrepresented in the relevant sectors or pay brackets. The Court considered that, since the positive action clause of the Directive was a derogation from the “individual right” to equal treatment, that clause must be interpreted strictly. It explained that the positive action clause allowed for measures to promote “equal opportunities”, but the German rules guaranteed women “absolute and unconditional priority”.7 As a consequence it ruled down the priority scheme at stake. The reaction to this judgment was impressive. It was heavily criticised by scholars and civil society organisations. The judgment constituted a notable exception to the virtuous dynamic in EU equality law. In the European Union, usually there is a virtuous dynamic that develops the protection against discrimination stepby-step. The legal protection is not only progressively reinforced in time, it is also extended from one area of social life to another and from one ground of

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For a longer description and analysis see Oliveira and Gondek (2014), pp. 7–14. Council Directive 76/207/EEC 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, OJ L 39/40 (1976). In 2006, this Directive was replaced by Council Directive 2006/54/EC on equal treatment of men and women in matters of employment and occupation (recast), OJ L 204/23 (2006). It includes a positive action clause in its article 3: “Member States may maintain or adopt measures within the meaning of Article 141(4) of the Treaty with a view of ensuring full equality in practice between men and women in working life.” 6 Case C-450/93, Kalanke/Freie Hansestadt Bremen (ECJ 17 October 1995), ECR I-3051. 7 Idem, paragraphs 21 to 23. 5

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discrimination to others. The script usually goes like this. The legislator adopts general rules prohibiting discrimination, either in the Treaties or in directives. The EU Court of Justice is then obliged to interpret their precise meaning and effect. To respect the intention of the legislator and to make such rules meaningful, the Court usually strengthens their effect and adopts a broad interpretation. Later the legislator codifies the rules and principles developed by the Court in statutory law. Moreover, when some rules are adopted regarding one ground of discrimination, for example sex, it appears justified to apply them also to other grounds of discrimination, for example race, and eventually the legislator follows suit.8 However, in this case, the general trend of progressive development of the protection from discrimination and mutual reinforcement of the work of the EU legislator and court was not followed. In Kalanke, the Court adopted a restrictive interpretation of the directive. A few months after the judgment, as a clear reaction to it, all national governments agreed to include a new Treaty provision reinforcing the possibility to adopt positive action measures. The Amsterdam Treaty, signed on 2 October 1997, added the following provision: With a view to ensuring full equality in practice between men and women in working life, the principle of equal treatment shall not prevent any Member State from maintaining or adopting measures providing for specific advantages in order to make it easier for the underrepresented sex to pursue a vocational activity or to prevent or compensate for disadvantages in professional careers.9

In this new Treaty provision, the references to “full equality in practice”, “specific advantages” and “prevent or compensate for disadvantages” contrast with the simple reference to “equal opportunity” in the abovementioned positive action clause of Directive 76/207/EEC—which had been so much stressed by the Court in the Kalanke case.10 A month after the Amsterdam Treaty was signed, the Court started to refine and develop its case law on positive action. In the case Marschall11 the Court this time upheld another German Land scheme on the promotion of civil servants that gave preference to women. Here the priority to the promotion of women over men applied also where women had equal qualifications and were under-represented. However, contrary to the situation in Kalanke, in this case the scheme included a saving clause establishing that women would not have priority if “reasons specific to an individual [male] candidate tilt the balance in his favour”. This allowed the Court to make a distinction between the two cases. In this new case, there was no automatic

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Oliveira (2017). As I point out there, the dynamic is not always perfect and the existing law can certainly be improved, but the positive trend is quite clear. 9 Article 141 (4) of the Treaty establishing the European Community, renumbered, as from December 2009, Article 157 (4) of the renamed Treaty on the Functioning of the European Union. 10 Meanwhile, Declaration No 28 annexed to the Treaty of Amsterdam, stated that: “When adopting measures referred to in Article 141(4) of the Treaty establishing the European Community, Member States should, in the first instance, aim at improving the situation of women in working life.” 11 Case C-409/95, Marschall/Land Nordrhein-Westfalen (ECJ 11 November 1997), ECR I-6363.

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preference to women,12 therefore, the Court accepted the legality of the scheme, provided some conditions were respected.13 In subsequent cases, the Court confirmed this line, for example on opportunities for women for training and to access job interviews and on subsidized nursery places for women.14 This jurisprudence is still valid today. For example, in 2008, in Commission v Italy,15 the Court rejected the argument presented by the Italian government and based on above-mentioned Article 141(4) of the Treaty in order to sustain an early retirement age for women. The Court ruled that this Treaty provision covered measures that contribute to helping women pursuing their professional life on an equal footing with men. However, since the Italian rules in question set an early retirement age for women, the Court ruled that they could not help women in their professional lives and remedy the problems they may have during their professional career. Therefore, it quashed the Italian rules at stake. However, one may wonder: what happens in practice? Is the case law of the Court fully respected across the European Union? In reality, the situation seems to be a bit more complex than the simple reading of the case law of the Court would indicate. Overviews of national legislation and measures show repeatedly that there is a wide variety of forms of positive action being used across the European Union. Moreover, not all of them seem to respect the case law of the EU Court of Justice.16 To make a long story short: the most frequent forms of positive action concern women and people with disabilities.17 Clearly, these are also the two groups on which there is a wider social and political consensus on policies to protect them from discrimination.

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Idem, paragraphs 29 to 32. These were the conditions for a priority scheme for women to be accepted: (1) there are fewer women than men in the relevant post, (2) both female and male candidates are equally qualified in terms of their “suitability, competence and professional performance”, (3) the application of each male candidate is “the subject of an objective assessment which will take account of all criteria specific to the individual candidates”, but these criteria must not discriminate against the female candidates, and (4) the priority is not automatic and unconditional, since it will not apply “where one or more of those criteria tilts the balance in favour of the male candidate”. Ibidem, paragraph 35. 14 See Cases C-158/97, Badeck (ECJ 28 March 2000), ECR I-1875 and Case C-476/99, Lommers (ECJ 19 March 2002), ECR I-2891, respectively. 15 See more recently the Case C-46/07, Commission v Italy (ECJ 13 November 2008), ECLI:EU: C:2008:618, paras. 57 and 58. This basic line was confirmed in the judgment of the Court of 12 December 2019 in case C-450/18 WA v Instituto Nacional de la Seguridad Social, paragraphs 65 and 66 (regarding Directive 79/9 on sex equality in social security and a Spanish pension supplement only for women who had at least two biological or adopted children). 16 See Selane and Senden (2011), p. 32. For a more recent overview, with an excellent analysis of pending legal issues in EU law, see McCrudden (2019). 17 For other grounds of discrimination under Council Directives 2000/43/EC (race) and 2000/787EC (religion or belief, age, disability and sexual orientation) see Chopin et al. (2018), pp. 89–93, including a very useful table of national law at 92–93. 13

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3 The New Work Life Balance Directive The existing EU framework of family leaves18 can be summarised as follows: (1) the Maternity Leave Directive19 of 1992 provides for the right of working mothers to 14 weeks of maternity leave, allocated before or after the birth of the child, two of those 14 weeks being compulsory, paid at least at sick pay level.20 (2) the Parental Leave Directive of 2010,21 which replaced the previous directive of 1996,22 provides for a period of non-paid parental leave of four months for each working parent, in order to care for a biological or adopted child. One month cannot be transferred between the parents. (3) the Directive on self-employed persons23 of 2010 provides for the right of women who are self-employed persons, as well as female spouses and life partners of self-employed workers to “a sufficient maternity allowance enabling interruptions in their occupational activity owing to pregnancy or motherhood at least for 14 weeks”.24 In 2008, the Commission proposed to amend the Maternity Leave Directive25 in order to increase the period of maternity leave from 14 to 18 weeks, including a compulsory period of at least 6 weeks after childbirth, instead of 2 weeks as before. Moreover, the allowance received during the leave would in principle be equivalent to the last monthly salary or an average monthly salary, subject to a possible ceiling not lower than the sick pay level. However, the European Parliament asked for more: (a) 20 weeks of maternity leave with payment of 100% of the last monthly salary or the average monthly salary, 18 For an in-depth critical analysis of the EU framework of family leaves, see De la CorteRodríguez (2019). 19 Council Directive 92/85/EEC 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, OJ L 348/1 (1992). 20 Idem, articles 8 and 11 (2) and (3). 21 Council Directive 2010/18/EU of 8 March 2010 implementing the revised Framework Agreement on parental leave concluded by BUSINESSEUROPE, UEAPME, CEEP and ETUC and repealing Council Directive 96/34/EC, OJ L 68/13 (2010). 22 Council Directive 96/34/EC of 3 June 1996 on the framework agreement on parental leave concluded by UNICE, CEEP and the ETUC, OJ L 145/4 (1996). 23 Council Directive 2010/41/EU 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, OJ L 180/1 (2010). 24 Article 8 of the directive. It also provides that the allowance shall be equivalent either to sick pay leave, the average loss of income, or any other family related allowance. 25 Proposal for a Directive amending Council Directive 92/85/EEC 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, COM (2008) 637 final of 3 October 2008.

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but with no ceiling, and (b) a paternity leave of 2 weeks, paid and non-transferable, to workers whose life partner has recently given birth.26 This was too much for the Council, which considered unacceptable the Parliament requests.27 The Commission finished by withdrawing the proposal in 2015.28 It stated that, despite its efforts, it had been impossible to break the stalemate between the Council and the Parliament. Moreover, it announced that it would present a broader initiative which would take account of the developments in society over the past decade and would also examine a wider range of issues that face working parents and carers in their daily lives, “including various forms of maternity and parental leave, work/life balance and the role of carers”. This promise was fulfilled 2 years later, in April 2017, when the proposal for a new directive was presented. After 2 years of intensive negotiation, the Directive was finally adopted. The new “Work-Life Balance Directive” 2019/1158 (OJ L 188, 12.7.2019, p. 79), adopted in June 2019, provides for: – – – –

the right of fathers to a paid paternity leave of 10 working days; the right of each parent to reserved paid parental leave of 2 months, the right of carers to a leave of 5 working days, per year, per worker, and the right to flexible working arrangements for parents and carers.

The right to a paternity leave can be enjoyed by fathers or, if recognised by national law, to equivalent second parents, on the occasion of the birth of a child for the purposes of providing care. It must be paid at least at the level of sick pay.29 The new right to reserved and paid parental leave of 2 months (of the total period of 4 months of non-paid leave already provided before) is to be enjoyed by each parent. Its level of payment is not precisely defined, but it is provided that it must be adequate “to facilitate the take up of parental leave by both parents.” Additionally, the 2 months of paid parental leave cannot transferred between parents, in order to stimulate fathers to take it.30 The right of carers to a leave of 5 working days per year is for workers who provide personal care or support to a first-degree relative, or to a person living in the same household, and who is in need of significant care or support for a serious medical reason.31 Moreover, workers with children up to at least 8 years, and carers, will have the right to ask their employer for flexible working arrangements for caring purposes. These arrangements may include adjustment to their working patterns, including the use of remote work, flexible working schedules, or reduced working

26 Legislative resolution of 20 October 2010, doc. ref. P7_TA(2010)0373, with its detailed position on the draft proposal, doc. ref. P7_TC1-COD(2008)0193. 27 Note of the Italian Presidency of the Council of 24 November 2014, doc. ref. 15764/14, p. 1. 28 European Commission, Press Release IP/15/5287 of 1 July 2015. 29 Articles 4 and 8(2) of the new Directive, above quoted. 30 Article 5 and 8(3), idem. 31 Article 6, ibidem.

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hours. Employers must reply to the requests taking into account the needs of both the employer and the worker. In this regard, the new Directive basically develops and extends to carers rights that already existed for parents returning from parental leave, under the Parental Leave Directive.32

4 The New Directive as an Example of Positive Action It can be argued that the new Work Life Balance Directive is a form of positive action. Of course, it is not a form of positive action in the sense of the five methods defined by David Oppenheimer above: quotas, preferences, self-studies, outreach and counselling, or active non-discrimination policies. The Directive is neither an example of what I would call “indirect positive action”. I refer to measures which, although neutral in their face since equally available for everybody, actually end up having a proportional more favourable impact on certain groups, like women, some ethnic minorities, or people with disabilities—such as for example, measures on fighting poverty or ensuring a minimum income. The new Directive is different from that type of measures because, taken as a whole, if we consider the new paternity leave, the directive as such actually gives more rights to men than to women.33 However, the legal basis of the Directive is nevertheless the Treaty provision allowing the Union to act towards equality between men and women in the labour market.34 In substance, it can be argued that the new Directive is a form of positive action, since its purpose and likely effect is to increase equality of women in the labour market. The Directive is based on a reflection on how the existing family leaves function and how to overcome the current shortcomings, with the clear objective of improving the situation of women in employment.

32

Article 9 of the new Directive and Clause 6(1) of Directive 2010/18, above quoted. Of course, if we examine the European Union law in a wider perspective we cannot forget that under EU law directives women have already the right to 14 weeks of maternity leave, although one can discuss whether their situation as mothers giving birth is completely or partially comparable to that of fathers. For an analysis of this and other related issues, see De la Corte-Rodríguez, op.cit. above. 34 Article 153(1)(i) of the Treaty on the Functioning of the European Union (TFEU). 33

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The reality is that women are underrepresented in the labour market35 and, in average, they are paid less than men in salaries36 and pensions.37 One of the reasons for this is the fact that women take more child-related leave than men and, when both parents take it, women take it for a longer period.38 There are cultural reasons for this situation, as women are still often seen as the normal carer of children and also of older people in need of assistance. However, there are also concrete economic reasons. Since often the salary of men is higher than that of women and the leave benefits available do not cover the whole income, it makes economic sense (at least in the short term) that the woman stays at home to take care of the children, so that the loss of income is lower than if the man stayed at home.39 The problem is that when women take a family leave, the related career break leads many of them to leaving the labour market for a certain period, sometimes forever, and at least to delay the normal development of their careers, which contributes in turn to the existing gender pay gap—in a vicious circle that reinforces the situation. Therefore, in order to increase women’s participation in employment, the directive seeks to increase the possibilities for men to take up parental and caring responsibilities. As Kary and Tremblay summarise: “the evidence shows a reasonably high takeup of parental leave only in countries where there is a combination of fathers’ quota and high level of benefit. There is no evidence that any other combination would lead to high take-up by fathers”.40 With this background in mind, the Directive was carefully drafted in order to maximise the chances that women participate in the labour market in equal conditions to men. Even after being watered-down a bit during the negotiations, the important novelties of the Directive still show how this objective influenced the new rules. The new paternity leave stimulates men to get more involved in the early life of their children, benefitting by the same token the mother in a challenging period for both parents. Meanwhile, the fact that two months of paternal leave are

35 In 2017, the employment rate for men was 78% and for women was 66.5%, for the population. See Eurostat, Gender Pay Gap Statistics: in https://ec.europa.eu/eurostat/statistics-explained/index. php/Gender_statistics (consulted on 28 June 2019). 36 In 2017, there was a gender pay gap of 16% in the EU between men and women, to the detriment of women. This refers to the difference between average gross hourly earnings of male and female employees as % of male gross earnings. See Eurostat, Gender Pay Gap Statistics: in https://ec. europa.eu/eurostat/statistics-explained/index.php/Gender_pay_gap_statistics (consulted on 28 June 2019). 37 In 2017, in average there was a pension gap of 35.7% in the EU, again to the detriment of women. See Eurostat, quoted in “2019 Report on equality between women and men in the EU”, European Commission, p. 24. 38 OECD Family Database, section on “Use of childbirth-related leave benefits” http://www.oecd. org/els/family/PF2-2-Use-childbirth-leave.pdf (consulted on 28 June 2019). 39 Thévenon and Solaz (2013), p. 16. 40 Karu and Tremblay (2018), p. 356.

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paid and non-transferable stimulates men to take it, which can help mothers to get quicker to work. Finally, although unfortunately it is not provided that it must be paid, the carers’ leave, by assisting both men and women who need to provide care to close relatives, in fact ends up helping mostly women to maintain their employment—since women are frequently those who provide such care. One can notice that the new Directive has a double positive effect for women: it supports women: (1) in the short term or in the micro-level when they take the leaves, since it stimulates men to contribute more to the raise of their children, thereby alleviating the mothers’ burden) and (2) in the medium-long term or macro-level (since, by creating conditions for women to get back earlier to work, it increases their chances of continuing to be employed and developing their careers in general).41

5 Conclusion This chapter argued that the new Work Life Balance Directive can be considered one example of substantial positive action. First, this chapter reminded some fundamental aspects of positive action in EU law. The case law of the EU Court of Justice is quite restrictive on its use. It sees positive action as an exception to and not really as an instrument to achieve equality, while it over-emphasises the role of positive action in creating equal opportunities, not equal results. However, there is quite a variety of positive action measures at national level, more often in favour of women and persons with disabilities, some of which may not follow strictly the case law of the Court. Secondly, it described the historical origins of the new Work Life Balance Directive, as well as its main content—including both measures in favour of men only, such as the new paternity leave, and in favour of all workers regardless of their sex, such as the 2 months of paid parental leave, the 5 days of carers leave and the possibility to request flexible working arrangements. Thirdly, this chapter explained why we it can be argued that the new Directive is an example of positive action. It is neither a form of hard, nor of soft positive action, and, worst, it even gives more rights to men than to women. However, its purpose, the way it was designed and its likely effect is to increase equality of women in the labour market. In conclusion, the new Work Life Balance Directive may not be a form of positive action in the sense that is commonly understood, for example as a quota or a measure giving preference to women. But it is certainly action. And, for women, it is definitively positive.

41 This aspect of the Directive has been called to my attention by my good friend Miguel De la Corte-Rodríguez.

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References Chopin, Isabelle, Carmine Conte, and Edith Chambrie. 2018. A Comparative Analysis of Non-Discrimination Law in Europe 2018 Report for the ENLE. Brussels: European Commission Directorate-General for Justice Unit JUST/D1 Equal Treatment Legislation. De la Corte-Rodríguez, Miguel. 2019. EU Law on Maternity and Other Child-Related Leaves: Impact on Gender Equality. Alphen aan den Rijn: Wolters Kluwer. Karu, Marre, and Diane-Gabrielle Tremblay. 2018. Fathers on Parental Leave: An Analysis of Rights and Take-Up in 29 Countries. Community, Work & Family 21: 344–362. McCrudden, Christopher. 2019. Gender-Based Positive Action in Employment in the EU and EEA, Report also for the ENLE. Brussels. Oliveira, Álvaro. 2017. What Difference Does EU Law Make? The Added Value of EU Equality Directives on Access to Justice for Collective Actors. In How EU Law Shapes Opportunities for Preliminary References on Fundamental Rights: Discrimination, Data Protection and Asylum E.U.I. Working Papers, LAW, ed. Elise Muir, Claire Kilpatrick, Jeffrey Miller, and Bruno de Witte, 7–21. Badia Fiesolana: European University Institute Department of Law. Oliveira, Álvaro, and Michal Gondek. 2014. Women on Company Boards – An Example of Positive Action in Europe. Robert Schuman Centre for Advanced Studies Research Paper No. 2014/34. Oppenheimer, David. 1988. Distinguishing Five Models of Affirmative Action. Berkeley Women’s Law Journal 4: 42–61. ———. 1996. Understanding Affirmative Action. Hastings Constitutional Law Quarterly: 23, 921–997. Selane, Goran, and Linda Senden. 2011. Positive Action Measures to Ensure Full Equality in Practice Between Men and Women, Including on Company Boards. Report for the European Network of Legal Experts in Gender Equality and Non-Discrimination (ENLE). Brussels: European Commission Directorate-General for Justice Unit JUST/D1 Equal Treatment Legislation. Thévenon, Olivier, and Solaz Anne. 2013. Labour Market Effects of Parental Leave Policies in OECD Countries. OECD Social, Employment, and Migration Working Papers 141.

Part III

Selected Special Issues of Antidiscrimination Law

The European Union as a Protector and Promoter of Equality: Discrimination on Grounds of Sexual Orientation and Gender Identity Andreas R. Ziegler

Contents 1 2 3 4

Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Legal Foundations in the Treaties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . The EU Actors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Applicable Law Between the Member States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.1 Economic Freedoms, Non-discrimination and LGBTI . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.1.1 Goods and Services . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.1.2 Persons . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.1.3 Non-discrimination (at the Workplace) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.1.4 Staff Regulations Cases . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.2 Foreign Relations Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.2.1 Relations to Third Countries in General . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.2.2 Accession . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.2.3 Common Commercial Policy (CCP) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.2.4 Asylum . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 Conclusions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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Abstract While as a group the EU Member States are among the most advanced countries when it comes to protection and non-discrimination of LGBTI (lesbian, gay, bisexual, trans, intersex) persons, there remain huge differences among them. This is reflected in the limited competences of EU in this field (e.g. family law, education etc.). Even when the EU is competent to take concrete measures, they are normally subject to unanimity rules which makes progress slow. At the same time, the achievement of certain accepted goals with regard to other policies (internal market, security and asylum, staff regulations etc.) has made possible certain compromises between the Member States that have improved the situation (sometimes only after a clarification through the case law of the ECJ). In addition, despite the uneven acceptance within the UE, in its foreign relations the EU (or at least A. R. Ziegler (*) University of Lausanne, Law School, Lausanne, Switzerland e-mail: [email protected] © Springer Nature Switzerland AG 2020 T. Giegerich (ed.), The European Union as Protector and Promoter of Equality, European Union and its Neighbours in a Globalized World 1, https://doi.org/10.1007/978-3-030-43764-0_15

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certain actors like most importantly the Parliament) the EU is increasingly demanding a minimum threshold regarding he respect of human rights (also of LGBTI persons). This is particularly importance for so-called candidate countries and in commercial relations with developing countries.

1 Introduction Anybody familiar with the history of European integration will not be surprised to learn that the protection of LGBTI persons was not really an original concern of the EU. On one side, this has to do with general situation in Europe (and worldwide) at the time of the establishment of the European Communities, i.e. the 1950s. One can certainly claim that the awareness of the discrimination of persons related to their sexual orientation, gender identity and expression or sex characteristics (SOGIESC) was very limited even in Western Europe until the late 1960s/early 1970s. In the United States, the Stonewall riots of 1969 are sometimes seen as the turning point of the general debate, but it took many years before the legal situation of LGBTI persons experienced real improvements. In addition, the particular differences in the modern history of today’s members of the European Union (Cold War, Role of the Church etc.) make it difficult even today to achieve common standards—but this is not only the case with regard to the human rights of LGBTI persons. In 2018/19 the differences among the Member States when it comes to the protection of human rights and in particular specific minorities like LGBTI persons seem even more important. In October 2018, a disagreement among the Council on a wording on LGBTI rights led the Austrian Presidency to publish “Presidency Conclusions” instead of the customary “Council Conclusions” on the state of human rights in the EU.1 On 6 December 2018, only19 EU Member States signed a common paper prepared by the Maltese government, calling for continued efforts within the EU to ensure full protection of LGBTI rights. The same day afternoon in the EPSCO Council debate, the signatory member states showed an immediate commitment to ensure that the EU lives up to obligations to protect

1 See Council of the EU, Presidency Conclusions - The application of the Charter of Fundamental Rights in 2017 (Doc. 13093/18 of 12 October 2018): “The discussions in Council have not led to reaching a consensus on conclusions on the application of the Charter of Fundamental Rights in 2017. However, the Presidency concluded that the text annexed was supported or not objected to by 27 delegations. . . . § 37. It is noted that that LGBTI persons are still frequently victims of discrimination, physical violence and incitement to hatred and violence throughout the EU. Therefore, the Council’s 2016 Conclusions on LGBTI equality are recalled 7 and the Annual Report 2017 on the list of actions by the Commission to advance LGBTI equality, which was presented on 1 March 2018, on Zero Discrimination Day it is acknowledged with interest. . . .” (online at: http://data.consilium.europa.eu/doc/document/ST-13093-2018-INIT/en/pdf).

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LGBTI rights, refusing to accept to adopt Council Conclusions regarding “gender equality, youth and digitalization”, from which the Austrian Presidency had deleted a reference to LGBTIQ people on the request of Poland and Hungary.2 On the other side, although it can be argued that the EU was intended from the beginning to guarantee peace, democracy and rule of law in Europe, the focus was on economic integration (maybe as a means to achieve the former, normally referred to as functional approach3). Interestingly, the separation between “human rights” and “rule of law” on one side and “economic freedoms” on the other was overcome very quickly, as a truly integrated market very quickly involves the later issues. This was (and still is) also the case with regard to LGBTI persons, as they are entitled to move across Europe and to obtain protection at work as everyone else.4 Normally, the discrimination of LGBTI persons is particularly felt in the areas of criminal law (criminalization of certain behaviours, violence against minorities etc.) or family law. Areas where the EU still has no competence to act. At the same time, these areas are indirectly concerned when it comes to the questions of how works shall be protected, be it at work or when they move across Europe (free movement of persons). Even when it comes to the regulation of the internal market for services and goods, non-discrimination issues5 can play a role though this category remains of minor importance even today. The foreign policy of the EU is still less developed today, but even here we can see that a common approach leads to questions involving LGBTI issues. This is particularly true when it comes to security issues and, most importantly a common approach to asylum where the question whether persons prosecuted for the sexual orientation or gender identity shall be entitled to protection by the EU. While this contribution focuses on the role of the EU as such, one should not forget that all Member States of the EU are members of the Council of Europe and as such have ratified the European Convention of Human Rights (ECHR). In particular, the case law of the European Court of Human Rights has contributed to many achievements regarding the non-discrimination and respect of LGBTI persons that must be seen as an integral part of the EU system.6

2 Legal Foundations in the Treaties As of today, the following treaty provisions are particularly relevant for the protection of LGBTI persons in and by the EU.

2

See European Parliamentary Research Service (2019) and Council of the EU (2018). See Stikker (1951), pp. 436–444. 4 See Ziegler (2011), pp. 219–240. 5 See for details Wintemute (2017), pp. 180–203 or Pudzianowska and Śmiszek (2015). 6 See for example Gonzalez-Salzberg (2019); Johnson and Falcetta (2018), pp. 167–185; Shahid (2017). 3

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Art. 2 of the Treaty on European Union (TEU) in its current version adopted 20077 speaks of the respect of human dignity and the rights belonging to minorities, pluralism, non-discrimination and tolerance8—all terms that are particularly important in today’s debate on LGBTI rights.9 Art 3.3 TEU refers to the fight against “social exclusion and discrimination” and “cultural and linguistic diversity” and “Europe’s cultural heritage”—depending on how one interprets these notions it can be used as an argument against or in favour of the acceptance of different “life styles”. However, it is Art. 10 and 19 of the of the Treaty on the Functioning of the European Union (TFEU) that contain the clearest statement for the protection of sexual minorities. Art. 10 TFEU defines the “aim to combat discrimination based on sex, racial or ethnic origin, religion or belief, disability, age or sexual orientation”. This provision is rather exceptional in a world where very few domestic Constitutions (even in the EU Member States) contain such clear wordings, especially regarding the explicit mentioning of the term “sexual orientation”.10 Art. 10 TFEU must be seen in conjunction Art. 19 TFEU which no clearly empowers the EU “take appropriate action to combat discrimination based on sex, racial or ethnic origin, religion or belief, disability, age or sexual orientation.” Due to this exceptional character, such action may only be taken “to unanimously in accordance with a special legislative procedure and after obtaining the consent of the European Parliament”. This obviously is a major obstacle to achieving progress due to the differences among (current) governments of the EU Member States. In this context, one should also take note of the relevance of the reference to the Charter of Fundamental Rights of the European Union (equally as adopted in 2007) in Article 6 TEU. Art. 6 of the Charter prohibits “any discrimination based on any ground such as . . .sexual orientation”. Again, this was seen as almost revolutionary at the time of its adoption in 1997 (for the Treaty of Amsterdam) and 2000 (for the Charter)—though today one would regret the absence of the other relevant criteria

7 Most of this language (and the one found now in Art. 3.3 and 10) was originally introduced by the Treaty of Amsterdam in 1997 (OJ C 340, 10.11.1997) and later also incorporated into the Charter of Fundamental Rights of the European Union (in 2000) and the Draft Treaty establishing a Constitution for Europe (OJ C 169, 18.7.2003, pp. 1–150). For the time before, see Waaldijk and Clapham (1993). 8 “The Union is founded on the values of respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights, including the rights of persons belonging to minorities. These values are common to the Member States in a society in which pluralism, non-discrimination, tolerance, justice, solidarity and equality between women and men prevail.” 9 See for example the language used in the so-called Yogyakarta Principles, a set of principles developed by LGBTI in 2007 (updated in 2017) by activists that relate the specific situation of LGBT persons to the more general human rights discussion. See https://yogyakartaprinciples.org/. 10 As an example, one can mention the revised Swiss Constitution of 1998 where the wording “life style” was used to avoid clear reference to “sexual orientation” (and even more so “gender identity”).

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SOGIESC criteria.11 Neither intersex persons nor trans persons are officially mentioned in any of these documents, though the European Court of Justice (ECJ) has filled certain of these gaps in its case law—for some too little, for others too much (as always).12

3 The EU Actors Based on the above provision the EU institutions involved in the law-making have adopted a few specific instruments and the ECJ has used these provisions in its case law. These developments will be discussed in the next section. As a preliminary observation, one should, however mention the more political approach taken, in particular, by the European Parliament. It often adopts specific declarations regarding the rights of LGBTI person in the Member States and (even more importantly) around the world.13 In this activity the existence of the “European Parliament - Intergroup on LGBTI Rights” is worth to mention.14 Often the Parliament is active (with on-binding) resolutions and declarations where the Member States (and other EU institutions) are no yet willing or capable to act.15 Of the special institutions created by the EU for a better protection of Human Rights one should note the European Union Agency for Fundamental Rights (FRA) in Vienna16 and the European Institute for Gender Equality (EIGE) in Vilnius. In the latter’s establishment a clear reference was made to “sexual orientation” (though again not to the other SOGIESC criteria).17 As part of the actors in the Eu, though not official ones, one should mention the existence of specific NGOs like ILGA Europe (headquartered in in Brussels)18 and

11 See on the parallel development of a Directive establishing a general framework for equal treatment in employment and occupation in 2000 below. 12 See De Waele and Van der Vleuten (2011), pp. 639–666. 13 E.g. the Resolution (04.02.2014) on the EU Roadmap against homophobia and discrimination on grounds of sexual orientation and gender identity 2013/2183(INI), OJ C 93, 24.3.2017, p. 21. 14 European Parliament - Intergroup on LGBTI Rights: http://www.lgbt-ep.eu/about/. 15 For example, in February 2019, the European Parliament adopted a resolution on the rights of intersex people: European Parliament resolution on the rights of intersex people (2018/2878(RSP)). In addition, in March 2018, a majority of representatives in the European Parliament passed a resolution in a 435-109 vote condemning conversion therapy and urging European Union Member States to ban the practice (European Parliament resolution of 1 March 2018 on the situation of fundamental rights in the EU in 2016 (2017/2125(INI)). 16 http://fra.europa.eu/en/theme/lgbt. See most recently: European Union Agency for Fundamental Rights (2015). 17 Council Regulation 1922/2006/EC on establishing a European Institute for Gender Equality, OJ L 403/9–17 (2006). 18 http://www.ilga-europe.org.

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ECSOL (European Commission for Sexual Orientation Law)19 who do not limit their work to the EU but dedicate a lot of their work to it.

4 Applicable Law Between the Member States 4.1 4.1.1

Economic Freedoms, Non-discrimination and LGBTI Goods and Services

As we mentioned in the introduction, in the absence of a clear mandate to harmonize the human rights policies of the Member States, also in this area the relevance of the EU comes often from its economic integration activities. This is most important when it comes to the regulations of workers and their rights (more recently the treatment of European citizens) but it can also be of relevance regarding the integration of the internal market for goods and services.20 An interesting (though exceptional) example is the free movement of blood and blood components. The European Union had harmonized certain aspects of this market in 2002 and 200421 and the ECJ had an opportunity in 2015 to discuss the relevance of these instruments with regard to a ban for gay men to donate blood.22 In its judgment the ECJ made it clear that a different treatment of gay blood owners was only justified if it was scientifically proven that a higher risk of transferring diseases existed. Without such a justification an inadmissible discrimination (and thus violation of EU law) would exist. From a legal perspective one can say, that here a harmonization of the production methods of certain products was used to exclude unjustified discrimination against certain persons involved in the production of a good. This debate is known to international economic lawyers as the relevance of so-called processes and production methods (PPMs) affecting the characteristics of a product which can lead to unwanted technical barriers to trade (TBT).23 The most important development in this sphere would certainly be a general prohibition of discrimination when it comes to the consumption of goods and services. Today, there exists no harmonized rule in the EU which would make it illegal to discriminate against persons because of the SOGIESC.24 Such a rule,

19

http://www.sexualorientationlaw.eu. See for an early and general assessment: Dubos (2007). 21 Council Directive 2004/33/EC implementing Directive 2002/98/EC of the European Parliament and of the Council as regards certain technical requirements for blood and blood components, OJ L 91/25 (2004). 22 Case 528/13, Léger v Ministre des Affaires sociales, de la Santé et des Droits des femmes, (ECJ 29 April 2015). See Belavusau and Isailović (2015). 23 See for example Sifonios (2011). 24 But there exists a Council Directive 2004/113/EC implementing the principle of equal treatment between men and women in the access to and supply of goods and services, OJ L 373/37 (2004). 20

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however, has been proposed in 2008.25 The draft “Horizontal Anti-discrimination Directive” would forbid discrimination based on religion or belief, disability, age or sexual orientation in access to goods and services, education, and access to social benefits in a wider area of fields while now the protection “due to sexual orientation” is basically limited to the workplace.26 But due to the lack of support this project is currently not moving forwards.

4.1.2

Persons

Of the four basic freedoms, the one with most relevance for LGBTI persons is today certainly the free movement of persons.27 Many questions regarding LGBTI persons (and their families), however, remain controversial between the Member States (due to the absence of a harmonization in this field of at least a common approach). The issue of highest relevance is probably the question of the rights of a same-sex spouse28 of an EU citizen who herself or himself is not an EU citizen (or where dependent family members are not EU citizens or not recognized as family members29). The free movement of EU citizens and their relatives has developed over time and is since 2004 regulated in a comprehensive Directive (the Citizens’ Rights Directive 2004/38/EC).30 Already during the adoption, the questions relating to SOGIESC led to controversies and they increased with many EU member States introducing civil partnerships and ultimately even marriage. Only recently, in a judgment of 201831 the ECJ declared that at least for married partners no discrimination was justified even if the Member State concerned does not allow same-sex marriage.32

25 Proposal for a Council Directive on implementing the principle of equal treatment outside the labour market, irrespective of age, disability, sexual orientation or religious belief, COM(2008) 0426 - 2008/0140(CNS) of 02 July 2008. 26 See below 4.1.3. 27 See Ziegler (2011). 28 See for an early assessment of this problem Bull (2011), pp. 51–66 or Köhler (2011), pp. 309 ff. or early on Borrillo (2001), pp. 875–922. 29 See Falletti (2014), pp. 28–45. 30 Council Directive 2004/38/EC 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, OJ L 158/77–123 (2004). 31 Case 673/16, Coman & Hamilton, (ECJ 5 June 2018). See Tryfonidou (2018); Carlier (2019), pp. 203–221. 32 “In a situation in which a Union citizen has made use of his freedom of movement. . . whilst there, has created or strengthened a family life with a third-country national of the same sex to whom he is joined by a marriage lawfully concluded in the host Member State, Article 21(1) TFEU must be interpreted as precluding the competent authorities of the Member State of which the Union citizen is a national from refusing to grant that third-country national a right of residence in the territory of that Member State on the ground that the law of that Member State does not recognise marriage

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Non-discrimination (at the Workplace)

On the basis of the treaty provisions introduced originally in 1997 (Treaty of Amsterdam) the EU can now action to combat discrimination based on sex, racial or ethnic origin, religion or belief, disability, age or sexual orientation—but as this can only be done when all EU Members agree the resulting protection “relating to sexual orientation” remains rather limited. While a number of instruments have been adopted under this provisions (originally referred to as Article 13 Directives due to the original numbering under the Treaty of Amsterdam33), the only one clearly applying in cases of discrimination based on sexual orientation is Directive 2000/ 78 of 27 November 200034 while other instruments are limited in their scope to criteria such as race or sex.35 Non-discrimination at the workplace can be seen as a component of the EU’s role in the area of the free movement of persons (workers) and the adoption of certain common standards regarding the production of goods and services. In this field the EU as adopted several instruments over time and the ECJ has used them (at least since the mid-1990s but even before the explicit reference to SOGIESC in the treaties) to protect also LGBTI persons against discrimination.36 Interestingly here, the very first case concerned a trans person37 and many similar cases avoiding discrimination of trans persons were to follow.38 Similarly, the ECJ has played an important role in making the non-discrimination rules of these instruments available to those discriminated against due to their sexual orientation. While in the beginning the Court was hesitant (at least in delicate areas

between persons of the same sex. . . .“Article 21(1) TFEU is to be interpreted as meaning that, in circumstances such as those of the main proceedings, a third-country national of the same sex as a Union citizen whose marriage to that citizen was concluded in a Member State in accordance with the law of that state has the right to reside in the territory of the Member State of which the Union citizen is a national for more than three months. That derived right of residence cannot be made subject to stricter conditions than those laid down in Article 7 of Directive 2004/38.” 33 See Fitzpatrick (2007), pp. 313–343. 34 Council Directive 2000/78/EC establishing a general framework for equal treatment in employment and occupation, OJ L 303/16–22. 35 There is as controversy as to the legitimacy of this difference in the scope of protection (‘hierarchy of grounds’) is legitimate and consistent with international human rights law. See e.g. Howard (2018); Lahuerta and Zbyszewska (2019). 36 See Waaldijk and Bonini-Baraldi (2006). 37 Case 13/94, P v S and Cornwall County Council, (ECJ 30 April 1996): trans persons protected under sex equality law, Article 5(1) of the 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, OJ L 039/40 (1976). 38 Case 117/01, K.B. v National Health Service Pensions Agency, (ECJ 7 January 2004): sex equality and inability to change one’s legal gender (Directive 75/117); Case 423/04, Richards v Secretary of State for Work and Pensions, (ECJ 27 April 2006): Directive 79/7; Case 451/16, MB v Secretary of State for Work and Pensions, (ECJ 26 June 2018).

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such as the armed forces39 or the non-availability of marriage40) the Court became more active once the applicable secondary law, most importantly Directive 2000/78 of 27 November 2000,41 was in place,42 most recently even giving it a wider room of application for ongoing discrimination based on decisions taken before its entry into force.43

4.1.4

Staff Regulations Cases

A specific application of the non-discrimination of workers is obviously at stake when the EU itself is the employer. While the discrimination in the Member States is governed by the (limited) rules just described, the staff rules of the contain the relevant provision applying in this case. They evolved over time and this gave the ECJ the possibility to interpret them and apply them also to LGBTI persons. In particular, questions arose here when certain benefits were only available to married persons (while marriage was normally not available to same-sex partners). Here again one can see that in early times the staff rules were silent and the ECJ remained

39

Case 168/97, R. v Secretary of Richards v Secretary of State for Work and Pensions, (ECJ 27 April 2006): Directive 79/7; Case 451/16, MB v Secretary of State for Work and Pensions, (ECJ 26 June 2018).State for Defence, ex parte Perkins [1997], Application: OJ C 199/11 (1997); Removal from the register: OJ C 358/12 (1998). [Industrial Relations Law Reports 297 (3); (1997) 3 CMLR 310]: discrimination in the army still considered justified. 40 Case 249/96, Grant v South-West Trains Ltd, (ECJ 17 February 1998): travel concessions for her same-sex partner: no discrimination on the grounds of sex (too), but only on the grounds of sexual orientation, which was not protected. 41 The adoption of the so-called “Employment Directive” obliged all Member States to introduce legislation banning discrimination in employment on a number of grounds, including sexual orientation by December 2003. See Baer (2004). 42 Case 267/06, Tadao Maruko v Versorgungsanstalt der deutschen Bühnen, (ECJ 1 April 2008); Case 147/08, Jürgen Römer v Freie und Hansestadt Hamburg, (ECJ 10 May 2011): in search of the specific comparability between marriage and civil union; Case 81/12, Asociaţia ACCEPT v Consiliul Naţional pentru Combaterea Discriminării, (ECJ 25 April 2013); Case 267/12, Frédéric Hay v Crédit agricole mutuel de Charente-Maritime et des Deux-Sèvres, (ECJ 12 December 2013); Case 443/15, David Parris v Trinity College Dublin, (ECJ 24 November 2016). 43 Case 258/17, E.B. v Versicherungsanstalt öffentlich Bediensteter BVA, (ECJ 15 January 2019): “Article 2 of Council Directive 2000/78/EC of 27 November 2000 . . . must be interpreted as applying, after the expiry of the time limit for transposing that directive, namely from 3 December 2003, to the future effects of a final disciplinary decision, adopted before the entry into force of that directive, ordering the early retirement of a civil servant, accompanied by a reduction in his pension entitlement. . . . Directive 2000/78 must be interpreted as meaning that, in a situation such as that referred to in point 1 of the operative part of the present judgment, it obliges the national court to review, with respect to the period starting on 3 December 2003, not the final disciplinary decision ordering the early retirement of the civil servant concerned, but the reduction in his pension entitlement, in order to calculate the amount he would have received in the absence of any discrimination on the ground of sexual orientation.”.

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relatively inhibited.44 When the staff rules were amended, the ECJ changed its attitude.45

4.2 4.2.1

Foreign Relations Law Relations to Third Countries in General

Even if the protection of LGBTI persons in the EU remains uneven due to the differences between the member States and the limited competences of the EU in the field, its Member States still belong to the group with the best protection worldwide. This must therefore influence the relations of the EU as a whole with third countries.46

4.2.2

Accession

The foreign relations law of the EU is a rather recent creation and also in this field the competences of the EU remain limited. A particular situation arises where the EU enters into treaty negotiations and diplomatic processes with a view to future membership (accession) of a third country. Here, the EU regularly demands specific results regarding the protection of human rights and the rule of law. This can involve the protection of LGBTI persons. Countries wishing to join the Union will be obliged to introduce specific legislation. On the whole, on can say that the non-discrimination of LGBTI persons and the respect of their rights have become an ever more salient and controversial part of the EU enlargement process: Some would even argue that the EU is more demanding regarding the situation in accession candidates than with regard to some of its Member States. Especially in this field, the European Parliament often makes statements and expresses conditions regarding its approval of the accession treaty. Also upon accession, the EU normally has made available important resources to improve the situation of vulnerable groups, including LGBTI persons. E.g. over the period 2001 to 2006 (following the accession of many new members) a “Community Action Programme to Combat

44

Case T-264/97, D v Council of the European Union, (ECJ 28 January 1999); Case 122/99, P & C-125/99 P, D and Kingdom of Sweden v Council of the European Union, (ECJ 31 May 2001): non-recognition of registered relationships in Union Law justifies different domestic treatments. 45 Case F-86/09, W v Parliament, (EU Civil Service Tribunal (Second Chamber) 14 October 2010): Annex VII to the Staff Regulations had in the meantime been altered, providing benefits for spouses independently of their sex. 46 See Council of the European Union (2010) or EU Guidelines to promote and protect the enjoyment of all human rights by lesbian, gay, bisexual, transgender and intersex persons adopted by the Foreign Affairs Council of 24 June 2013, .

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Discrimination” was adopted, involving the expenditure of EUR100 million, to fight discrimination in a number of areas, including sexual orientation.47

4.2.3

Common Commercial Policy (CCP)

The most developed area of the external relations law of the EU is the so-called Common Commercial Policy. While it is more difficult to integrate the protection of LGBTI rights into multilateral instruments (in particular the WTO) or treaties with developed and emerging economies, the EU is more likely to make requests in its commercial policy towards developing countries, especially where it provides unilateral concessions based on the fulfilment of certain conditions. The most important instrument is the so-called Generalised Scheme of Preferences (GDP), an instrument available to WTO members in order to give benefits to specific developing countries. The EU’s GSP removes import duties from products coming into the EU market from vulnerable developing countries. In the view of the EU, this helps developing countries to alleviate poverty and create jobs based on international values and principles, including labour and human rights. When reviewing whether specific partners should still be entitled to benefits under this program, the EU regularly makes request regarding the treatment of LGBTI persons.48

4.2.4

Asylum

A rather specific (and more recent) competence of the EU that can be seen as part of its relations with third States but also as a consequence of its internal integration (and the abolishment of border controls) relates to the common policies regarding refugees. Due to its emotional perception and the problems related to migration in general, this area is particularly difficult when it comes to taking into account specific LGBTI issues.49

47 Council Decision 2000/750/EC of 27 November 2000 establishing a Community action programme to combat discrimination (2001 to 2006). From 1 January 2007, this programme was replaced by the so-called “PROGRESS Community programme” (Decision No 1672/2006/EC of the European Parliament and of the Council of 24 October 2006 establishing a Community Programme for Employment and Social Solidarity — Progress, OJ L 315/1–8 (2006). 48 A recent example would be the analysis made of Paraguay: European Commission (2019), Fact Sheet - EU trade policy encourages sustainable development and respect for human rights in vulnerable economies (Brussels, 19 January 2018): “Further attention is needed, in particular regarding the rights of indigenous peoples, violence and discrimination against women, child labour, discrimination against LGBT persons as well as the overall functioning of the justice system.”. 49 See for example Jansen and Spijkerboer (2011).

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The EU has taken measures50 that have an impact on the treatment of refugees related to their gender identity and sexual orientation.51 In the currently applicable norms, “gender identity” was expressly included in its hypernym “gender”52 whereas lesbians and gays are considered to be included in the category “particular social group”. As a consequence, the ECJ has had various occasions to address the measures taken by Member States and their compatibility with the harmonized rules. In this context the ECJ has clearly states, that homosexuals may be granted asylum if homosexuality is criminalised and actually punished in their country of origin,53 that human dignity and privacy of LGBTI persons should be respected in the evidentiary procedure,54 and most recently that it is inadmissible to assess a person’s sexual orientation only on the basis of “a psychologist’s expert report, the purpose of which is, on the basis of projective personality tests, to provide an indication of the sexual orientation of that applicant”.55

5 Conclusions While as a group the EU Member States are among the most advanced countries when it comes to protection and non-discrimination of LGBTI (lesbian, gay, bisexual, trans, intersex) persons, there remain huge differences among them. This is reflected in the limited competences of EU in this field (e.g. family law, education etc.). Even when the EU is competent to take concrete measures, they are normally subject to unanimity rules which makes progress slow. At the same time, the achievement of certain accepted goals with regard to other policies (internal market, security and asylum, staff regulations etc.) has made possible certain compromises between the Member States that have improved the situation (sometimes only after a clarification through the case law of the ECJ). In addition, despite the uneven acceptance within the UE, in its foreign relations the EU (or at least certain actors

50 Council Directive 2004/83/EC on minimum standards for the qualification and status of third country nationals or stateless persons as refugees or as persons who otherwise need international protection and the content of the protection granted, OJ L 304/12–23 (2004); Repealed by Council Directive 2011/95/EU 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, OJ L 337/9 (2011). 51 Here as in other areas, the role of the ECHR should not be forgotten: see Falcetta and Johnson (2018) and Byron (2016). 52 Article 10 §1 Letter d. 53 Case 199/12, Case 200/12 and Case 201/12 (joined), X, Y and Z v Minister voor Immigratie en Asiel, (ECJ 7 November 2013). 54 Case 148/13, Case 149/13 and Case 150/13 (joined), A, B and C v Staatssecretaris van Veiligheid en Justitie, (ECJ 2 December 2014). 55 Case 473/16, F v Bevándorlási és Állampolgársági Hivatal, (ECJ (Third Chamber) of 25 January 2018).

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like most importantly the Parliament) the EU is increasingly demanding a minimum threshold regarding he respect of human rights (also of LGBTI persons). This is particularly importance for so-called candidate countries and in commercial relations with developing countries.

References Baer, Susanne. 2004. Combating Sexual Orientation Discrimination in Employment: Legislation in Fifteen EU Member States — Report of the European Group of Experts Combating Sexual Orientation Discrimination about the Implementation up to April 2004 of Directive 2000/78EC Establishing a General Framework Treatment in Employment and Occupation. Berlin. Belavusau, Uladzislau, and Ivana Isailović. 2015. Gay Blood: Bad Blood? A Brief Analysis of the Léger Case [2015] C-528/13, European Law Blog 26 August 2015, online at: . Accessed 09 October 2019. Borrillo, Daniel. 2001. Pluralisme conjugal ou hiérarchie des sexualités: la reconnaissance juridique des couples homosexuels dans l’Union européenne. Revue de droit de McGill 46: 875–922. Bull, Henrik. 2011. Free Movement of Persons and the Recognition of Foreign Marriages. In Europäische Integration und Globalisierung, ed. Werner Meng, Georg Ress, and Thorsten Stein, 51–66. Baden-Baden: Nomos. Byron, Christine. 2016. The European Court of Human Rights: A Living Instrument as Applied to Homosexuality. The Judges’ Journal 55. Carlier, Jean-Yves. 2019. Vers un ordre public européen des droits fondamentaux – l’exemple de la reconnaissance des mariages de personnes de même sexe dans l’ârrêt Coman (obs. sous C.J.U. E., Gde Ch., arrêt Coman, 5 juin 2018). Revue trimestrielle des droits de l’homme 117: 203–221. Council of the EU. 2018. Joint Non-paper on the Future of the LGBTI List of Actions. . Accessed 09 October 2019. De Waele, Henri, and Anna Van der Vleuten. 2011. Judicial Activism in the European Court of Justice: The Case of LGBT Rights. Journal of International Law and Practice 19: 639–666. Dubos, Olivier, ed. 2007. Sexe, sexualité et droits européens: enjeux politiques et scientifiques des libertés individuelles. Paris: Pedone. European Commission. 2019. Fact Sheet - EU Trade Policy Encourages Sustainable Development and Respect for Human Rights in Vulnerable Economies. . Accessed 09 October 2019. European Parliamentary Research Service. 2019. The Rights of LGBTI People in the European Union. . Accessed 09 October 2019. European Union Agency for Fundamental Rights. 2015. Protection Against Discrimination on Grounds of Sexual Orientation, Gender Identity and Sex Characteristics in the EU – Comparative Legal Analysis – Update 2015. Luxembourg: Publications Office of the European Union. . Accessed 09 October 2019. Falcetta, Silvia, and Paul J. Johnson. 2018. Migration, Sexual Orientation, and the European Convention on Human Rights. Journal of Immigration, Asylum and Nationality Law. Falletti, Elena. 2014. LGBTI Discrimination and Parent–Child Relationships: Cross-Border Mobility of Rainbow Families in the European Union. Family Court Review 52: 28–45.

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Fitzpatrick, Barry. 2007. The “Mainstreaming” of Sexual Orientation into European Equality Law. In Equality Law in an Enlarged European Union: Understanding the Article 13 Directives, ed. Helen Meenan, 313–343. Cambridge: CUP. Gonzalez-Salzberg, Damian A. 2019. Sexuality and Transsexuality Under the European Convention on Human Rights: A Queer Reading of Human Rights Law. Oxford: Hart Publishing. Howard, Erica. 2018. EU Anti-discrimination Law: Has the CJEU Stopped Moving Forward? International Journal of Discrimination and the Law 18: 60–81. Jansen, Sabine, and Thomas Spijkerboer. 2011. Fleeing Homophobia. Asylum Claims Related to Sexual Orientation and Gender Identity in Europe. COC Nederland: Free University Amsterdam, online at: . Accessed 09 October 2019. Johnson, Paul J., and Silvia Falcetta. 2018. Sexual Orientation Discrimination and Article 3 of the European Convention on Human Rights: Developing the Protection of Sexual Minorities. European Law Review 43: 167–185. Köhler, Christian. 2011. Vom Markt zum Menschen: Das internationale Familienrecht der Europäischen Union nach dem Vertrag von Lissabon. In Europäische Integration und Globalisierung, ed. Werner Meng, Georg Ress, and Thorsten Stein, 309ff. Baden-Baden: Nomos. Lahuerta, Sara Benedi, and Ania Zbyszewska. 2019. EU Equality Law: Looking Ahead After Twenty Years of Policy-Making, European Law Blog. . Accessed 09 October 2019. Pudzianowska, Dorota, and Krzysztof Śmiszek. 2015. Combating Sexual Orientation Discrimination in the European Union. Luxemburg: Publications Office of the European Union. Shahid, Masuma. 2017. The Right to Same-Sex Marriage: Assessing the European Court of Human Rights’ Consensus-Based Analysis in Recent Judgments Concerning Equal Marriage Rights. Erasmus Law Review 10. Available at: . Accessed 09 October 2019. Sifonios, David. 2011. Processes and Production Methods (PPMs) in WTO Law - Interfacing Trade and Social Goals. Cambridge: CUP. Stikker, Dirk U. 1951. The Functional Approach to European Integration. Foreign Affairs: 436–444. Tryfonidou, Alina. 2018. Free Movement of Same-Sex Spouses within the EU: The ECJ’s Coman Judgment, European Law Blog of 19 June, online at: . Accessed 09 October 2019. Waaldijk, Kees, and Matteo Bonini-Baraldi. 2006. Sexual Orientation Discrimination in the European Union: National Laws and the Employment Equality Directive. The Hague: Asser Press. Waaldijk, Kees, and Andrew Clapham, eds. 1993. Homosexuality: A European Community Issue Essays on Lesbian and Gay Rights in European Law and Policy. International Studies in Human Rights. Dordrecht: Brill Nijhoff. Wintemute, Robert. 2017. European Law Against Discrimination on Grounds of Sexual Orientation. In Same-Sex Relationships and Beyond - Gender Matters in the EU, ed. Katharina BoeleWoelki and Angelika Fuchs, 180–203. Cambridge: Intersentia. Ziegler, Andreas R. 2011. LGBT Rights and Economic Migration: Will the Liberalization of the Movement of Persons in Economic Integration Agreements Increase the Need for Common Regional Standards Regarding Civil Status Rights? In Equality and Justice - Sexual Orientation and Gender Identity in the XXI Century, ed. Alexander Schuster, 219–240. Udine: Editrice Universitaria Udinese srl. Available at: . Accessed 09 October 2019.

Overweight and Obesity as Novel Grounds of Discrimination Dagmar Richter

Contents 1 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 Facts and Data . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.1 The Body Mass Index: A Suitable Measuring Instrument? . . . . . . . . . . . . . . . . . . . . . . . . . . 2.2 The Prevalence of Overweight in an Obesogenic Environment . . . . . . . . . . . . . . . . . . . . . 2.3 Causes for Individual Overweight: Genetics and Epigenetics Under the Influence of Obesogenic Factors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.4 Risks to Health and the Consequences for Society as a Whole . . . . . . . . . . . . . . . . . . . . . 2.5 The Stigmatisation of Overweight People . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 Legislative Concepts to Combat Overweight and the Issue of State Responsibility . . . . . . 3.1 FOP Nutrition Labelling: Regulation (EU) No. 1169/2011 and Its Implementation in Member States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.2 “Fat Taxes” and the Like . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.3 Can Nutritional Behaviour Be Influenced by Government Measures? . . . . . . . . . . . . . . 3.4 Self-Responsibility and State (EU) Responsibility for the Prevention of Overweight . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 Discrimination on Grounds of Overweight: Key Issues . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.1 Suitability of the Concept of Discrimination in the Light of Existing Legislation . . 4.2 Is Overweight (Obesity) Covered by Specific Grounds of Discrimination? . . . . . . . . . 4.2.1 Can Overweight Be Considered a Disease, and Does Disease Constitute a Ground of Discrimination? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.2.1.1 The Connection Between Overweight and “Disease” in the Framework of WHO Standards . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.2.1.2 The Distinction Between “Disease” (Sickness) and “Disability” in General: ECJ in Chacón Navas (2006) and HK Danmark (2013) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.2.2 Is Obesity a “Disability”? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.2.2.1 The Notion and Concept of “Disability” . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.2.2.2 The Relationship Between “Disease” and “Disability” in Obesity Cases: ECJ in Kaltoft (2014) and Ruiz Conejero (2018) . . . . . . . . . . 4.2.3 The Potential Relevance of the Criterion of “Genetic Disposition” . . . . . . . . . 4.3 Is Overweight Covered by Open Clauses on Discrimination? . . . . . . . . . . . . . . . . . . . . . . . 4.3.1 Is Art. 21 FRC an Open Clause at All? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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4.3.2 “Other Status” in the Sense of Art. 14 ECHR . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.3.3 Similarity and Comparability of the Overweight Criterion with Existing Criteria of Discrimination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.4 Applicability of the General Principle of Non-discrimination . . . . . . . . . . . . . . . . . . . . . . . 5 Conclusions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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Abstract The article approaches the problem on the basis of available facts and data on overweight and obesity in particular. The current state of science on the definition and causes of overweight is reviewed, as are the findings on associated health risks, economic implications and the stigmatisation of overweight people. Although the analysis shows that overweight is based on a complex mixture of factors, with the obesogenic environment meeting individual characteristics, prejudices in society are still based on what is called the “myth of controllability”. These findings serve as the basis for the following question as to what responsibility the EU and EU Member States may have for combating excessive overweight and what methods of combating it are likely to succeed at all. Particular attention is thereby paid to Regulation (EU) No. 1169/2011 on the provision of food information to consumers in the form of nutrition declarations and food labelling. The author shows that unclear effects complicate the introduction of mandatory regulation, whilst the absence of mandatory regulation renders the effects even more obscure. However, the focus is on whether the concept of discrimination is suitable to tackle differentiating measures on grounds of overweight, and whether overweight discrimination is or should be prohibited. The article here refers to Art. 21 of the EU Fundamental Rights Charter and Art. 14 ECHR. On the basis of the existing case law of the European Court of Justice and pertinent WHO standards, it explains why overweight (obesity) in most of the cases is not covered by specific grounds of discrimination such as “illness”, “disability”, or “genetic features”. As concerns disability in particular, the author points out that in deviation from the WHO and U.N. Convention standards, the ECJ applies a “deficit understanding” of disability which is ultimately based on prejudices. In view of the problems identified in applying specific criteria, Art. 21 FRC and Art. 14 ECHR are further examined to determine whether they are both open anti-discrimination clauses and whether overweight constitutes an “other status” on the basis of which discrimination is also prohibited. The author considers it probable that the European Court of Human Rights could recognise overweight as such a status. As far as EU law is concerned, however, limits of the applicability of antidiscrimination law will play a major role. The author points out that cases in which EU anti-discrimination law is applied in the purely domestic area of application within individual Member States on the basis of secondary legislation (such as, e.g., in the ECJ case of Kaltoft) are handled differently from cases with cross-border implications, and takes a critical look at the consequences of this for European antidiscrimination law.

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1 Introduction The article deals with the question whether, in the legal system of the European Union, overweight (obesity) has become or should be considered a (novel) ground of prohibited discrimination.1 This question seems promising for three reasons. Firstly, overweight is a trigger for massive prejudice that underestimates a person’s capacity. Secondly, obesity has become one of the most pressing problems of ageing affluent societies. Thirdly, we can see that the established criteria of prohibited discrimination have increased over time. Only in a later phase of development have we found criteria such as “disability”, “age” or “sexual orientation” in the legal texts, e.g. in Art. 10 of the Treaty on the Functioning of the European Union (TFEU 1992). The possibility of increasing criteria, however, is expressed much earlier in the form of “open” clauses on the prohibition of discrimination such as the prohibition of discrimination on the ground of “other status”, e.g. in Art. 14 of the European Convention on Human Rights (ECHR 1950), and possibly Art. 21 of the Charter of Fundamental Rights of the European Union (FRC 2000/2012). Therefore, the questions will be whether overweight today is covered either by one of the specific criteria of discrimination, or constitutes an “other status”, and what significance this has for the law of the European Union. The extent of the problem and first cases which have reached the European Court of Justice (ECJ) give cause for a fundamental clarification of the questions connected with the topic “overweight”.

2 Facts and Data 2.1

The Body Mass Index: A Suitable Measuring Instrument?

Overweight is traditionally measured using the so-called Body Mass Index (BMI). BMI, formerly called the Quételet2 index, is a measure for indicating nutritional status in adults. It is defined as a person’s weight in kilograms divided by the square of the person’s height in meters (kg/m2). For example, an adult who weighs 87 kg and whose height is 1.70 m will achieve a BMI of just over 30 kg/m2 (87:2.89 ¼ 30.1). He or she is considered to be obese grade I, not just overweight. Whereas obesity grade I requires a BMI of at least 30.0, pre-obesity (overweight) already starts with a BMI of 25.0. Obesity grade II begins at a BMI of 35, obesity grade III at a BMI of 40.3 While “overweight” serves as the generic term, “obesity” means severe forms of overweight. 1

See already, with a focus on comparative public law, Richter (2015b), pp. 155–181. Quételet (1832), p. 1; Quételet (1871). 3 World Health Organization (WHO 2019). Health Topics: Body Mass Index. . 2

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And yet, the significance of these numerical data should not be overestimated. It is well established today that the BMI cannot take into account age- and gendertypical deviations. Nor can it adequately reflect special features such as a greatly increased muscle mass. Nevertheless, it serves as a practicable yardstick for obtaining initial indications of possible health hazards that may be associated with overweight. More precise statements can only be obtained on a more detailed basis, which also uses alternative methods such as the “hip-waist ratio” and individual parameters. However, the higher the BMI, the more evidence there is.

2.2

The Prevalence of Overweight in an Obesogenic Environment

The problem of overweight has taken on epidemic dimensions: In the then 28 member states of the European Union, 51.8% of all adults were overweight in 2014 (most recent comprehensive Eurostat data), of which 59.1% were men and 44.7% women. Malta has the highest overall rate with 61%, Italy the lowest with 44.9%.4 In the 34 member states of the Organisation for Cooperation and Development (OECD), more than one in two adults and nearly one in six children are overweight or obese in the OECD area.5 According to current OECD figures (2015–2017) 53.9% of all adults are overweight, of which 19.4% are obese.6 While the proportion of overweight people had risen rapidly between 2000 and 2015 in all states, there could be a turning point thereafter. From 2016 onwards, the percentages seem to fall slightly, at least for very few countries (e.g., Canada, Korea),7 possibly as a result of active measures against overweight. A closer look at the data reveals significant differences for distinct population groups. In most countries, more men than women are affected by overweight, which is explained by the fact that women are subject to stricter social expectations regarding their appearance. Overweight and obesity are also associated with belonging to social groups and can indicate “social deprivation”. It occurs more frequently in social groups with low socio-economic status and low education than in those with higher status and higher education, and this connection is even more

EUROSTAT (2014), Table 1: Share of overweight population by sex and age, 2014. . A third wave of the European health interview survey is foreseen in 2019. The publication of new data is planned for 2020. 5 OECD Obesity Update (2017a). . 6 OECD (2017b). Overweight and obesity among adults, in Health at a Glance 2017: OECD Indicators, OECD Publishing, Paris. 4. Risk Factors for Health. Table 4.14: Overweight including obesity among adults 2015 (or nearest year). doi: . 7 OECD Stat 2019. Health, Non-Medical Determinants of Health: Body Weight (2000–2018) [including 23 states]. . 4

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pronounced among women than among men.8 Educational attainment has more influence than socio-economic status.9 Older people are more affected than younger ones.10 In addition, there are regional differences in the prevalence of obesity even within the same country. The different states of development of the individual countries can cause deviations, but also cultural variations, which consider obesity more or less attractive. The attractiveness of the corpulence, for example, seems to be particularly high when society suffers from economic and food shortages, as prehistoric Venus figures or “Rubens women” of the seventeenth century illustrate. A study11 related to Germany has shown, for example, that the area of the former GDR is more affected by obesity and diabetes than the “old Federal Republic”. In this respect, the spread of obesity seems to coincide with the regional distribution of prosperity and social deprivation. But even the equipment of the respective residential environment, such as sports facilities or walking paths (“walkability”), can play a statistically relevant role. The local or regional factors mentioned, which are reflected in an increased prevalence of obesity, are summarised under the term “area level deprivation”. The sometimes large statistical deviations in the prevalence of obesity in the various societies in individual regions at different times show that the phenomenon of an “obesogenic environment” plays an important role,12 i.e. a certain social, economic or cultural context tends to promote the emergence of obesity or vice versa. Hence, there exists a statistical probability for people to become overweight depending on the living environment. However, this does not mean that every individual becomes overweight in a highly obesogenic zone.

2.3

Causes for Individual Overweight: Genetics and Epigenetics Under the Influence of Obesogenic Factors

Obesity is the result of a long-term positive energy balance, i.e. the body’s energy intake exceeds energy consumption for months or years. For example, a positive energy balance of only 10% can lead to a weight gain of 13.5 kg per year.13 Apparently, there exists a disorder that causes the feeling of satiety in the persons concerned to be inadequate or even non-existent. It is unclear, however, what

8

Fichter (2015), pp. 45–55. Maier et al. (2014), p. 10. . Also . 10 According to EUROSTAT (2020/2014) the overweight rate in the 18–24 age group is 22.8%, in the 35–44 age group 48.6%, in the 65–74 age group 66%, and in the age group of 75 or over 58.8%. 11 Maier et al. (2014). 12 Maier et al. (2014), p. 8. 13 Ulijaszek and Lofink (2006), p. 337 (at 345). 9

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triggers this process. Obesity is therefore usually described as a “complex, multifactorial disorder” resulting from the interaction of various genetic-biological, environmental and behavioural factors.14 In more rare cases, it can also result from diseases such as, e.g., endocrinological disorders. One then speaks of “secondary obesity”.15 The influence of genetics16 is complex and can range between 30 and 70% in individuals. According to the so-called “set-point theory” every human being has an individual set point around which the weight is ultimately levelled.17 Not without reason there are numerous expressions of the ability to store fat reserves in the human genome. Originally, the existence of “thrifty genes” in homo sapiens was advantageous because it increased the chances of survival in phases of hunger, increased the fertility of women and enabled the expansion of the human brain. Only under the conditions of a modern affluent society with a rich food supply for all do the “thrifty genes” become a problem.18 Even if people are genetically highly burdened, they do not necessarily become obese. Inheritance plays a major role, but not the only one. This is explained by the fact that the genetic burden can be relativised by environmental effects. Epigenetic mechanisms include the possibility of methylation, which alters the effect of a gene but not its actual content. Thus the decisive factor is not what is written in the genes, but how they are shaped.19 Still, that doesn’t change the fact that staying slim is much more difficult with an overweight disposition than without it. In addition to the predisposition, there is a wealth of obesogenic environmental factors.20 While cultural ideas, the level of education, gender, age, membership of certain social strata or economic conditions are statistically reflected on a macro level, i.e. in differently affected areas or parts of society, a number of environmental factors have an effect in the personal vicinity. As in genetics, they explain the individual deviations within the individual spaces or population groups at the micro level, because the individuals react differently to obesogenic factors. One of the particularly well documented factors is the increased consumption of television by children and adolescents. E.g., the higher availability of entertainment media, passive transport structures, eating habits and circumstances, increasing food portions, an increased sugar and fat content of food (especially fast food) and the aggressive advertising of such food have an obesogenic effect.21

14

Wang (2008), p. 1900 (at 1906–1907). Karam and McFarlane (2007), pp. 641–650. 16 Frieling, et al. (2015), pp. 113–117. 17 Wang (2008), p. 1907. 18 Ulijaszek and Lofink (2006), pp. 341 et seq. 19 Meaney and Szyf (2005), pp. 103–123; Szyf (2013), pp. 2–4. 20 Swinburn et al. (1999), pp. 563–570. 21 Ulijaszek and Lofink (2006), pp. 347 et seq. 15

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Scientists have found in rat experiments that a certain (optimal) ratio between fat and carbohydrates, namely a ratio of 35:65%, can lead to hedonic hyperphagia.22 This ratio occurs, for example, in notorious “fatteners” such as potato chips or chocolate. It apparently stimulates the reward centre in the brain and can—at least in combination with other molecular determinants—deactivate the feeling of satiety and trigger addiction processes. Although there is still no complete clarity about all triggers, it has become clear that the ratio of fat and carbohydrates is decisive for palatability and food intake, not absolute energy density. However, individuals respond differently to the same obesogenic factors, because human behaviour can play a role. One of the common explanatory approaches in behavioural theories is the assumption that obese people generally react more impulsively to external stimuli (theory of externality)23 or that they compensate fear and stress with excessive food intake (theory of psychosomatic feeding).24 Recently, connections between impulsivity, body fat accumulation and certain brain structures have been detected.25 However, it still remains unclear why, for example, one person reacts to stress with loss of appetite, while another person in the same situation is prone to eating attacks. In spite of certain indications, it has not yet been sufficiently clarified whether obesity must in part be regarded as an addictive disease.26 In addition, there has been increasing evidence that the composition of microbes in the intestine (microbiome) has a significant influence on individual nutritional behaviour. This is because each bacterial species within the gut aims to increase its own fitness, habitat, and survival via specific fermentation of dietary nutrients and secretion of metabolites, many of which can influence host appetite and eating behavior by directly affecting nutrient sensing and appetite and satiety-regulating systems. Understanding these mechanisms is considered to provide a better understanding of conditions wherein appetite is dysregulated, such as obesity and other metabolic or eating disorders, leading to novel biotherapeutic strategies.27 Overall, the available findings show that a wealth of obesogenic factors including environmental, social and economic conditions as well as age, gender, genetic and behavioral predispositions plus the “microbiome” may affect the individual to varying degrees. This means that people are not in the same starting position when it comes to preventing or combating obesity. Rather, the possibility and reasonableness of keeping weight under control by will effort are extremely different for the individual, especially with regard to the influence of genetic and endocrinological factors, and can hardly be assessed from the outside. In the case of the most

22

Hoch et al. (2015), Article number: 10041. Schag et al. (2013), pp. 477–495; Giel et al. (2017), pp. 1170–1178; Bénard et al. (2018), pp. 1–11. 24 Ulijaszek and Lofink (2006), pp. 347 et seq. 25 Kakoschke et al. (2019). No. 2580. 26 Hebebrand et al. (2014), pp. 295–306. 27 Van de Wouw et al. (2017), pp. 727–745. 23

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severe forms of obesity, there is much to suggest that this can no longer be eliminated by one’s own efforts (dietary cures), even with the use of extreme willpower.28

2.4

Risks to Health and the Consequences for Society as a Whole

From a statistical point of view it is unhealthy to be overweight. Being overweight increases the risk of developing diabetes mellitus, cardiovascular disease, sleep apnea, stroke and certain types of cancer; the risk of death also increases exponentially with the severity of obesity.29 However, the increase in risk cannot be assumed in general terms and not equally for all forms of obesity. Only a few impairments such as shortness of breath, fatty liver or joint pain are quite likely in cases of severe obesity. On the other hand, only three out of four obese people develop secondary diseases, i.e. a quarter of those affected do not develop any diseases at all.30 Nobody can predict with certainty whether a certain individual will actually develop diabetes or suffer from heart failure. This matches the results of recent studies, according to which the state of health of overweight individuals is not determined solely by biological and medical parameters.31 However, there is evidence that the amount of a certain enzyme (“HO-1”) present in the organism that regulates inflammatory processes corresponds to the (non-)occurrence of secondary diseases.32 The increase in overweight in human populations also has economic implications. The more obesity, for example, is prevalent in a certain region, the greater the incidence of diabetes, the higher expenditure on medical treatment is rising. Almost ten years ago, an OECD study already showed that health care costs due to obesity usually amounted to 1–3% of the total expenditure in the health care sector, but especially in the USA with its enormously high obesity rates already 5–10%.33 In addition to the direct costs for the treatment of secondary diseases, there are also indirect costs of lost work time and productivity.34 Considerable indirect costs are also caused by the fact that overweight people find less employment and earn less (up to 18% “wage penalty”) than those of normal weight.35 This is mainly due to

28

Richter (2015b), pp. 170, 179. The particularly data-rich MELANY long-term study revealed varying degrees of increased risk with increasing BMI. See Tirosh et al. (2005), pp. 1454–1462; Tirosh et al. (2011), pp. 1315–1325. 30 Frankfurter Allgemeine Zeitung, 9 July 2014, No. 156, p. N 1 (“Was Dicke krank macht”). 31 Supra 2.3. 32 Jais et al. (2014), pp. 25–40. 33 Sassi (2010), p. 29. 34 Sonntag and Schneider (2015), p. 379 (at 380). 35 Lundborg et al. (2010); Sassi. OECD (2010), at 97–100. For more details see 2.5. 29

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prejudice (stigmatization), which makes hiring more difficult even when there is no evidence to suggest that performance by a specific person is impaired.

2.5

The Stigmatisation of Overweight People

The question of whether overweight people are stigmatised can be clearly answered in the affirmative. Numerous investigations prove that over-weighty humans are considered sluggish, unproductive, uncontrolled, driveless, less competent and ugly,36 which underlines also the unfriendly designation as obesity. Already in school and training over-weighty children meet massive rejection, which weakens their self-confidence lastingly. The rejection of obese people is even more aggressive than towards the disabled.37 As mentioned before, overweight people are less likely to be hired or promoted than normal-weight people in a comparable position.38 The fact that even doctors are prone to negative stereotyping is shown by the fact that they devote less time to overweight people than to normal-weight people.39 As experiments revealed, prejudices disappear as soon as test persons are told that the overweight of the persons to be assessed is due to a hormonal disorder. From this it is deduced that it is not the “unaesthetic sight” that leads to the rejection of overweight people, but the interpretation of overweight as a result of moral weakness, weakness of will and life guilt. In the U.S. discussion the term “myth of controllability” is used in this respect.40 According to the prevailing “attribution theory”, the stigma results from the fact that overweight people are held to be to blame for their fate and on this basis assigned negative characteristics.41 On the one hand, this favours weight-related discrimination,42 but on the other hand it also allows the reduction of prejudices if and to the extent that external, unimpressible factors for overweight are imparted to the environment. It has rightly been argued that the stigmatisation of obese people is more detrimental to them than the actual overweight. The problem is not so much that the supposed health risks are derived from a one-sided biological perspective.43 Rather, it seems to be a problem of generalisation. It should be considered that prejudices vis-à-vis obese individuals are based on well-founded statistical

36 Puhl and Brownell (2001), pp. 788–805; Brownell (2005), p. 1; Puhl and Heuer (2009), pp. 941–964; Schafer and Ferraro (2011), p. 76 (at 78). 37 Wang (2008), p. 1920; Puhl and Brownell (2001), pp. 789 et seq. 38 Giel et al. (2012), p. 525; Puhl and Brownell (2001), p. 795. 39 For numerous references see Wang (2008), p. 1912. 40 Wang (2008), pp. 1917–1918. 41 Puhl and Brownell (2003), p. 213 (at 215). 42 Infra 4. 43 Wang (2008), p. 1902.

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expectations on obese people in their totality.44 However, findings on statistical frequency do not necessarily apply to the individual. The stigmatising effect is therefore that the individual is inevitably treated as a fictitious person corresponding to the average value for a group.

3 Legislative Concepts to Combat Overweight and the Issue of State Responsibility The dramatic increase in obesity over the last decades has prompted several countries, as well as the EU, to combat the rising calorie content in food. This aspect is important for the topic because, among other factors, the composition and presentation of food affects the extent of overweight in societies.45 Experience with state regulations on the containment of foods with excessive calorie content allow statements on state responsibility. If overweight does not only appear as a result of individual predispositions and individual eating behaviour, discrimination due to overweight also presents itself in a different light.

3.1

FOP Nutrition Labelling: Regulation (EU) No. 1169/ 2011 and Its Implementation in Member States

An important starting point for the fight against overweight is the presentation of food and beverages. As early as 2004, the WHO has endeavoured to propagate “front of pack” (FOP) nutrition labelling as a measure to promote a healthy diet and to prevent overweight.46 FOP nutrition labelling systems have been implemented globally with two common goals: (1) to communicate complex information to consumers in an easily understood, standardized format, to guide, inform and shape consumer food choices and behaviours; and (2) to stimulate industry reformulation.47 The European Union followed this approach by introducing harmonized standards on nutrition declaration as well as obligatory food labelling.

44

Supra 2.4. Supra 2.3. 46 WHO 2004: Global Strategy on Diet, Physical Activity and Health; WHO 2013a: Global Action Plan for the Prevention and Control of Noncommunicable Diseases, 2013–2020; WHO 2016: Report of the Commission on Ending Childhood Obesity; WHO 2013b: Joint FAO/WHO workshop on Front-of-Pack Nutrition Labelling; WHO 2015: Technical meeting on nutrition labelling for promoting healthy diets. See for all documents Geneva: WHO. . 47 Kanter et al. (2018), p. 1399 (at 1406). 45

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Regulation (EU) No. 1169/2011 on the provision of food information to consumers (“FIC Regulation”)48 seeks to provide the basis for the assurance of a high level of consumer protection in relation to food information, “taking into account the differences in the perception of consumers and their information needs whilst ensuring the smooth functioning of the internal market” (Art. 1). It not only refers to the competence norm of Art. 169 TFEU but also to Art. 114 TFEU conferring on the Union a competence for the adoption of measures for the approximation of Member States’ law relating to the internal market.49 The stated aim of the FIC Regulation is to enable consumers to make an informed choice.50 However, the EU has opted for a rather cautious model mainly relying on certain “mandatory food information” as being listed in Art. 9 of the FIC Regulation, and improved presentation of claims on food packaging (Art. 12, 13). Mandatory particulars shall include, inter alia, all the ingredients of the food, in descending order of weight, and a nutrition declaration.51 The mandatory nutrition declaration in particular shall contain information about the energy value as well as the amounts of fat, saturates, carbohydrate, sugars, protein and salt (Art. 30 § 1). As far as the presentation of mandatory information is concerned, the FIC Regulation establishes a couple of technical requirements ensuring clarity such as, e.g., tabular format, placement in the principal field of vision, and a minimum font seize (Art. 12, 13, 34). However, graphical forms or symbols, which could be considered to perfectly support easy legibility, are declassified by the Regulation as merely “additional52 forms of expression and presentation” and subjected to additional requirements (Art. 35).53 Graphic presentations must not only be scientifically sound in every respect, 48 Regulation (EU) of the European Parliament and of the Council on the provision of food information to consumers, amending Regulations (EC) No 1924/2006 and (EC) No 1925/2006 of the European Parliament and of the Council, OJ L 304/18–63 (2011). 49 Regulation (EU) of the European Parliament and of the Council on the provision of food information to consumers, amending Regulations (EC) No 1924/2006 and (EC) No 1925/2006 of the European Parliament and of the Council, OJ L 304/18–63 (2011), para. 1 of the preamble. 50 Regulation (EU) of the European Parliament and of the Council on the provision of food information to consumers, amending Regulations (EC) No 1924/2006 and (EC) No 1925/2006 of the European Parliament and of the Council, OJ L 304/18–63 (2011), paras. 10, 37 of the preamble. 51 Regulation (EU) of the European Parliament and of the Council on the provision of food information to consumers, amending Regulations (EC) No 1924/2006 and (EC) No 1925/2006 of the European Parliament and of the Council, OJ L 304/18–63 (2011), Art. 9 § 1 (b) and (1). See also Art. 18 (List of Ingredients) and Art. 30 (Nutrition declaration/Content). 52 Pictograms and symbols may only be used additionally, the general principle being that mandatory information must be given in words and numbers (Regulation (EU) of the European Parliament and of the Council on the provision of food information to consumers, amending Regulations (EC) No 1924/2006 and (EC) No 1925/2006 of the European Parliament and of the Council, OJ L 304/18–63 (2011), Art. 34, Annex XV). See Commission notice on questions and answers on the application of Regulation (EU) of the European Parliament and of the Council on the provision of food information to consumers, OJ C 196/1–14 (2018), sub. 3.5.1. 53 Outside Art. 35 there are still the options of providing voluntary information (Art. 36 FIC Regulation) and making nutrition claims in accordance with European Parliament and Council Regulation (EC) on nutrition and health claims made on foods, OJ L 404/9–25 (2006).

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nor mislead or confuse the consumers, nor have a discriminatory character. Most interesting, however, is the fact that Member States are prohibited from making graphic presentations compulsory under their own law (Art. 35 § 2).54 This could be related to the fact that the effects of graphic systems on consumers and public health have not yet been sufficiently researched.55 Rather, the EU Member States are still experimenting with several models such as, in particular, the Nordic Keyhole scheme (introduced by Sweden as early as 1989), the UK’s FOP labelling [“traffic light”] scheme (2013), the French Nutri-Score Scheme (2017), as well as private operators’ schemes such as, for example, the “Reference Intakes Label”, the “Evolved Nutrition Label” and the “Healthy Choice logo”.56 A lack of sufficient feedback on experiences has prevented the Commission from submitting its report by 13 December 2017 (Art. 35 § 5). One of the main tasks of the Commission will be to clarify the advisability of further harmonisation of the various forms of expression and presentation (Art. 35 § 5). This will also include whether the various schemes are compatible with European and International (WTO) law.57 A current comparative study of all common FOP labelling models also identifies a need for further research and decision-making. None of the models can comprehensively solve the tasks that arise (e.g., giving indications for a balanced diet; addressing different groups). In view of the voluntary nature of the labelling system, a genuine comparison for consumers is also not possible. However, it is considered important to make a decision in favour of a uniform model, whereby the consumers surveyed were most likely in favour of the Nutri Score model.58 As far as implementation is concerned, the United Kingdom has made the leap with its FOP labelling scheme (“traffic light model”), which represents an “additional form of presentation” in the sense of Art. 35 of the FIC Regulation. As early as 2013 the UK Department of Health together with the Food Standards Agency

54

Regulation (EU) of the European Parliament and of the Council on the provision of food information to consumers, amending Regulations (EC) No 1924/2006 and (EC) No 1925/2006 of the European Parliament and of the Council, OJ L 304/18–63 (2011), Art. 35 § 2 reads: “Member States may recommend to food business operators the use of one or more additional forms of expression or presentation . . .” It can be derived from the formulation (“may recommend”, “additional”) that the Member States are prevented from mandatory forms of action. 55 See the references in Regulation (EU) of the European Parliament and of the Council on the provision of food information to consumers, amending Regulations (EC) No 1924/2006 and (EC) No 1925/2006 of the European Parliament and of the Council, OJ L 304/18–63 (2011), Art. 35, relating to the exchange of information between the Member States, business operators, and the Commission. See also Art. 35 § 4 of the Regulation relating to a report to be submitted “in the light of the experience gained” by the Commission. 56 Commission – Health and Food Safety Directorate-General. 2018. Minutes of the Joint meeting on front-of-pack nutrition labelling between Working Group of the Standing Committee on Plants, Animals, Food and Feed -Regulation (EU) on the provision of food information to consumers (FIC) & Advisory Group on the Food chain, Animal and Plant Health (2018), at 3–5 (sub. 2.2 and 2.3). . 57 Holle et al. (2014), pp. 148–160. 58 Max Rubner Institut. (August 2019).

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published the first version of the “Guide to creating a front of pack (FoP) nutrition label for pre-packed products sold through retail outlets”. The explicit aim of this guidance has been to “suppor[t] the development of front of pack nutrition labels that are compliant with the UK Health Ministers’ recommendation on the use of colour coding as an additional form of expression and with EU Regulation No. 1169/2011 on the provision of food information to consumers (EU FIC)”.59 According to the FoP nutrition label guide (additional) graphical information has to be displayed either by one white label relating to energy only, or by five labels displaying the amounts of energy as well as those of fat, saturated fat, sugars (total sugars) and salt. The labels on fat, saturated fat, sugars and salt indicate the respective contents per 100 g/100 ml, per portion or both (Art. 32, 33 Regulation [EU] No. 1169/2011) in the recommended format of red, amber and green colour-coding.60 Although repeating (additional) nutritional information, in accordance with Art. 35 § 2 of the EU Food Information Regulation, is voluntary in the UK, most of the major supermarkets and many food manufacturers seem to provide FOP nutrition colour coding.61 Colour coding has advantages and disadvantages. On the one hand, it allows people to compare foods to make a healthier choice. The method is easy to understand for everyone, and neither confusing nor time consuming (“easy legibility”). Additionally, FOP labels have a potential to positively influence food composition with a view to reformulation. On the other hand, colour coding appears to be too coarse because some types of food like fruit, for example, have a high sugar content but are still healthy. In addition, informed choice can be difficult, if the traffic light panel has all colours. Therefore, it seems helpful to consider the experiences made in the UK. The following particularly interesting findings should be highlighted: • Any red label provoked further investigation in more detailed nutrition information and more than 2 reds lead to category trading where possible. • Consumers reacted to seeing less reds more strongly than seeing more greens. • Consumers balance sign posting with more general knowledge and are willing to accept more reds in some product categories such as, e.g., ice-cream, fat spreads, snacks, desserts, dairy, confectionery. • Multiple FoP labels on the market were confusing (‘information overload’). • Consumers did not view a red FoP label as ‘stop’. • 26% of people said that they used colour coded FoP labels for help on healthy eating. 74% of those concerned about being overweight agree that having

59

Department of Health and Food Standards Agency. 19 June 2013, updated Nov. 2016. Guide to creating a front of pack (FoP) nutrition label for pre-packed products sold through retail outlets. . 60 Red means high (unhealthy), amber means medium (neither healthy nor unhealthy, eatable most of the time), and green means low (healthy). What deserves to be classified as red, amber or green, is also explicated by the guidelines, in accordance with Regulation (EU) on nutrition and health claims, OJ L 404/9–25 (2006). 61 British Nutrition Foundation (2019). (acceded on 17 September 2019).

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nutritional information presented in the same way on all food and drink would make healthier choices easier. • Research has shown that the use of consistent FoP labelling across as many food products as possible will help consumers to become familiar with its format, and to use it to balance their diet and control their energy intake.62 On the one hand, these examples show that colour coding seem to unfold effects. On the other hand, these effects are quite different in the respective context. In addition, voluntary guidelines may bias consumers’ perception, because they do not require labels on all packages.63 This is why a discussion has started in the UK on whether the colour coding scheme should be made mandatory after the Brexit.64 Not only in Europe, but also globally, there is a very clear tendency to introduce and expand FOP nutrition labelling systems.65 Although more and more research is being done into their effects, there are still major gaps in knowledge. E.g., evidence of the real life impact of mandatory FOP nutrition schemes on consumer behaviour and industry reformulation is very limited, because mandatory regulations are rather rare (e.g., Chile, Ecuador). As the potential impact of FOP nutrition labelling on reducing nutrition inequalities is uncertain, it is important to evaluate the ability of FOP nutrition labelling schemes to effectively communicate information to different target groups.66

3.2

“Fat Taxes” and the Like

Another approach lies in the taxation of excessive energy, sugar or salt contents. It is about a tax steering measure with a tendency towards repression. Most widely used are SSB (sugar-sweetened beverage) taxes. This is an excise tax of about 10–20% on beverages with added caloric sugar in a defined quantity. Such taxes exist in several Pacific island states, Caribbean states, Chile, Mauritius, Mexico, South Africa, some

62

Department of Health (Skotarenko, Liliya) (2018). The UK’s Voluntary Front of Pack Nutrition Labelling Scheme. Joint meeting on front-of-pack nutrition labelling (23rd April 2018), Files 10–14. . 63 Kanter et al. (2018), p. 1406. 64 Smithers (2018). UK urged to make ‘traffic light’ food labelling mandatory. The Guardian. June 20. 65 Also to the following: Kanter et al. (2018). 66 Kanter et al. (2018). See also European Commission’s science and knowledge service – Joint Research Centre (Storcksdieck, Stefan, et al.) (2018). Update on ongoing JRC study – Overview of existing and proposed FOP schemes, including literature review of research regarding the development of the schemes, their impact on consumers and other effects; Joint meeting on front-of-pack nutrition labelling between Working Group of the Standing Committee on Plants, Animals, Food and Feed - Regulation (EU) No. 1169/2011 on the provision of food information to consumers (FIC) & Advisory Group on the Food chain, Animal and Plant Health (2018).

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U.S. cities such as Berkeley, but also in EU states such as Hungary (2011) and Portugal (2016/17).67 The Mexican SSB tax (approx. 10%) became famous, because it reduced consumption by a total of 12% within the first year and even by 17% for low-income households.68 Also commonly used is the so-called “fat tax”, which taxes the proportion of saturates in solid foods or foods with a high calorie content. For example, Mexico has introduced a “penalty tax” of 8% on high-calorie foods (i.e. more than 275 calories/100 g).69 Other countries have followed this path, too. In Europe, Hungary, for example, has a tax on individual processed foods with high sugar, salt and caffeine content, whereas Finland and Norway have a confectionery tax.70 The Danish fat tax, however, was abolished after only 15 months until the end of 2012,71 because it was widely undermined by cross-border shopping in nearby Germany. The example shows that national initiatives such as the levying of special excise duties are not a successful model within the framework of the European internal market. In general, however, taxes on fat and sugar are on the rise because they lead to a measurable decline in sales figures for foods containing too many calories, provided that certain conditions are met.72

3.3

Can Nutritional Behaviour Be Influenced by Government Measures?

The experiences with FOP Nutrition Labelling and Fat Taxes confirm on the one hand a fundamental relationship between the presentation of food or the cost of food and the actual calorie intake. On the other hand, there are still many uncertainties about the effects in detail. The previous attempts to influence the dietary behaviour of the population via FOP Nutrition Labelling and Fat Taxes show considerable differences among members of different social groups and in relation to different categories of food. Obviously, we are still in a phase of experimentation that is far from complete. Unclear effects, however, complicate the introduction of mandatory regulation and, without mandatory regulation, the effects become even more obscure as labelled and unlabelled foods compete for consumers’ favour. The ambiguities associated with the combat against overweight correspond with the complexity of its causes. As shown before, we should be calling it a “complex, multifactorial disorder”, which includes genetic (and possibly other) predisposition,

67

Backhholer et al. (2016), pp. 3057–3061. Backhholer et al. (2016), p. 3057. 69 Ley del Impuesto Especial sobre Producción y Servicios of 15 November 2016. 70 For details and further references see Deutscher Bundestag – Wissenschaftliche Dienste. (2015), pp. 14–17. 71 Lov om afgift af mættet fedt i visse fødevarer (fedtafgiftsloven). LOV nr. 247 af 30/03/2011 (Historisk). . 72 Backhholer et al. (2016), pp. 3057, 3059–3060. 68

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obesogenic environmental factors and personal behaviour to a still unclear extent and interaction. The complexity of the causes is also reflected in the area of measuring effects of countermeasures, whereas these countermeasures themselves must not be complicated in order to reach as many consumers as possible. Notwithstanding this unclear and difficult situation, we cannot go so far as to cast doubt on the fundamental appropriateness of the measures, because all in all positive effects can be observed.

3.4

Self-Responsibility and State (EU) Responsibility for the Prevention of Overweight

Given the complexity of the causes it is difficult to assess the question of what (co-) responsibility the states and the EU bear for the overweight of ever larger sections of the population. In this context the FOP Nutrition Labelling appears in a different light than the Fat Taxes. While the aim of the EU FIC Regulation is to enable consumers to make an “informed choice” in relation to food, the “fat tax” relies on pure deterrence over the purse. As experience from the past has shown, food producing companies tend to conceal excessive levels of sugar and fat in their products. For reasons of taste, many consumers prefer highly sweetened foods or foods with an “optimal” fat-carbohydrate ratio.73 At the same time, however, they do not want to consciously nourish themselves with unhealthy food. The knowledge of high sugar and fat contents can at least prevent some of them from buying and consuming it. Basically, it is not a public task to regulate the nutritional behaviour of individuals. In a free society, there rather is a fundamental right to eat wrongly and unhealthily at one’s own discretion, as there is no freedom without the protection of personal autonomy.74 This follows in the state sphere from fundamental rights such as, for example, general freedom of action,75 in the area of application of European law from the right to respect for privacy (Art. 7 FRC; Art. 8 ECHR76). On the other hand, the EU and its Member States are also obliged to protect health (with a further look at the associated reduction in social security costs). Art. 35 sentence 1 FRC guarantees, among others, the right of access to preventive health care. Art. 35 sentence 2 FRC obliges the institutions to ensure a “high level of human health 73

Supra 2.3. Cf. Singer (1959), pp. 202–205; Cholbi (2015), pp. 851–853; Oderberg (2000), pp. 517–537; Herstein (2012), pp. 343–365. 75 See on the right to harm oneself, e.g., the practice of the German Constitutional Court: Entscheidungen des Bundesverfassungsgerichts (BVerfGE) 59, 275 (at 278)—helmet obligation; 90, 145 (at 171)—cannabis consumption; BVerfG, Neue Juristische Wochenschrift (NJW) 1987, 180 (at 180)—mandatory use of seat belts; BVerfG, NJW 1999, 3399 (3401)—organ removal; BVerfG NJW 2012, 1062 (at 1063)—solar studio. 76 See generally, from a theoretical point of view, Kolliniati (2019), pp. 206 et seq. 74

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protection”. Both obligations bind all institutions of the Union when defining and implementing the policies and measures of the Union as well as the Member States when implementing Union law (Art. 51 FRC). While Art. 35 sentence 2 FRC takes over Art. 168 para. 1 TFEU, Art. 35 sentence 1 FRC is based on Art. 11 and 13 of the European Social Charter.77 Accordingly, Art. 35 sentence 1 FRC (access to preventive health care and medical care) is regarded as a genuine fundamental right, whereas sentence 2 (ensuring a high level of health protection) is intended to set objectives in the sense of an optimisation requirement.78 Does Art. 35 have any consequences in terms of obligations to combat overweight or its causes? The term “health care” in Art. 35 sentence 1 FRC is understood in accordance with Art. 11 § 3 of the European Social Charter to mean that it requires preventive measures that prevent or limit diseases. Overweight has been shown to increase the likelihood of getting certain diseases. Especially children are at risk. In principle, however, different forms of combating overweight can be considered, so that even from the fundamental rights part of Art. 35 FRC (i.e. sentence 1) it is generally not possible to derive specific obligations for the EU and its member states. In addition, there is in principle the freedom to eat at one’s own discretion. A special situation arises, however, when the individual cannot make an informed decision, either because the information on the food packaging is incorrect, incomplete or misleading, or because the examination of the ingredients is so timeconsuming that it cannot be expected of normal consumers in the stress of shopping. One can therefore come to the conclusion that the disclosure of the ingredients of food and the simple and fast accessibility and comprehensibility of such information are minimum requirements for the individual to be able to inform his or her body weight and influence it in a self-determined way. The binding objective in Art. 35 sentence 2 FRC must also be interpreted accordingly: The objective of ensuring a high level of human health requires the EU and its Member States, as a minimum, to protect consumers from the deceptions and misconceptions associated with the promotional presentation of food packaging in order to prevent them from becoming overweight and, consequently, from contracting diseases. This is all the more true as the high level of human health shall be “ensured” and not merely aimed at. The same follows from the states’ triple obligation to generally “respect, protect and ensure” human rights.79 Of course, the Charter of Fundamental Rights does not establish any particular method of nudging or even repression to be applied. Rather, the EU and the Member States enjoy a wide margin of appreciation in this respect, provided that the fundamental objective—ensuring the ability to make self-determined decisions about one’s own diet in order to preserve one’s health—is met.

77

See Explanations relating to the Charter of Fundamental Rights, OJ (EU), C 303/17 (2007), p. 27. Krajewski (2017), Art. 35 GrCh (FRC), M.N. 5, 17, with further references. 79 Karp (2015), pp. 137–158. 78

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4 Discrimination on Grounds of Overweight: Key Issues 4.1

Suitability of the Concept of Discrimination in the Light of Existing Legislation

Notwithstanding the many possibilities to define “discrimination”,80 discrimination can be defined here as a qualified form of unequal treatment of persons who belong to different groups but are in a comparable situation. A person is discriminated against if he or she is treated unfavourably or disadvantaged in a legally relevant way compared to others, because • the treatment is linked to a “critical” (forbidden) feature which may not be linked to, or only exceptionally (special prohibitions of discrimination), or • the treatment is linked to a feature which may be considered an “other status of discrimination” (open clause on discrimination), or • there is no reasonable ground for differentiation on the basis of this feature (general prohibition of discrimination). Discrimination is thus linked to the fact that a certain characteristic of a person is used as an occasion for his or her disadvantageous treatment in comparison with others. The underlying consideration is that it is unfair and unjust to link disadvantages to such criteria. As can be derived from Art. 21 FRC, the following criteria are considered relevant (critical) in European fundamental rights law today: sex, “race”, colour, ethnic or social origin, genetic features, language, religion or belief, political or any other opinion, membership of a national minority, property, birth, disability, age, sexual orientation and (EU) nationality. It is apparent that “genetic features” and “disability” deserve specific consideration in our context. The question will be whether overweight and particularly obesity represent a subset of these categories of discrimination.81 Additionally, Art. 14 of the European Convention on Human Rights (ECHR) prohibits discrimination on grounds of any “other status”, whereas it is not fully clear whether Art. 21 FRC can be interpreted accordingly open.82 A general prohibition of discrimination is enshrined in Art. 20 FRC (equality before the law) and also recognized as a general principle of law in the sense of Art. 6 § 3 of the Treaty on European Union (TEU).83 If discrimination represents the legal equivalent to social stigmatisation, it becomes immediately apparent that overweight discrimination has a raison d’être. As has been shown, overweight people become victims of negative stigmatisation to a considerable extent. The stigmatising effect lies in the fact that the individual is inevitably treated as a fictitious person corresponding to the average value for a 80

See, e.g., Radcliffe Richards (1985), pp. 53–83. See infra 4.2. 82 See infra 4.3. 83 See infra 4.4. Protocol No. 12 to the ECHR (cf. Art. 6 § 3 TEU), which contains a general prohibition of discrimination in Art. 1, is not ratified by all EU Member States. 81

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group.84 Weight discrimination is characterised by the fact that a person has the characteristic “overweight”, is therefore perceived as part of a “collective of overweight people” and is subject to (pre-)judgments relating to this group. Some authors speak convincingly of “statistical discrimination”, a concept that reflects attitudes based on statistically (more or less) founded expectations concerning the skills, physical fitness and productivity of obese men and women: Employers, for example, use obesity as a marker for demanded skills. Physical fitness, which is likely to be related to productivity, health, and demanded personality traits, will be signaled through obesity status.85 The discrimination problem results from the fact that the individual very often does not conform to these generalized expectations. However, the question of discrimination also arises if an obese individual is subjected to special measures to clarify the risk that is statistically elevated in the group of obese persons. This is because a specific need for clarification, which is not required for persons of normal weight, entails a disadvantage that is linked solely to group membership. On the other hand, there may be a legitimate interest in excluding a statistically increased risk in a specific case. What ultimately matters in this context is how the legislator assesses the link to the group characteristic in question. The comparison of obesity with genetic disposition86 is particularly important here, because the latter involves a statistically increased disease risks as is the case with overweight (obesity). Yet obesity is unavoidably exposed, while the genome is hidden from the outside world. Although overweight discrimination has long been the subject of a vigorous “fat rights” movement as well as doctrine,87 it has so far hardly become visible in legislation. A notable exception in this respect is the so-called Elliott Larson Act of the U.S. State of Michigan of 1976, which in the field of labour law prohibits hiring and firing “for reasons of religion, race, color, national origin, age, sex, height, weight, or marital status”.88 There is nothing comparable in European law. History shows, however, that not all discrimination criteria arose at the same time. Rather, criteria such as “age”, “disability”, “sexual orientation” or “genetic features” came up in the framework of younger layers of legal development. The determination of frowned criteria is therefore not a question of irrevocably established fundamental ideas of justice, but rather reveals a tendency to extend the number of critical criteria successively, which is underlined by the existence of open clauses relating to any “other status” of discrimination such as Art. 14 ECHR and, possibly, Art. 21 FRC. The fact that new criteria of discrimination have been recognized in the past and can be recognized in the future also justifies the assumption that extensions

84

Supra 2.5. Lundborg et al. (2010), pp. 3, 7, 22. 86 Infra 4.2.3. 87 Sokkar Harker (2015). 88 Elliott-Larsen Civil Rights Act 453 of 1976, available at: . See, in particular, introduction and Art. 2 (37.2202: Employer; prohibited practices; exceptions) relating to Section 202 (1) (b). 85

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of the catalogue of critical criteria are based on pragmatic rather than idealistic reasons. This becomes particularly clear with the inclusion of the “age” in the catalogue of the disapproved criteria, for here a connection with the simultaneously occurring problem of ageing societies, namely the shortage of the workforce, seems obvious. However, the basic approach applies to all new criteria: the fewer individuals are excluded from productive participation on the basis of blanket judgements, the more the state and society benefit. Discrimination on grounds of weight has already been addressed as “the last legally allowed form of discrimination”.89 But the fact that it is not explicitly mentioned in the prohibitions of discrimination does not necessarily mean that it is permitted.

4.2

Is Overweight (Obesity) Covered by Specific Grounds of Discrimination?

4.2.1

Can Overweight Be Considered a Disease, and Does Disease Constitute a Ground of Discrimination?

Apparently, the notion of “disease” does not fall explicitly under the specific criteria of discrimination listed in Art. 10 TFEU, Art. 21 FRC or Art. 14 ECHR.90 It would actually make sense to first consider whether overweight could be a disability, for example, because this ground of discrimination is explicitly mentioned in European anti-discrimination law. Legal practice, however, has laid the foundations with regard to cases of disease which have become decisive for the further handling of the issue of overweight and obesity. This is connected with the fact that the transition between “disease” and “disability” may sometimes seem fluent, so that the transition from being disadvantaged on grounds of disease to being disadvantaged on grounds of disability can also be fluent. A crucial question for European anti-discrimination law is, therefore, what constitutes “only” illness and what constitutes “disability”. But the question of the presence of a disease is also extremely important in itself, because only if a certain condition meets the requirements of a disease do those affected have a claim against their health insurance company for reimbursement of those costs, which are necessary to effectively combat obesity (e.g., by gastric band or bariatric bypass operations), even if secondary illnesses have not yet occurred. On the other hand, access to employment and occupation can be made dramatically more difficult if overweight (obesity) were generally to be regarded as a disease. Equating obesity with disease would therefore have a double character from the outset.

89 90

Kirkland (2003), p. 24. Infra.

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The Connection Between Overweight and “Disease” in the Framework of WHO Standards

A “disease” is any harmful deviation from the normal structural or functional state of an organism, generally associated with certain signs and symptoms and differing in nature from physical injury.91 It can express itself in a functional impairment or disfiguring effect. To put it simply, disease is the counter term to health, whereby both categories cannot be sharply distinguished from each other. From a statistical point of view it is unhealthy to be overweight. As, among others, the MELANY long-term study has revealed being overweight (obese) increases the risk of developing certain secondary diseases.92 However, the increase in risk cannot be assumed in general terms and not equally for all forms of obesity. With increasing BMI the occurrence of diseases becomes more likely, with decreasing BMI the connection becomes increasingly unclear. While “adiposity” (obesity III grade) has usually not been considered a disease in its own right in clinical everyday life, it is explicitly listed in the classification code of the World Health Organization (WHO), the so-called ICD code (currently ICD-10 of 2016),93 under “Endocrine, nutritional and metabolic diseases” (Chapter IV, E 66). In addition, other forms of “hyperalimentation” or overeating (e.g., binge eating disorder) are included under E67 and E68. The new version of the WHO classification system (ICD-11) of 2018 even considers “overweight, obesity or specific nutrient excesses” in Chapter 5. Subtitle 5B80 relates to “overweight or localised adiposity”, whereby “overweight” is defined by a BMI ranging from 25.00 to 29.99 kg/m2 and “localized adiposity” a condition characterized by accumulation of adipose tissue in specific regions of the body.94 This means that in the future, certain forms of overweight even below adiposity (obesity III grade) will be classified as a disease per se by the WHO. Legal practice lags behind the development of WHO standards. State courts usually deal with the question of whether the social security system has to pay for certain bariatric operations. Against this background, the perspective concentrates on the question of whether at least extreme forms of overweight must be regarded as a “disease” requiring medical treatment. E.g., in Germany, the Saxon State Social Court ruled in 2014 that obesity III grade (BMI 40 and more) is to be considered a disease.95 In addition, overweight plays a role when it comes to employment, especially in the public sector, where physical fitness is essential, such as in the 91

Burrows and Scarpelli (2019). Supra 2.4, with references. 93 International Statistical Classification of Diseases and Related Health Problems (International Code of Diseases). Currently, 10. Revision (2016). ICD-10 Version: 2016. ICD-11 was released as of 18 June 2018 in order to begin preparations for implementation in the WHO Member States. Both versions are available at . 94 ICD-11 for Mortality and Morbidity Statistics (Version 04/2019). See note 93. 95 Sächsisches Landessozialgericht, judgment of 16 January 2014, case no. L 1 KR 229/10. Attainable at: juris (fee-based legal portal). . 92

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police service.96 As the classification as a disease is concerned, such case practice97 will probably have to be adapted to the new WHO standards in the future.

4.2.1.2

The Distinction Between “Disease” (Sickness) and “Disability” in General: ECJ in Chacón Navas (2006) and HK Danmark (2013)

European law lacks case practice in which the classification of overweight as a “disease” was directly relevant. There is, however, case law of the European Court of Justice on the question of how the terms “disease” and “disability” relate to each other in general. In the case of Sonia Chacón Navas98 the ECJ made fundamental statements on the question of whether a disease can possibly also be regarded as a disability in the sense of European anti-discrimination law. The affected employee was not overweight, but was dismissed due to frequent absences due to illness. She could only have invoked discrimination if her illness had at the same time fulfilled the requirements for disability. The ECJ found that by using the concept of “disability” in Art. 1 of directive 2000/78,99 the legislature deliberately chose a term which differs from “sickness”. The two concepts could not therefore simply be treated as being the same. It pointed out that “no provision of the EC Treaty prohibits discrimination on grounds of sickness as such”, and even though Community (EU) law also includes the general principle of non-discrimination, this would not be sufficient to enrich the Directive accordingly. In the Court’s view it does not follow from the general principle of non-discrimination “that the scope of Directive 2000/78 should be extended by analogy beyond the discrimination based on the grounds listed exhaustively in Article 1 thereof”.100 This reasoning of the ECJ does not appear to be unreasonable at first sight. If there is inconsistency, it rather lies at the previous level of legislation. This means that the legislator created secondary law that privileges some grounds of discrimination in comparison to others. In the case of HK Danmark (2013), the ECJ specified when a disease could exceptionally also be regarded as a disability. It concluded that if a curable or incurable illness entails a limitation which results in particular from physical, mental or psychological impairments which in interaction with various barriers may hinder the full and effective participation of the person concerned in professional life on an equal

96 See, e.g., on the German practice Higher Administrative Court of North Rhine-Westphalia (Germany), decision of 17 February 2014, case no. 6 A 1552/12. Attainable at: juris (fee-based legal portal). . 97 For more details see Richter (2015b), pp. 169–174. 98 Case C-13/05, Sonia Chacón Navas v Eurest Colectividades SA (ECJ 11 July 2006). 99 Council Directive 2000/78/EC establishing a general framework for equal treatment in employment and occupation, OJ L 303/16–22 (2000). 100 Case C-13/05, Sonia Chacón Navas v Eurest Colectividades SA (ECJ 11 July 2006), paras. 43, 54 and 56. Accordingly, Case C-303/06, Coleman v Attridge Law and Steve Law (ECJ 17 July 2008), para. 46.

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basis with other workers, and the limitation is a long-term one, such an illness can be covered by the concept of ‘disability’ within the meaning of Directive 2000/78.101

Apparently, the ECJ, in the context of the Directive, relates to the concept of “limitation” for the determination of a disability. Its definition thus differs from that of the WHO, which instead uses the term of “impairment”.102

4.2.2 4.2.2.1

Is Obesity a “Disability”? The Notion and Concept of “Disability”

According to Art. 19 (1) TFEU and Art. 21 FRC “disability” constitutes a ground of discrimination under European law. The question arises on whether at least serious forms of overweight (obesity) can be considered a “disability”. With regard to WHO standards, disabilities is an umbrella term, covering impairments, activity limitations, and participation restrictions. An impairment is considered a problem in body function or structure; an activity limitation is a difficulty encountered by an individual in executing a task or action; while a participation restriction is a problem experienced by an individual in involvement in life situations.103 With this understanding the WHO makes it very clear that disability is “not just a health problem” but rather a complex phenomenon, reflecting the interaction between features of a person’s body and features of the society in which he or she lives. The latter element has become increasingly important, so that today a bio-psycho-social view prevails, which recognizes in disability less the deviation from the norm than the impairment by social barriers or the interaction between the health problem and the participation possibilities of the person concerned. The same approach informs the U.N. Convention on the Rights of Persons with Disabilities (CRPD),104 which in its Preamble characterizes disability as an “evolving concept” resulting from the interaction between person with impairments and attitudinal and environmental barriers that hinders full and effective participation in society. Unlike disease, disability does not as a rule require medical treatment, even outside those cases that cannot be treated. In some cases, even a minor deviation from the physical or mental “regular” condition, which subjectively does not affect the person concerned at all or not significantly, can lead to a situation, where he or she is exposed to social barriers and thus disabled by the environment. Disability must therefore largely be understood as a consequence of social construction.

101

In Case C-335/11 and Case C-337/11, (joined), 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 (ECJ 11 April 2013), para. 41. 102 See supra 4.2.1.1. 103 WHO (2019). Health Topics: Disabilities. . 104 Convention on the Rights of Persons with Disabilities (2006). UNTS, vol. 2515, p. 3.

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In addition, the concept of disability requires that the above conditions be fulfilled over a longer period of time. In this respect, Art. 1 al. 2 CRPD clarifies that “persons with disabilities include those who have long term physical, mental, intellectual or sensory impairments which in interaction with various barriers may hinder their full and effective participation in society on an equal basis with others.” A long-term impairment is also required by the European Court of Justice with regard to the European concept of disability.105 As the requirement of a long-term impairment has to be interpreted autonomously, it remains independent of any divergent classification under national law.106 The long-term nature of a disability serves as a means of differentiation from the concept of “illness”, in which durability does not play any role. Whereas some diseases can lead to disability, disability as such has no disease potential—which is beneficial for the integration of people with disabilities in employment and occupation.

4.2.2.2

The Relationship Between “Disease” and “Disability” in Obesity Cases: ECJ in Kaltoft (2014) and Ruiz Conejero (2018)

In the Danish case of Karsten Kaltoft the ECJ clarified whether obesity is a disability and falls under the protection of EU fundamental rights in the framework of Art. 6 TEU and Directive 2000/78/EC.107 Mr Kaltoft worked as a day care worker for children at Billund Municipality for about 15 years. Throughout this time he was obese according to the WHO classification code. When one of the day care workers had to be dismissed for operational reasons, Mr Kaltoft was met without being given any reasons to choose him. He then sued the municipality for damages, arguing that he had been the victim of “discrimination on the grounds of obesity”. First of all, the referring court wanted to know whether Union law contained “a general prohibition of discrimination on the grounds of obesity as such in employment and occupation”. This question, which the ECJ clearly denied, implicitly addresses the essential question of whether the matter falls within the scope of application of Union law or in the sphere of competence of the Union at all. At first glance, the issue is employment and occupation, and thus within the scope of Directive 2000/78/EC. But that alone is not sufficient. The ECJ by no means disputes the existence and binding authority of a general prohibition of discrimination within Union law, including in relation to the Member States. However, it also demanded that the prohibition of discrimination in connection with employment and occupation extends precisely to discrimination on the grounds of obesity. According to the 105

Infra 4.2.2.2. See, with special regard to the Council Directive 2000/78 establishing a general framework for equal treatment in employment and occupation, OJ L 303/16–22 (2000), Case C-395/15, Mohamed Daouidi v Bootes Plus SL et al (ECJ 1 December 2016), paras. 50–52. 107 Case C-354/13, Fag og Arbejde (FOG), acting for Karsten Kaltoft v Kommunernes Landsforening (KL), acting on behalf of the Municipality of Billund (ECJ 18 December 2014). For a comment see Richter (2015a). 106

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Court, this requirement is already lacking at the level of the European Treaties, because neither Art. 10 nor Art. 19 TFEU “makes reference to obesity”. As regards more specifically Article 19 TFEU, the Court explicated that this article contains only the rules governing the competencies of the EU and that, since it does not refer to discrimination on grounds of obesity as such, it cannot constitute a legal basis for measures of the Council of the European Union to combat such discrimination. Accordingly, such a prohibition was also to be expected non-existent at the secondary law level. Nevertheless, the court specifically emphasised in this respect that Directive 2000/78 “does not mention obesity as a ground for discrimination”. It thereby confirmed its case-law in the case of Chacón Navas,108 according to which “the scope of Directive 2000/78 should not be extended by analogy beyond the discrimination based on the grounds listed exhaustively in Article 1 thereof”. Consequently, the Court concluded that dismissal for obesity does not fall within the scope of Union law, so that the Charter of Fundamental Rights does not apply either.109 Only in the second place did the question arise as to whether an employee’s obesity falls under the notion of disability in the sense of the Directive 2000/78 and what requirements should be placed on it. The ECJ affirmed that possibility in principle by referring to the ratification by the European Union of the United Nations Convention on the Rights of Persons with Disabilities. It clarified that it would run counter to the very aim of the Directive, which is to implement equal treatment, to define its scope by reference to the origin of the disability or to make the concept of ‘disability’ dependent on the extent to which the person may or may not have contributed to the onset of his or her disability. However, the Court reiterated that obesity does not in itself constitute a ‘disability’ within the meaning of Directive 2000/78, “on the ground that, by its nature, it does not necessarily entail the existence of a limitation”. Therefore, it would be crucial whether the obesity of the employee in the specific case entails a limitation which results in particular from physical, mental or psychological impairments that in interaction with various barriers may hinder the full and effective participation of that person in professional life on an equal basis with other workers, and the limitation is a long-term one.

Such would be the case, in particular, if the obesity of the worker hindered his full and effective participation in professional life on an equal basis with other workers on account of reduced mobility or the onset, in that person, of medical conditions preventing him from carrying out his work or causing discomfort when carrying out his professional activity.

108

Supra 4.2.1.2. Case C-354/13, Fag og Arbejde (FOG), acting for Karsten Kaltoft v Kommunernes Landsforening (KL), acting on behalf of the Municipality of Billund (ECJ 18 December 2014), paras. 32–38, referring to Chacón Navas (note 98) and Coleman (note 100).

109

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Only under these circumstances can obesity constitute a disability within the meaning of Directive 2000/78, which has to be ascertained by the referring court.110 The problem with this description does not lie so much in the use of the term ‘limitation’, although this term, in contrast to the term ‘impairment’, evokes the association of insurmountable limitations of performance much more strongly.111 Rather, it lies in the examples used by the ECJ, which show that its understanding of disability is neither that of WHO nor that of the UN Convention on the Rights of Persons with Disabilities. It is said that obesity then turns into a state of disability, “in particular, if the obesity of the worker hindered his full and effective participation in professional life on an equal basis with other workers on account of reduced mobility or the onset, in that person, of medical conditions preventing him from carrying out his work or causing discomfort when carrying out his professional activity”. But actually this description takes up prejudices that obese persons would be immobile and feel discomfort with physical activities. As can be clearly seen from Art. 1 al. 2 CRPD, the issue is not—as the ECJ suggests—whether immobility hinders participation, but whether social barriers hinder it. Although the ECJ of all things refers to the UN Convention, it has escaped its notice that it is not necessarily a question of a “failure” of the person with a disability (here obesity), but that a deviation from the norm without a loss of function can also constitute a ‘disability’ if it leads to prejudices and thus to the raising of social barriers.112 Even taking into account that EU legislature attaches particular importance to measures for adapting the workplace,113 the ECJ narrows the concept of disability, particularly through its unfortunate choice of examples, so that it can have a negative impact on the employment of people with disabilities. The fact that, unlike the UN Convention, the Directive 2000/78 has a special focus on employment and occupation, cannot explain either why disability should only be present in the case of “underperformance”, especially as the ECJ itself refers to the CRPD standards. As a consequence of the “deficit understanding” of disability by the ECJ, obese people must present themselves as being only able to work to a limited extent. E.g., Mr Kaltoft must explain to the Danish courts that, because of his obesity, he had only “limited” use in his profession. This ultimately leads to a contradiction in assessment because only those people benefit from protection against discrimination, while

110

Case C-354/13, Fag og Arbejde (FOG), acting for Karsten Kaltoft v Kommunernes Landsforening (KL), acting on behalf of the Municipality of Billund (ECJ 18 December 2014), paras. 50–62, with reference to HK Danmark (note 101), as well as Case C-363/12, Z v A Government department et al (ECJ 18 March 2014). 111 According to Merriam-Webster ‘impairment’ means either the act of impairing something or the state or condition of being impaired, i.e. showing diminishment or loss of function or ability, whereas a ‘limitation’ is an act or instance of limiting, the quality or state of being limited, or something that limits (restraints). See Merriam-Webster Dictionary (2020). Available at: . 112 Supra 4.2.2.1. 113 Case C-395/15, Mohamed Daouidi v Bootes Plus SL et al (ECJ 1 December 2016), para. 54; Case C-13/05, Sonia Chacón Navas v Eurest Colectividades SA (ECJ 11 July 2006), para. 45.

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moderately overweight people with no limitations, who give even less cause to discriminate against them, enjoy no protection.114 The ECJ further developed its jurisprudence in the Ruiz Conejero case (2018)115 concerning an employee who had been dismissed because he was frequently absent. The absenteeism was due to secondary illnesses that had aggravated due to obesity. With regard to these diseases, the competent authority recognised his disability. The degree of his incapacity was set at 37%, of which 32% related to physical disability, characterised by disease of the endocrine-metabolic system (obesity) and functional limitation of the spine. So it was a case dealing with illness “related to disability”. The ECJ had to decide on whether Art. 2 (2) (b) of Directive 2000/78 must be interpreted as precluding national legislation which provides that an employer may dismiss a worker on the grounds of certain intermittent absences from work, even in a situation where those absences are the consequence of illnesses attributed to that worker’s disability. Though the Court reiterated its settled case-law, according to which “the concepts of ‘disability’ and ‘sickness’ cannot simply be treated as being the same”,116 it was more open to the close relation between illness and disability. Its basic consideration was: It should be noted in that respect that a worker with a disability is, in principle, more exposed to the risk of being dismissed . . . than a worker without a disability. Compared with such a worker, a worker with a disability has the additional risk of being absent by reason of an illness connected with his disability. He thus runs a greater risk of accumulating days of absence because of illness, . . . It is thus apparent that the rule in that [national] provision is liable to place disabled workers at a disadvantage and so to bring about a difference of treatment indirectly based on disability within the meaning of Article 2 (2) (b) of Directive 2000/78 . . .117

The ECJ found that it was for the referring court to examine whether the national legislature omitted to take account of relevant factors relating, in particular, to workers with disabilities, who generally face greater difficulties than persons without disabilities. Thereby it seemed to consider the possibility of excluding absenteeism due to disability from the counting of days absent, because it specifically pointed out that the national law excluded absenteeism, e.g. due to the treatment of cancer diseases.118 However, it came to the conclusion: . . . that Article 2 (2) (b) (i) of Directive 2000/78 must be interpreted as precluding national legislation under which an employer may dismiss a worker on the grounds of his intermittent absences from work, even if justified, in a situation where those absences are the

114

See already Richter (2015a), Prohibition of discrimination on the grounds of obesity? ECJ ruling of 18.12.2014 in Case C-354/13 – Fag og Arbejde (FOA), acting for Karsten Kaltoft. Jean-MonnetSaar: Europarecht online. . 115 Case C-270/16, Carlos Enrique Ruiz Conejero v Ferroser Servicios Auxiliares SA und Ministerio Fiscal (ECJ 18 January 2018). 116 ECJ (note 115), para. 38—Ruiz Conejero. 117 ECJ (note 115), para. 39—Ruiz Conejero. 118 Cf. ECJ (note 115), paras. 50–52—Ruiz Conejero.

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consequence of sickness attributable to a disability suffered by that worker, unless that legislation, while pursuing the legitimate aim of combating absenteeism, does not go beyond what is necessary in order to achieve that aim, which is a matter for the referring court to assess.119

Thus the ECJ leaves the problem to a proportionality test by the state judiciary. On the one hand, this is a consequence of the assumption that there may be only indirect discrimination on the basis of disability within the meaning of Article 2 (2) (b) of Directive 2000/78. On the other hand, it is by no means ruled out that sick leaves which are essentially caused by disability may ultimately lead to dismissal, provided that the disability was taken into account and the dismissal appears necessary to combat absenteeism.

4.2.3

The Potential Relevance of the Criterion of “Genetic Disposition”

According to Art. 21 FRC any discrimination based on “genetic features” shall be prohibited. As we have seen above, overweight is also partly due to genetic disposition, although the details have not yet been fully clarified.120 One might therefore think that obesity could at least under certain circumstances fall under the criterion “genetic features”. However, some authors take the view that only the genetic disposition itself, but not its mere external manifestation, were excluded as a connecting factor for unequal treatment. Therefore, the criterion of “genetic features” would offer no protection against discrimination on the basis of body size, for example, although this is strongly influenced by genetic disposition.121 Accordingly, overweight would also be a mere external manifestation not being covered by the criterion of “genetic features”. However, this restrictive interpretation is not shared unanimously.122 It seems reasonable in its basic approach, because otherwise properties such as “gender” or so-called “race” would also fall under the “genetic features”. But such an interpretation can lead to the effect that the criterion would be limited to “invisible” genetic features, whereas protection against discrimination on the basis of visibly expressed genetic features would generally be excluded on the basis of visibility. This is not convincing. Therefore, it is necessary to look at the object and purpose of protection against discrimination based on genetic features. In this respect it is partly argued that the prohibition of discrimination takes account of the fact that genetic features are uninfluenceable by their respective carriers, that their predictive character is uncertain, that they involve particularly sensitive health information, and that stigmatisation is imminent.123 Such descriptions, however, place the question of influenceability in the foreground

119

ECJ (note 115), para. 57—Ruiz Conejero. Supra 2.3. 121 Classen (2015), p. 139 (at 143), with further reference. 122 See, e.g., for the German discussion Vossenkuhl (2013), pp. 85–86. 123 Classen (2015), pp. 140–142. 120

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as if there were a question of guilt. But it is likewise possible, for example, to influence the adoption of a new religious affiliation or marital status without this rendering protection against discrimination inapplicable. Therefore, the purpose of protection against discrimination must not be overloaded with the subjective element of self-accountability but rather be limited to protecting members of certain groups from blanket prejudice and exclusion on grounds of a certain criterion as being selected by legislature (or by jurisprudence in the case of open clauses).124 Yet, a case of genetic disposition must, in principle, be suitable for assigning someone to a particular genetic group which is of such a nature that it is probable that disadvantages will be associated with it. With this approach it could be ensured that only those genetic features would be covered by the protection against discrimination which can be regarded (even erroneously) as a deviation from the “regular spectrum” of possible genetic features, i.e. which are susceptible to stigmatisation and discrimination—irrespective of whether or not the relevant predispositions become visible to the outside world or not. In addition, however, it must also be asked whether the disadvantage is essentially linked to the genetic disposition or exclusively linked to external characteristics. If one applies this standard to the genetic predisposition for overweight, one comes to the conclusion that such a genetic predisposition can indeed produce a special group whose members can become victims of discrimination. The first problem, however, is that genetic predisposition regularly does not lead to the development of overweight alone. There may therefore be people who have the same disposition but who do not become overweight and are therefore not discriminated against. Only if, in individual cases, it can be regarded as highly probable that a certain genetic disposition in almost any case leads to overweight, does the disadvantage due to overweight at the same time link to the genetic features, just as, for example, the discrimination against mothers always includes the discrimination against women, because the group of mothers is a subgroup of women. However, the second problem remains, which is that discrimination on the grounds of overweight is targeted at external appearance and assigns the overweight person a life-style guilt without any further knowledge. As has been shown, however, such prejudices disappear as soon as test persons are told that a health disorder was the cause.125 The same would apply to a genetic disorder. This means that overweight people are not disadvantaged because their genome has caused their condition or is considered to have done so, but on the contrary, those who disadvantage overweight people are unaware that the genome may have played a role. That is why discrimination on the basis of genetic features is mostly ruled out in the case of overweight. This is not the case, however, if, for example, an insurance company becomes aware of a genetic predisposition to overweight and this leads to discrimination, regardless of whether the overweight has manifested itself externally

124 125

For more information on this see infra 4.3.3. Supra 2.5.

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or not. It must therefore be asked in each individual case whether there is a sufficient connection between discrimination and genetic features.

4.3 4.3.1

Is Overweight Covered by Open Clauses on Discrimination? Is Art. 21 FRC an Open Clause at All?

Unlike Art. 14 ECHR, Art. 21 FRC does not mention any “other status”. It reads instead: “Any discrimination based on any ground such as . . . shall be prohibited”.126 Is that enough to open the norm to further grounds of discrimination beyond those expressly mentioned, e.g., to overweight? It is particularly striking that the inclusion of the “other status” was avoided in the formulation of Art. 21 FRC, although corresponding prototypes (e.g., Art. 14 ECHR) were known. The wording chosen leaves it unclear whether only each of the following criteria should be relevant or whether they are only mentioned as examples. However, the materials on the history of origin can be considered to support the interpretation as an open norm, even though the explanation on Art. 21 FRC only states that paragraph 1 “draws on” a couple of norms including Art. 14 ECHR and that “[in] so far as this corresponds to Article 14 of the ECHR, it applies in compliance with it”,127 thereby referring to Art. 52 § 3 FRC without answering the underlying question. Doctrine usually pleads for openness without further difficulty.128 In any case, the importance of the question is alleviated by the fact that the Charter of Fundamental Rights—unlike the ECHR (except for the 12th Additional Protocol)—also contains a general principle of equality before the law in Art. 20.

4.3.2

“Other Status” in the Sense of Art. 14 ECHR

In European law, the ECHR continues to be a legal source for establishing European fundamental rights beyond the Charter of Fundamental Rights. Within Union law, ECHR rights are regarded as general legal principles with primary legal status (Art. 6 § 3 TEU). In case of doubt, the rights of the Charter of Fundamental Rights are to be interpreted in accordance with the rights of the ECHR (Art. 52 § 3 FRC), which also includes the case law of the European Court of Human Rights. Undoubtedly, the criterion of “other status” laid down in Art. 14 ECHR makes this provision an open norm in which the dynamic character of the Convention is once further expressed. To date, the Strasbourg case-law has recognised a number of unnamed features as

126

Emphasis by the author. Explanations relating to the Charter of Fundamental Rights, OJ C-303 (2007), p. 17. 128 See, e.g., Kilpatrick (2014). MN 21.43, 591. 127

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“other status”. These include disability, age, sexual orientation, nationality, various health impairments such as HIV infection,129 but also genetic features, marital status, relationship, parentship, and even professional status, residence status, prisoner status or membership in an association.130 It is partly assumed that the European Court of Human Rights (only) recognises those personal characteristics which are innate or immutable to an individual, or which are particularly close to the individual personality.131 This seems to be supported by the fact that in some decisions the Court chooses the term of ”personal” or “identifying” characteristics.132 However, other authors rightly point out that the Court also considers behavioural or even factual distinctions to be relevant under certain circumstances. Such cases of “other status” therefore do not automatically fall outside the protection of the prohibition of discrimination, but merely lead to a lowering of the requirements for the justification of unfavourable treatment, respectively a wider margin of appreciation on the part of the Convention states.133 Whether overweight is an “other status” within the meaning of Art. 14 ECHR has not yet been decided. Art. 14 ECHR presupposes as merely accessory law that the case affects another Convention right. Here in particular Article 8 ECHR (right to respect for private life) comes into consideration, which guarantees the development and realisation of the personality of the individual. This also includes the right to self—determination over one’s own body. This prohibits the state from giving individuals a certain norm weight. If disadvantages are linked to overweight, this is a case of Art. 8 in connection with Art. 14 ECHR, since the latter prohibits discrimination on the basis of “other status”. It is most likely that the Strasbourg Court would recognize overweight as such a status, as it has already recognised that “a physical disability and various health impairments fall within the scope of this provision”.134 The above-mentioned case-law mainly refers to discrimination on the grounds of HIV infection, irrespective of whether the complainant has contracted it “innocently” or through his or her careless behaviour. Nothing else can apply to the overweight characteristic.

Grabenwarter and Pabel (2016), § 26, MN 27–34, pp. 645 et seq. with references to court practice. 130 Peters and König (2nd ed. 2013), Chapter 21 MN 21, 194–216, with references to court practice. 131 Grabenwarter and Pabel (2016), § 26 MN 27, p. 645. 132 Application no. 28135/95, Magee v the UK (ECtHR 6 June 2000), para. 50; Application no. 43134/05, G.N and others v. Italy (ECtHR 1 December 2009), para. 116; Application no. 42184/05, Carson and Others v the UK (ECtHR 4 November 2008), para. 73. 133 Peters and König (2nd ed. 2013), Chapter 21 MN 21, with references to court practice. 134 Application no. 2700/10, Kiyutin v Russia (ECtHR 10 March 2011), para. 57, with further references. 129

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Similarity and Comparability of the Overweight Criterion with Existing Criteria of Discrimination

If one compares overweight with conventional discrimination criteria, differences seem to be apparent: In contrast to the criteria “ethnicity” or “minority”, for example, weight does not primarily concern membership to a group with a specific identity. Society does not want to preserve and promote overweight as a positive component of its diversity, but on the contrary wants to contain it. In contrast to cases concerning skin colour, mother tongue, birth, genetic features, etc., one is not inevitably born into obesity, but ultimately leads it by oneself, notwithstanding genetic and other influences, through excessive food intake. Whereas religious belief relates to the unnegotiable fundamentals of human personality, weight remains in the outer sphere of corporality. However, if one considers more closely the great diversity of the recognised criteria in relation to each other, such differences do not really appear to be significant, not to mention the fact that the causes of eating compulsion are anyway too complex to speak of guilty self-damaging behaviour.135 For example, the prohibition of discrimination based on political opinion does not depend on whether the opinion is socially acceptable or even reasonable. Accordingly, the prohibition of discrimination on the grounds of disability applies regardless of the fact that disability is not in itself considered positive and worth preserving, and that persons concerned benefit from it even if they themselves have caused their disability (e.g. paraplegia) through risky behaviour. As we have seen, the European Court of Human Rights equates various “health impairments” with disability within the framework of Art. 14 ECHR.136 It would therefore be inappropriate to subject the grounds of discrimination to usefulness or respectability considerations, such as the protection of specific identities or respect for unalterable and innocently acquired handicaps. Rather, discrimination criteria serve to exclude discrimination on the basis of blanket prejudices, regardless of how the peculiarity that the discrimination is linked to originated. A special necessity to achieve this links them all and also includes the criterion of overweight. If the overweight were indeed due to individual misconduct, the requirements for a justification of differentiating (unfavourable) treatment could be lowered in line with the case law of the European Court of Human Rights.137 Exactly this, however, cannot be assumed with certainty in any case, because the causes of disturbances of the feeling of satiety are anything but clarified.

135

See already Richter (2015b), pp. 175–176. Supra 4.3.2. 137 The less the person himself can influence the characteristic in question, the stricter the requirements for justification are, provided that a differentiation is made on the basis of such a criterion, and vice versa. Supra 4.3.2. 136

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329

Applicability of the General Principle of Non-discrimination

Art. 20 FRC guarantees in accordance with a previously applicable general principle138 equality before the law. According to the case law of the ECJ, 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”.139 However, this general principle of equal treatment is only applicable if specific prohibitions of discrimination do not apply.140 A further requirement is that the Charter of Fundamental Rights is applicable at all (Art. 51 § 1 FRC). However, the ECJ denies exactly this with respect to Art. 20 FRC—as accordingly with respect to Art. 21 FRC141—unless the different treatment in question is specifically addressed by secondary (or primary law) EU law.142 In so doing, it attempts to invalidate the allegation that the Union’s competences are being extended at the expense of the Member States by means of a review based on fundamental rights (cf. Art. 51 § 2 FRC). E.g., in the Vino case the ECJ ruled that a difference in treatment between fixed-term workers and permanent workers was prohibited by secondary legislation, whereas a difference of treatment between specific categories of fixed-term workers was not specifically regulated at Union level and, thus, was found not to be capable of review against the principle of non-discrimination.143 In the case of overweight discrimination, this results in the following: The content of Art. 20 FRC could be relevant. First and foremost, cases should be considered in which obese applicants for a job are not considered because they are generally supposed to be physically unfit, immobile or particularly susceptible to secondary diseases. If it concerns only lighter forms of overweight, which do not necessarily entail illness, or if the physical fitness plays no role at all for the job concerned, it appears quite doubtful whether “such treatment is objectively justified”. However, the persons concerned have no chance of claiming prohibited discrimination because the relevant secondary legislation (in particular, Directive 2000/78 on equal treatment in employment and occupation) has clarified the grounds for possible discrimination and, in the ECJ’s view, does not in principle cover overweight cases.

138

Explanations relating to the Charter of Fundamental Rights, OJ C-303 (2007), 17. Explanation on Art. 20 FRC, with further references. 139 Case C-303/05, Advocaten voor de Werelt VZW v Leden van de Ministerraad (ECJ 3 May 2007), para. 56 (together with para. 46). With special regard to Art. 20 FRC: Case C-21/10, Károly Nagy v Mezőgazdasági és Vidékfejlesztési Hivatal (ECJ 21 July 2011), para. 47. 140 Martin (2019). Art. 20 CFR, MN 4, 2162 (with further reference). 141 Supra 4.2.1.2. (ECJ in Chacón Navas). 142 Martin (2019). Art. 20 CFR, MN 5. 143 Example taken from Martin (2019). Art. 20 CFR, MN 5, with reference to ECJ, C-161/11—Vino, and other cases.

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5 Conclusions Overweight is only on the outside “brought about by oneself”. In fact, excessive food intake resulting in a continuous energy surplus causes weight gain. The causes for this process, especially for the disturbed feeling of satiety, are however complex and in individual cases more or less genetically pre-programmed. In addition, there are obesogenic framework factors such as, e.g., the aggressive advertising of highcalorie food, which falls on fertile soil, especially among consumers with a low level of education. Science speaks of a “myth of controllability”, and much remains to be clarified. However, a state that does not regulate the misleading presentation and marketing of high-calorie foods will not live up to its positive obligation to health protection in the face of an epidemic of overweight and obesity. EU law (Regulation [EU] No. 1169/2011) suffers from the problem that, in view of the fact that FOP labelling requirements on the part of the Member States are still outstanding in terms of effectiveness research, it only permits them in an optional form and thus weakens their effectiveness. Against this background, the question must be answered as to whether overweight (obesity) is a possible ground for discrimination. As has been shown, the WHO recognises obesity as a disease in the current ICD code, but also “normal” overweight with respect to the future ICD code, regardless of whether secondary diseases have yet occurred or not. However, sickness does not belong to the classical grounds of discrimination, but can at best be covered by an open clause on discrimination (Art. 14 ECHR and, possibly, Art. 21 FRC) or the general principle of equality (Art. 20 FRC, 12th Protocol Additional to ECHR). Obesity can rather exceptionally fulfil the requirements of a “disability”. The same applies to the criterion of “genetic features”, since here there must be a special connection between the respective disadvantageous treatment and the genetic disposition. However, there is no plausible reason not to recognise overweight as other status on the basis of which discrimination is not permitted. This applies in particular in view of the fact that the European Court of Human Rights has declared “health impairments” to be relevant as other status within the framework of Art. 14 ECHR. The particular vulnerability of the members of the group of overweight people who exhibit a certain feature triggering stigmatization and increasing susceptibility to exclusion must be emphasized at this point. Special problems arise where a matter falls within the scope of secondary legislation, in particular Directive 2000/78. In the Kaltoft case, the ECJ ruled that Directive 2000/78/EC must be interpreted as meaning that the obesity of a worker constitutes a “disability” where it entails a “limitation” resulting in particular from long-term impairments which in interaction with various barriers may hinder the full and effective participation of the person concerned in professional life. In the case of Ruiz Conejero, this case law was further developed for the case of “sickness attributable to a disability”. However, in deviation from the WHO and U.N. Convention standards, the ECJ focuses on the limited functional capacity of people with disabilities. Its jurisprudence is based on a “deficit understanding” of

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disability and even employs prejudices when presenting obese persons with a resulting disability as employees, who are prevented from carrying out work or feel discomfort when doing so. The greatest problem, however, occurs where obesity does not fall exceptionally under the category of disability, but only under disease, and the matter lies within the scope of secondary legislation, namely Directive (EC) No. 2000/78 on equal treatment in employment and occupation. Already in the case of Chacón Navas (2006), the ECJ had clarified that Art. 1 of the Directive distinguishes between “disability” and “sickness” (disease) in a purposeful manner, and that “no provision of the EC Treaty prohibits discrimination on grounds of sickness” (nor overweight). Even though fundamental rights, including the general principle of equality, were reconfirmed as an integral part of European law, Directive 2000/78 was not considered open to any extension by analogy beyond the grounds listed in Art. 1 thereof. The ECJ regarded this as a question of lack of competence of the EU (Art. 19 TFEU), bearing the consequence that such a matter does not lie within the scope of application of EU law so that the Charter of Fundamental Rights will not be applicable (Art. 51 § 2 FRC). As a result, cases in which EU anti-discrimination law is applied in the purely domestic area of application within individual Member States on the basis of secondary legislation—such as in the case of Kaltoft—are handled differently from cases with cross-border implications. In the purely domestic area of application an “autonomous prohibition” of discrimination on the basis of Art. 19 TFEU in conjunction with secondary law applies. Secondary law prohibitions of discrimination must then be strictly interpreted with regard to listed criteria. Only if obesity fulfils the criteria of “disability”, a prohibition of discrimination applies by virtue of Directive (EC) No. 2000/78. In cases with cross-border implications, on the other hand, the Internal Market freedoms and thus EU fundamental rights apply: Art. 21 FRC and Art. 14 ECHR can be considered applicable covering discriminating treatment on grounds of overweight and obesity. This distinction can be seen as a plausible consequence of the principle of individual authorisation under Union law, which above all ties the effects of EU law on the individual Member States to the requirement of a special allocation of competences to the Union. But yet one can ask whether the anti-discrimination law of the EU does not suffer at this point from a conflict of valuation. The root of the problem lies in the fact that Art. 19 TFEU only permits secondary law to combat discrimination on grounds of sex, so-called “race”, ethnic origin, religion or belief, disability, age or sexual orientation, and that the secondary law in question, depending on the willingness of the Member States to reach agreement in the Council, lists or does not list certain criteria rather arbitrarily. This happens irrespective of the fact that Art. 19 TFEU is to be interpreted in accordance with Art. 8 TFEU.144 Thus, the human rights promise of non-discrimination within the scope of secondary harmonisation is transformed into a mere option that requires

144

Klamert (2019), Art. 8 TFEU MN 2, p. 383.

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explicit reconfirmation in secondary law, whereby secondary law can lag behind what the competence situation actually provides. The absurd consequence of this legal situation is that only overweight persons who are at the same time attested a disability, which the ECJ wrongly combines with limited fitness for work, benefit from secondary law. On the other hand, those overweight persons who are disadvantaged solely because of their appearance, i.e. in a particularly unfounded way, enjoy no protection whatsoever under EU law. The power of the epidemic should, however, be thought-provoking at all levels. It is not enough to curb food containing sugar and fat through transparency provisions or other measures. It is no less necessary to effectively protect overweight people against stereotypical forms of discrimination. The ageing populations of Europe cannot afford to further marginalise this growing group under the pressure of demographic change.145

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Richter, Dagmar. 2015a. Prohibition of discrimination on the grounds of obesity? ECJ ruling of 18.12.2014 in case C-354/13 – Fag og Arbejde (FOA), acting for Karsten Kaltoft. Jean-MonnetSaar: Europarecht online. . ———. 2015b. Übergewicht – ein neues Kriterium der Diskriminierung? [Overweight – A New Criterion of Discrimination?]. In Diskriminierung aufgrund der Gesundheit in alternden Gesellschaften, ed. Claus Dieter Classen, Bernard Łukańko, and Dagmar Richter, 155–181. Berlin: Berliner Wissenschafts-Verlag. Sassi, Franco. 2010. Obesity and the Economics of Prevention – Fit Not Fat. OECD Publishing, at 29. . Schafer, Markus H., and Kenneth F. Ferraro. 2011. The Stigma of Obesity: Does Perceived Weight Discrimination Affect Identity and Physical Health? Social Psychology Quarterly 74: 76. Schag, Kathrin, J. Schönleber, et al. 2013. Food-Related, Impulsivity in Obesity and Binge Eating Disorder – A Systematic Review. Obesity Reviews 14: 477–495. https://doi.org/10.1111/obr. 12017. Singer, Marcus G. 1959. On Duties to Oneself. Ethics 69: 202–205. Smithers, Rebecca. 2018. UK urged to make ‘traffic light’ food labelling mandatory. The Guardian. June 20. . Sokkar Harker, Yasmin. 2015. Fat Rights and Fat Discrimination: An Annotated Bibliography. CUNY (City University of New York) Academic Works. Sonntag, Diana, and Sven Schneider. 2015. Gesundheitsökonomische Folgen der Adipositas. In Handbuch Essstörungen und Adipositas, ed. Herpertz Stephan, Zwaan Martina, and Zipfel Stephan, 379–387. Berlin, Heidelberg: Springer Nature. Swinburn, Boyd, Egger Garry, and Fezeela Raza. 1999. Dissecting Obesogenic Environments: The Development and Application of a Framework for Identifying and Prioritizing Environmental Intervention for Obesity. Preventive Medicine 29: 563–570. Szyf, Moshe. 2013. How Do Environments Talk to Genes? Nature Neuroscience 16: 2–4. Tirosh, Amir, Iris Shai, Dorit Tekes-Manova, et al. 2005. Normal Fasting Plasma Glucose Levels and Type 2 Diabetes in Young Men. New England Journal of Medicine 353: 1454–1462. ———. 2011. Normal Fasting Plasma Glucose Levels and Type 2 Diabetes in Young Men. New England Journal of Medicine 364: 1315–1325. Ulijaszek, Stanley J., and Hanley Lofink. 2006. Obesity in Biocultural Perspective. Annual Review of Anthropology 35: 337–360. https://doi.org/10.1146/annurev.anthro.35.081705.123301. Van de Wouw, Marcel, Harriët Schellekens, Timothy G. Dinan, and John F. Cryan. 2017. Microbiota-Gut-Brain Axis: Modulator of Host Metabolism and Appetite. The Journal of Nutrition 147: 727–745. Vossenkuhl, Cosima. 2013. Der Schutz genetischer Daten. Berlin, Heidelberg: Springer Verlag. Wang, Lucy. 2008. Weight Discrimination: One Size Fits All Remedy? Yale Law Journal 117: 1900–1945 (at 1906–1907). WHO. 2004. Global Strategy on Diet, Physical Activity and Health. . ———. 2013a. Global Action Plan for the Prevention and Control of Noncommunicable Diseases, 2013–2020. . ———. 2013b. Joint FAO/WHO workshop on Front-of-Pack Nutrition Labelling. . ———. 2015. Technical meeting on nutrition labelling for promoting healthy diets. . ———. 2016. Report of the Commission on Ending Childhood Obesity. . ———. 2019. Health Topics: Body Mass Index. .

Non-ideal Weight Discrimination in EU Law Tamara Hervey and Christa Tobler

Contents 1 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 Protections in EU Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 Non-ideal Weight Discrimination as Disability Discrimination . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.1 Status of UN CRPD in EU Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.2 Has CJEU Recognized the ‘Social Model’ Approach to Interpretation of EU Equality Legislation? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 The Social Approach to Disability Discrimination as Applied to ‘Non-ideal Weight’ Discrimination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 Conclusions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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Abstract Consistent evidence from across European jurisdictions and beyond shows persistent patterns of discrimination against people of ‘non-ideal weight’. But ‘non-ideal weight’ is not a forbidden ground of discrimination in EU law. That said, the CJEU’s jurisprudence can be said to reflect an acceptance of the social model of the UN CRPD, as a ‘general principle’ of EU law. If this is accepted, then disability discrimination in EU law must be understood as a limitation which springs from impairments which, in interaction with various attitudinal and environmental barriers, may hinder the full and effective participation of the person concerned in professional life. For people of ‘non-ideal weight’, it is the interaction of those

We are grateful to the participants in the Jean Monnet Symposium on The European Union as a Protector and Promoter of Equality, European Academy of Otzenhausen 29–30 March 2019. T. Hervey (*) School of Law, University of Sheffield, Sheffield, UK e-mail: t.hervey@sheffield.ac.uk C. Tobler Europa Institute of Leiden University, Leiden, The Netherlands Institute for European Global Studies, University of Basel, Basel, Switzerland e-mail: [email protected] © Springer Nature Switzerland AG 2020 T. Giegerich (ed.), The European Union as Protector and Promoter of Equality, European Union and its Neighbours in a Globalized World 1, https://doi.org/10.1007/978-3-030-43764-0_17

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attitudinal and environmental barriers with their physical characteristics (for instance, an assumption that overweight people lack motivation or self-discipline) that leads to discriminatory behaviour. Thus, where discrimination against persons of non-ideal weight falls within the scope of EU law, this can be challenged as unlawful. Finally, we note the scope for Member States to take action against such discrimination where they retain competence to do so.

1 Introduction Consistent evidence from across European jurisdictions and beyond shows persistent patterns of discrimination against people of ‘non-ideal weight’.1 ‘Non-ideal weight’ here predominantly means overweight, and clinically obese, but discrimination can also apply to people who are severely underweight. People who are outside the ‘norm’ in terms of weight have lower than average annual earnings, even when we control for other factors such as gender, ethnicity and social class.2 Weight is relevant in hiring decisions, so it is harder for people of ‘non-ideal weight’ to enter the labour market or to progress within it. And patterns of discrimination also exist in other contexts in public and private life, for instance in access to goods and services, including—perhaps most shamefully—health and social care.

2 Protections in EU Law ‘Non-ideal weight’ is not a forbidden ground of discrimination in EU law. It is not explicitly covered in the Treaties, the EU’s Charter of Fundamental Rights, or any of the EU’s equality and non-discrimination legislation. Some Member States (for example, France3) protect people from discrimination in some contexts on grounds of physical appearance. This would include appearing to be of ‘non-ideal weight’. But EU law does not explicitly offer such protection. However, EU law does prohibit unjustified discrimination on grounds of disability. This aspect of EU equality law might offer a possible protection to those who suffer from discrimination on account of their weight.

1

See, for instance, Jackson et al. (2015), pp. 858–864; Xing and Sierminska (2014); Caliendo and Lee (2013), pp. 121–133; Puhl and Heuer (2009), pp. 941–964; Baum and Ford (2004), pp. 885–899; Cawley (2004), pp. 451–474; Pagan and Dávila (1997), pp. 756–770; Hamermesh and Biddle (1994), pp. 1174–1194. 2 See the sources cited in Hervey and Rostant (2016), pp. 248–282, ftns 3–6 and 9. 3 France’s Labour Code Art L 112-45. For discussion, see Burri and Prechal (2009), pp. 215–247; Laulom (2009), pp. 279–294.

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3 Non-ideal Weight Discrimination as Disability Discrimination How might non-ideal weight discrimination fall within the concept of disability discrimination? Being over (or under) weight is not in itself a disability or an illness. If we adopt a ‘medical model’4 to determine disability discrimination, then this will preclude an approach that brings non-ideal weight discrimination within EU law. However, if we adopt a ‘social model’ of disability discrimination, then we can conceptualise non-ideal weight discrimination differently. The social model maintains that it is society’s interactions with the person that creates the disability, not an a-contextually understood impairment of that person. Just as the failure to adapt the external physical environment (classically, for providing ramps for wheelchair access) interacts with the position of someone who cannot walk unaided, and creates the disability, so do the unconscious bias, unjustified attitudinal assumptions and negative inferences made about people of ‘non-ideal weight’ interact with the position of those people in society. It is the unconscious and harmful assumptions and inferences (for instance that overweight people are insufficiently self-motivated to make good employees) that—in interaction with the physical qualities of the person concerned—create the disability. The social model is associated with the UN Convention on the Rights of Persons with Disabilities (UN CRPD).5 The definition of ‘disability’ in Article 1 UN CRPD covers: . . . those who have long-term physical, mental, intellectual or sensory impairments which, in interaction with various barriers, may hinder their full and effective participation in society on an equal basis with others. (italics added).

That the UN CRPD adopts a social model of disability that includes unconscious bias, unjustified attitudinal assumptions and negative inferences is supported by paragraph (e) of the preamble which recognises that: disability results from the interaction between persons with impairments and attitudinal and environmental barriers that hinders their full and effective participation in society on an equal basis with others. (italics added)

The EU Council approved the UN CRPD in 2010, making it the first international human rights treaty to which the EU has become a contracting party.6 It is a ‘mixed agreement’, to which both the EU and its Member States are parties.

4

See World Health Organisation’s International Classification of Impairments Disabilities and Handicaps (ICIDH) 1980, Section 3, Classification of Disabilities, p. 143. 5 See, e.g., Lawson (2008), p. 30; O’Cinneide (2009); Collingbourne (2012), pp. 84, 87–88. For a description of the groundbreaking process by which the UNCRD came to be drafted, including the involvement of people with disability and NGOs, see Collingbourne (2012), pp. 59–70. 6 Council Decision 2010/48/EC concerning the conclusion, by the European Community, of the United Nations Convention on the Rights of Persons with Disabilities OJ L 23/35 (2010).

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To be clear: We are making a conditional argument here. If—and only if—the EU can be said to have adopted a ‘social model’ of disability discrimination, this could offer protection to people of ‘non-ideal weight’ in EU law.

3.1

Status of UN CRPD in EU Law

From the date of its entry into force, the UN CRPD became an ‘integral part of the European Union legal order’.7 Within the hierarchy of this legal order, international agreements concluded by the European Union enjoy primacy over the EU’s secondary law. Accordingly, the latter must be in conformity with the former. This leads to a duty of consistent interpretation of the Union secondary law with the international agreement.8 Indeed, the Court has expressly confirmed that Directive 2000/789 must be interpreted consistently with the UN CRPD.10 This duty applies to the CJEU itself when exercising its jurisdiction, including under the preliminary reference procedure. The CJEU has jurisdiction over mixed agreements.11 The duty also applies to national courts when interpreting domestic law which implements EU legal obligations, including those found in Directives, which is where most of EU non-discrimination law is enacted. Further, the UN CRPD is a source of ‘general principles’ in EU law. These general principles underpin and are integral to all of the EU’s legal order.12 They include certain fundamental rights.13 In discerning these fundamental rights which are integral general principles of EU law, the CJEU considers national constitutional traditions, but also international human rights treaties, including the ECHR and the UN CRPD.14 Finally, the EU’s own Charter of Fundamental Rights (CFR), which

7

See Case 181/73, Haegeman v Belgium (ECJ 30 April 1974), ECLI:EU:C:1974:41, para. 5. Case 61/94, Commission v Germany (ECJ 11 July 1960), ECLI:EU:C:1996:313, para. 52. 9 Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation, OJ L 303/16 (2000). 10 Case C-363/12, Z v A Government department, The Board of management of a community school (ECJ 18 March 2014), ECLI:EU:C:2014:159, para. 72. 11 See, e.g., Case C-53/96, Hermes International v FHT Marketing Choice BV (ECJ 16 June 1998), ECLI:EU:C:1998:292, para. 28 and 29. 12 For example, the general principles of proportionality (see e.g. Case 11/70, Internationale Handelsgesellschaft mbH v Einfuhr- und Vorratsstelle für Getreide und Futtermittel (ECJ 17 December 1970), ECLI:EU:C:1970:114) and legitimate expectations (see e.g. Joined Cases C-37/02 and C-38/02, Di Lenardo and Dilexport (ECJ 15 July 2004), ECLI:EU:C:2004:443). 13 See Case 11/70, Internationale Handelsgesellschaft mbH v Einfuhr- und Vorratsstelle für Getreide und Futtermittel (ECJ 17 October 1970), ECLI:EU:C:1970:114. 14 See Joined Cases C-335/11 and C-337/11, HK Danmark, acting on behalf of Ring v Dansk Almennyttigt Boligselskab; HK Damark, acting on behalf of Werege v Dansk Arbejdsgiverforening, acting on behalf of Pro Display A/S (ECJ 13 April 2013), ECLI:EU:C:2013:222. 8

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now has ‘the same legal value as the Treaties’ (Art. 6(1) TEU)15 embodies a number of general principles of EU law, among them non-discrimination on grounds of a disability (Art. 21 CFR). General principles of EU law have important effects in domestic law. In particular, they bind the Member States when they act within the scope of EU law.16 Although the general rule is that general principles do not displace EU legislation, in Mangold17 the CJEU held that the prohibitions of discrimination in Directive 2000/ 78 flow from the general principles to which the Directive gives expression in the specific domain of employment. More recent case law shows that general principles, as embodied in provisions of the Charter of Fundamental Rights, can be relied on by individuals in horizontal situations, if they are sufficient in themselves to confer rights on individuals, i.e. if they are mandatory in nature and unconditional, the latter meaning that the do not need to be given concrete expression by the provisions of EU or national law (Bauer and Broßonn,18 with references notably to Egenberger).19 Further, general principles such as articulated in Art. 21 CFR can serve as a benchmark for the validity of EU secondary law. However, the same is not true for the provisions of the UN CRPD, as they “are subject, in their implementation or their effects, to the adoption of subsequent acts of the contracting parties” (Glatzel, para 69). Within the scope of EU law, however, it can be argued that the UN CRPD’s approach to disability discrimination, based on a ‘social model’, is to be applied as a ‘general principle’ of EU law when interpreting EU law. This interpretation of the place of the UN CRPD in the EU legal order, which it can be argued follows from the case law of the CJEU as outlined above, has also been recognised by at least one national constitutional court (the Italian Constitutional court).20

15

See Lenaerts and Gutiėrrez-Fons (2014), pp. 1559–1593. Case C-617/10, Åklagaren v Hans Åkerberg Fransson (ECJ 26 February 2013), ECLI:EU: C:2013:105. See, for instance, Case C-427/06, Birgit Bartsch v Bosch und Siemens Hausgeräte (BSH) Altersfürsorge GmbH (ECJ 23 September 2008), ECLI:EU:C:2008:517, where the matter was held to fall outside the scope of EU law. See further Dougan (2015), pp. 2101–2145. 17 Case C-144/04, Werner Mangold v Rüdiger Helm (ECJ 22 November 2005), ECLI:EU: C:2005:709. 18 Joined Cases C-569/16 and 570/16, Stadt Wuppertal v Maria Elisabeth Bauer (Case 569/16) and Volker Willmeroth, in his capacity as owner of TWI Technische Wartung und Instandsetzung Volker Willmeroth e.K. v Martina Broßonn (Case 570/16) (ECJ 6 November 2018), ECLI:EU:C:2018:871. 19 Case C-414/16, Vera Egenberger v Evangelisches Werk für Diakonie und Entwicklung eV (ECJ 17 April 2018), ECLI:EU:C:2018:257. 20 Italian Constitutional Court Judgment 236/2012 http://www.giurcost.org/decisioni/2012/0236s12.html, see Ferri (2019). 16

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Has CJEU Recognized the ‘Social Model’ Approach to Interpretation of EU Equality Legislation?

It is one thing to say that the UN CRPD’s social model can be argued to be applicable in the EU legal order; it is quite another to say that this argument has been accepted. Before 2010, it was clear, indeed, that this was not the case. In its 2006 decision in Chacón Navas v Eurest Colectividades SA,21 although its Advocate General referred expressly to both the medical and social models,22 the CJEU held that the concept of ‘disability’ in Directive 2000/78: must be understood as referring to a limitation which results in particular from physical mental or psychological impairments which hinders the participation of a person in professional life.23

But after 2010, a series of CJEU rulings,24 beginning with HK Danmark/Ring/ Skouboe Werge, could be interpreted to indicate that the CJEU adopted the UN CRPD’s social model in its approach to defining disability in EU law. The CJEU uses variations on the following formulation, found in paragraph 38 of Ring: The concept of disability must be understood as referring to a limitation which results in particular from physical, mental or psychological impairments which in interaction with various barriers may hinder the full and effective participation of the person concerned in professional life on an equal basis with other workers. (Italics added)

It is not, however, entirely clear how to interpret this approach. Should we focus on the ‘physical, mental or psychological impairments’, which suggests a medical model? Or should we focus on the ‘interaction with various barriers’ which ‘hinder full and effective participation’? And if the latter, what kind of barriers does the CJEU mean: physical ones, or social and attitudinal ones? The literature is divided on the matter. Several authors note the equivocation of the CJEU’s reasoning, drawing attention to the distinctions between the language the CJEU uses, and the way in which it 21

Case C-13/05, Sonia Chacón Navas v Eurest Colectividades SA (ECJ 11 July 2006), ECLI:EU: C:2006:456. 22 Case C-13/05, Opinion of Advocate General Geelhoed, 16 March 2006, ECLI:EU:C:2006:184, para. 58. 23 Para. 43. 24 E.g. Cases C-335&337/11 HK Danmark, acting on behalf of Ring v Dansk Almennyttigt Boligselskab; HK Damark, acting on behalf of Werege v Dansk Arbejdsgiverforening, acting on behalf of Pro Display A/S (ECJ 11 April 2013); Case 363/12, Z v A Govt Dept (ECJ 18 March 2014); Case C-356/12, Wolfgang Glatzel v Freistaat Bayern (ECJ 22 May 2014), ECLI:EU: C:2014:350; Case C-354/13, Fag og Arbejde (FOA), acting on behalf of Karsten Kaltoft v Kommunernes Landsforening (KL), acting on behalf of the Municipality of Billund (ECJ 18 December 2014), ECLI:EU:C:2014:2463; Case C-395/15, Mohamed Daouidi v Bootes Plus SL and Others (ECJ 1 December 2016), ECLI:EU:C:2016:917; Case C-406/15, Petyia Milkova v Izpalnitelen direktor na Agentsiata za privatizatsia i sledprivatizatsionenkontrol (ECJ 9 March 2017), ECLI:EU:C:2017:198; Case C-270/16, Carlos Enrique Ruiz Conejero v Ferroser Servicios Auxiliares SA and Ministerio Fiscal (ECJ 18 January 2018), ECLI:EU:C:2018:17.

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applies the relevant rules, which de facto does not respect a ‘social model’ approach. For instance, Charlotte O’Brien,25 has argued that the EU’s definition of disability is based on the language of the social model of disability, but adhering to a predominantly medical model . . . a market-medical model in which the “attitudinal barriers” are those of the disabled people themselves.

In an earlier publication,26 O’Brien argues that the CJEU in Glatzel,27 despite appearing to unequivocally endorse the approach to the definition of disability in Ring, in fact falls short of a genuine embracing of the social model. Likewise, Delia Ferri28 notes, of Daouidi29: In spite of the fact that the Court is potentially widening the notion of disability, it appears, once again, quite reticent in its approach to the role of social, environmental and attitudinal barriers in disabling an individual, and remains somewhat ‘trapped’ in the medical model of disability.

Lisa Waddington’s position is even more robust.30 She argues that the CJEU’s position is a narrow view of disability, inconsistent with the social model. By contrast, several authors suggest that the CJEU has in fact accepted the UN CRPD’s social model, albeit perhaps reluctantly.31 Hervey and Rostant take the view that the thrust of the post Chacón Navas cases is such that the prohibition of discrimination on grounds of disability in Directive 2000/78 must now be understood in the light of the UN CPRD’s social model. They point out that all of the CJEU rulings on the point since the approval of the UN CRPD have taken care to repeat the social model formulation. They understand the possible equivocation in the Kaltoft ruling as follows: On the face of it, the judgment appears to be looking in two directions at the same time. Having paid the appropriate homage to the primacy of the social model in paragraph 59, the judgment appears to home in on a purely medical model in paragraph 60. It would, however, be a mistake to take paragraph 60 as limiting obese workers to having to show functional impairments, say to mobility, in order to prove their disability. The words ‘in particular’ ought to be read as addressing the particular facts of the instant case. If the Danish court were to find that Mr Kaltoft had ‘reduced mobility’ or ‘discomfort when carrying out his professional activity’, it need look no further. Given that Kaltoft was severely obese, such a finding would be unsurprising. . . . But it need not be taken as the CJEU reverting to a purely medical model, and it certainly need not be taken as shutting the

25

O’Brien (2016). O’Brien (2014), pp. 723–728. 27 Case C-356/12, Wolfgang Glatzel v Freistaat Bayern (ECJ 22 May 2014), ECLI:EU:C:2014:350, paras. 45 and 46. 28 Ferri (2019). 29 Case C-395/15, Mohamed Daouidi v Bootes Plus SL and Others (ECJ 1 December 2016), ECLI: EU:C:2016:917. 30 Waddington (2015), pp. 11–35. 31 Betsch (2013), pp. 135–142; see also Hießl and Boot (2013), pp. 119–134. 26

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door on the idea that an impairment can result in disability through its interaction with attitudinal or environmental barriers. . . . To treat paragraph 60 of Kaltoft as an abandonment of that general line of jurisprudence would be to place unwarranted weight on a part of a judgment that is probably only intended as a steer to the national court.

Eva Kajtár32 even goes so far as to describe the rulings as a ‘paradigm shift’. On a more general level, that is to say, not (yet) specifically linked to the concept of ‘disability’, it should be noted the CJEU has accepted the legal relevance of peoples’ attitudes leading to discrimination in Nikolova,33 a case about ethnic discrimination. In the context of the proof of discrimination, the CJEU indicated, that, in order to determine whether there is sufficient evidence for a finding that the facts from which it may be presumed that there has been direct discrimination on grounds of ethnic origin have been established, one matter to be taken into account is whether the practice at issue is “based on ethnic stereotypes or prejudices”.34 The CJEU also held that there can be no justification for different treatment where the measures taken in the interest of an in-principle legitimate aim are of an offensive or stigmatising nature.35 From this, it has been concluded more generally that, where a measure is proved to be based on stereotypes and prejudice in relation to a discrimination ground, this would lead to a finding of direct discrimination based on the relevant ground.36 Importantly, in such a setting it is not necessary that the person complaining about discrimination in fact possesses limitations or negative qualities that form the basis for the stereotype of prejudice; it is sufficient that the discriminator perceives the person in this manner.

4 The Social Approach to Disability Discrimination as Applied to ‘Non-ideal Weight’ Discrimination If—and we repeat that this is a conditional argument only—the CJEU indeed has accepted that the social model of the UN CRPD is applicable as a ‘general principle’ of EU law, then disability discrimination in EU law must be understood as a limitation which springs from impairments which, in interaction with various attitudinal and environmental barriers, may hinder the full and effective 32

Kajtár (2013), pp. 5–21. Case C-83/14, CHEZ Razpredelenie Bulgaria AD v Komisia za zashtita ot diskriminatsia, third parties: Anelia Nikolova, Darzhavna Komisia za energiyno i vodno regulirane (ECJ 16 July 2015), ECLI:EU:C:2015:480. 34 Case C-83/14, Nikolova (ECJ 16 July 2015), para. 82. 35 Case C-83/14, Nikolova (ECJ 16 July 2015), para. 128. 36 Thus Advocate General Kokott in her conclusions on ECJ, C-157/15, Samira Achbita and Centrum voor gelijkheid van kansen en voor racismebestrijding v G4S Secure Solutions NV, 31 May 2016, ECLI:EU:C:2016:382, para. 55. Further e.g. Timmer (2016), pp. 37–46, 45; Tobler (2018), pp. 1017–1046, 1030. 33

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participation of the person concerned in professional life, and presumably in other contexts within the scope of EU law, which of course changes over time. The impairments here are the person’s non-ideal weight. But what type of barriers does this definition include? It includes physical or environmental barriers, such as infrastructure, perhaps a lack of a lift in a building in which an overweight person is expected to work on the tenth floor. (Although we note that some overweight people would be happy to climb ten flights of stairs: overweight need not necessarily mean lacking in physical fitness or abilities. There are, for instance, social groups of selfidentifying ‘fat runners’.) But it could also include attitudinal barriers. A person discriminated against because of their weight, in a context falling within the scope of EU law, who was able to show the existence of attitudes generally held in society which have a negative impact on the ability of people of ‘non-ideal weight’ to participate in society, would establish that they have a protected characteristic under EU non-discrimination law, that of disability. That would mean that the attitudes towards non-ideal weight, which lead to discriminatory decisions against people with non-ideal weight, can be tackled as an aspect of discrimination on a ‘forbidden ground’ in EU law.

5 Conclusions In this contribution, we have suggested a markedly broader concept of ‘disability’, based on the so-called ‘social model’. This approach—if adopted—holds great promise for EU equality law more generally. Why? Because it shows a way of bringing, within an apparently closed list of forbidden grounds of discrimination, more general attitudes based on unjustified (and often unconscious) assumptions about members of a group that is not an explicitly protected group. In short, it moves EU law from a narrow legalistic approach to equality towards an inclusive and dignity-focused approach to equality. At the same time, at the level of EU law itself, it is important to remember that such an approach can be fruitful only within its limited field of application. With respect to disability, there is so far only Directive 2000/78 which is limited to employment issues. A proposal for a further directive that would go further, including, among other areas, health care, has been pending for years.37 The European Accessibility Directive38 is not framed in terms of discrimination. Rather, it provides

37

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 fin. 38 Directive (EU) 2019/882 of the European Parliament and of the Council of 17 April 2019 on the accessibility requirements for products and services, OJ L 151/70 (2019).

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for specific rights in the context of persons with a disability or with functional limitations. Pending the adoption of additional EU law, it is important also to remember that the Member States are free to adopt non-discrimination law in areas not covered by EU law, and that the existing law provides for a minimum level of protection only. Accordingly, the Member States can provide a higher level of protection than that guaranteed by Directive 2000/78. In this framework there is, therefore, room on the national level for the adoption of a fully social model of ‘disability’, consistent with the UN CRPD, even outside the scope of application of the present EU law.

References Baum, Charles, and William F. Ford. 2004. The Wage Effects of Obesity: A Longitudinal Study. Health Economics 13: 885–899. Betsch, Nathalie. 2013. The Ring and Skouboe Werge Case: A Reluctant Acceptance of the Social Approach to Disability. European Labour Law Journal 4: 135–142. Burri, Susanne, and Sacha Prechal. 2009. Comparative Approaches to Gender Equality and Non-discrimination Within Europe. In European Union Non-Discrimination Law. Comparative Perspectives on Multidimensional Equality Law, ed. Dagmar Schiek and Viktoria Chege, 215–247. London: Routledge. Caliendo, Marco, and Wang-Sheng Lee. 2013. Fat Chance! Obesity and the Transition from Unemployment to Employment. Economics & Human Biology 11: 121–133. Cawley, John. 2004. The Impact of Obesity of Wages. Journal of Human Resources 39: 451–474. Collingbourne, Tabitha. 2012. Realising Disability Rights? Implementation the UN Convention on the Rights of Persons with Disabilities in England – A Critical Analysis. . Dougan, Michael. 2015. Judicial Review of Member State Action under the General Principles and the Charter: Defining the “Scope” of Union Law. Common Market Law Review 52: 2101–1245. Ferri, Delia. 2019. Daouidi v Bootes Plus SL and the Concept of ‘Disability’ in EU AntiDiscrimination Law. European Labour Law Journal 10: 69–84. Hamermesh, Daniel S., and Jeff E. Biddle. 1994. Beauty and the Labour Market. American Economic Review 84: 1174–1194. Hervey, Tamara, and Philip Rostant. 2016. ‘All About That Bass’? Is Non-ideal Weight Discrimination Unlawful in the UK? Modern Law Review 79: 248–282. Hießl, Christina, and Gerrard Boot. 2013. The Application of the EU Framework for Disability Discrimination in 18 European Countries. European Labour Law Journal 4: 119–134. Jackson, Sarah E., Rebecca Beeken, Jane Wardle, et al. 2015. Perceived Weight Discrimination in England: A Population-Based Study of Adults Aged  50 Years. International Journal of Obesity 39: 858–864. Kajtár, Edit. 2013. Life Outside the Bubble: International and European Legal Framework of Disability Discrimination in Employment. Pécsi Munkajogi Közlemények 6: 5–21. Laulom, Sylvaine. 2009. French Legal Approaches to Equality and Discrimination for Intersecting Grounds in Employment Relations. In European Union Non-Discrimination Law. Comparative Perspectives on Multidimensional Equality Law, ed. Dagmar Schiek and Viktoria Chege, 279–294. London: Routledge. Lawson, Anna. 2008. Disability and Equality Law in Britain: The Role of Reasonable Adjustement. Oxford: Hart-Publishing.

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Lenaerts, Koen, and José Antonio Gutiėrrez-Fons. 2014. The Charter in the EU Constitutional Edifice. In The EU Charter of Fundamental Rights, ed. Steve Peers, Tamara Hervey, Jeff Kenner, and Angela Ward, 1559–1593. Oxford: Hart-Publishing. O’Brien, Charlotte R. 2014. Driving Down Disability Equality? Case C-356/12, Wolfgang Glatzel v Freistaat Bayern Judgment of 2 May 2014. Maastricht Journal of European and Comparative Law 21: 723–728. ———. 2016. Union Citizenship and Disability: Restricted Access to Equality Rights and the Attitudinal Model of Disability. In Citizenship and Federalism in Europe: The Role of Rights, ed. Dimitri Kochenov, 509–539. Cambridge: Cambridge University Press. O’Cinneide, Colm. 2009. Extracting Protection of the Rights of Persons with Disabilities from Human Rights Frameworks: Establishing Limits and New Possibilities. In The UN Convention on the Rights of Persons with Disabilities: European and Scandanavian Perspectives, ed. Oddný Mjöll Annandóttir and Gerard Quinn, 163–198. The Hague: Marinus Nijhoff. Pagan, José A., and Alberto Dávila. 1997. Obesity, Occupational Attainment, and Earnings. Social Science Quarterly 78: 756–770. Puhl, Rebecca M., and Chelsea A. Heuer. 2009. The Stigma of Obesity: A Review and Update. Obesity 17: 941–964. Timmer, Alexandra. 2016. Gender Stereotyping in the Case Law of the EU Court of Justice. European Equality Law Review 2016: 37–46. Tobler, Christa. 2018. Equal Treatment and Non-Discrimination. In The Law of the European Union, eds. Pieter Jan Kuijper, Fabian Amtenbrink, Deidre Curtin, Bruno De Witte, Alison McDonnell, Stefaan Van den Bogaert, 1017-1046. Alphen aan de Rijn: Kluwer International. Waddington, Lisa. 2015. “Not Disabled Enough”: How European Courts Filter Non-discrimination Claims Through a Narrow View of Disability. European Journal of Human Rights 15: 11–35. World Health Organisation. 1980. International Classification of Impairments Disabilities and Handicaps – A Manual of Classification Relating to the Consequences of Disease. Geneva. Xing, Michelle Liu, and Eva Sierminska. 2014. Evaluating the Effect of Beauty on Labor Market Outcomes: A Review of the Literature. IZA Discussion Paper. .

The Impact of the UN Convention on the Rights of Persons with Disabilities on EU Anti-Discrimination Law Theresia Degener

Contents 1 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 Non-discrimination in the CRPD . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.1 Non-discrimination as a Principle and a Right . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.2 Reasonable Accommodation as a New Concept . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.3 Inclusive Equality as a New Model of Equality . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 Impact of CRPD on EU Jurisprudence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 Impact of CRPD on EU Legislation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 Conclusions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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Abstract This chapter explores the impact the UN Convention on the Rights of Persons with Disabilities (CRPD) of 2006 had on EU Anti-Discrimination Law. The CRPD is the first human rights treaty the EU acceded to in 2010 (then still EEC). The chapter gives an overview over the rights and principles on non-discrimination as enshrined in the CRPD. It elaborates on the meaning and legal character of “denial of reasonable accommodation” as a new form of discrimination and how it relates to the concept of inclusive equality and the human rights model of disability. The CRPD so far had an impact on EU jurisprudence and EU legislation. The former concerns the definition of disability which shifted from a medical model towards a socialcontextual orientation. The latter has been more far reaching. A significant number of secondary legislation has been adopted during the last decade with the aim to implement the CRPD within the EU. Most significantly the Disability Strategy 2010–2020, the European Structural and Investment Funds of 2013 and the European Accessibility Act of 2019 are results of these endeavors.

T. Degener (*) Evangelische Hochschule Rheinland-Westfalen-Lippe, Soziale Arbeit, Bildung und Diakonie, Recht und Disability Studies, Bochum, Germany e-mail: [email protected] © Springer Nature Switzerland AG 2020 T. Giegerich (ed.), The European Union as Protector and Promoter of Equality, European Union and its Neighbours in a Globalized World 1, https://doi.org/10.1007/978-3-030-43764-0_18

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1 Introduction When the Convention on the Rights of Persons with Disabilities was adopted by the United Nations in 2006 it was the first international human rights treaty adopted in the new millennium which was composed of many innovations, which and why it is usually called the treaty of many firsts. It is the first international binding treaty addressing the rights of persons with disabilities from a human rights based approach, it is the first international human rights treaty demanding a comprehensive national monitoring mechanism1 to be implemented by members, it is the first human rights treaty addressing the issue of intersectionality,2 and the topic of development3 from the human rights based angle and—most importantly for our context—it is the first international human rights treaty providing membership for regional integration organizations4 such as the European Communities which have now become the EU. The latter acceded the CRPD in 2010 which made the treaty part of European Union law starting from 2011. The monitoring mechanism under the CRPD requires that member states submit an initial report within 2 years of ratification and thereafter submit periodic reports.5 State party reports are then reviewed by the CRPD Committee and a constructive dialogue with members is held in Geneva. The EU’s first report6 was reviewed in 2015 which resulted in concluding observations adopted by the Committee in the same year.7 Together with its views on individual communications,8 it’s reports on inquiry procedures,9 and its general comments (GC),10 the concluding observations of the CRPD Committee are part of what is usually called the jurisprudence of the human rights treaty bodies. Within its first decade the CRPD Committee has adopted about 70 concluding observations, approximately 25 individual communications were considered, 3 reports on inquiry procedures and 7 general comments were adopted. Nondiscrimination was a topic in all these procedures, of particular importance is GC No 6 on Article 5 CRPD dealing with equality and nondiscrimination.11

1

Art. 33 CRPD. Art. 6 CRPD. 3 Art. 32 CRPD. 4 Art. 44 CRPD. 5 Art. 35 CRPD. 6 United Nations, Convention on the Rights of Persons with Disabilities, Initial report of States parties, European Union, CRPD/C/EU/1, Distr.: Gen. 3. Dez. 2014. 7 CRPD Committee, Concluding Observations on the initial report of the European Union, CRPD/ C/EU/CO/1 adopted 3 September 2015. 8 Art. 5 OP to CRPD. 9 Art. 6 OP to CRPD. 10 Committee on the Rights of Persons with Disabilities, Rules of Procedures, CRPD/C/1/Rev.1 Distr. Gen. 10 October 2016, Rule 47. 11 Degener (2019). 2

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The CRPD is rightly called the treaty of paradigm change from the medical model to the human rights model of disability. This paradigm change did not start with the CRPD, in fact EU disability law had initiated that paradigm change at least a decade earlier by adopting the social model approach to disability in various programs and legislations.12 The turning point was 1997, when disabled people became visible citizens of the European Community with the adoption of the Amsterdam Treaty and its Article 13 on antidiscrimination measures covering disability as one of several categories. Adopting a social model approach to disability meant that European disability law and policy was based on the understanding that disability is not only a medical issue to be dealt with by rehabilitation, therapies and other individualized fixing measures. The social model of disability meant to see it as a socially constructed category, caused by barriers, discrimination, stigmatization and exclusion. Instead of welfare measures modern European disability law started to be rights based and equality oriented. Disability law and policy based on a social model of disability prioritized antidiscrimination measures. The first European legislation taking such an approach was the Employment Equality Directive of 2000 prohibiting discrimination inter alia on the ground of disability in the field of employment and vocational training.13 The European Union’s predecessor, the European Communitees signed the treaty in 2007 together with more than 80 member states of the UN at the earliest possibility when the Secretary-General opened for signature in March 2007. The legal effect is that the EU has become a party to the CRPD to the extent of its competences. According to Article 44 CRPD the EC/EU had to declare the extent of its competences with regard to the fields covered by the Convention when concluding that treaty. Thus, the signature was supplemented with annexes on these competences and a code of conduct between the Council, the EU member states and the Commission in relation to the implementation by and representation of the EU relating to the CRPD.14 The CRPD is a mixed agreement since it involves exclusive and shared competence and supportive competence to act. With respect to disability equality and antidiscrimination, the EU shares competence with its members all of whom have by now ratified the Convention.

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Waddington (2006). Council Directive 20070/78/EC on establishing a general framework for equal treatment in employment and occupation OJ L303/16 (2000). 14 Council Decision of 26 November 2009 concerning the conclusion, by the European Community, of the United Nations Convention on the Rights of Persons with Disabilities, , Annex II. 13

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2 Non-discrimination in the CRPD 2.1

Non-discrimination as a Principle and a Right

Nondiscrimination runs like a “golden thread” throughout the CRPD. In fact, when the treaty was negotiated between 2002 and 2006 in New York, a substantial part of the initial negotiations related to its legal character as a pure antidiscrimination treaty, or a development treaty or a more holistic treaty.15 The European Commission took part in these negotiations and vigorously lobbied for a pure antidiscrimination instrument, however, without success.16 The finally adopted CRPD is a holistic human rights treaty, similar to the Convention on the Rights of the Child. Antidiscrimination as a principle and as a right has a prominent role in it. It appears in several of the eight general principles of the convention in Article 3, which includes inter alia, the principle of nondiscrimination,17 equality of opportunity,18 or equality between men and women.19 In Article 4 on general obligations, State parties are asked to take all appropriate measures, to modify or abolish existing laws, customs and practice which constitute discrimination against persons with disabilities. State parties are further obliged, to protect disabled people against discrimination by private actors20 and to combat discrimination with immediate, effective and appropriate measures of awareness raising against stereotypes, prejudices, harmful practices and other forms of discriminatory attitudes against disabled persons.21 The main antidiscrimination provision, Article 5, demands that State Parties prohibit all forms of disability-based discrimination and clarifies, that specific measures for the purpose of achieving de facto equality of disabled persons shall not be considered discrimination. The right to be protected against discrimination as enshrined in Article 5 includes the right to be provided with reasonable accommodation.22 It is important to note, that reasonable accommodation duties under the CRPD are not to be considered proactive equality measures, also called positive discrimination or special or specific measures. The denial of reasonable accommodation is defined as a form of discrimination in the definition part of the Convention.23 Thus, as one of its innovations, the CRPD enlarges the definition of discrimination in international human rights law. It is further important, to distinguish reasonable accommodation duties from accessibility duties under Article 15

Quinn (2009), Trömel (2009) and Degener & Begg (2017). Waddington (2013). 17 Art. 3 lit. b) CRPD. 18 Art. 3 lit. c) CRPD. 19 Art. 3 lit. g) CRPD. 20 Art. 4 (1) lit.e) CRPD. 21 Art. 8 CRPD. 22 Art. 5 (3) CRPD. 23 Art. 2 CRPD. 16

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9 CRPD. Accessibility of the built environment, of public transportation and of information and communication systems are of paramount importance for achieving equality of disabled persons. As the Committee has elaborated in its GC No 2, accessibility is a precondition for equality and nondiscrimination.24 But legally, both measures need to be distinguished to which I will return to later. The CRPD is also the first binding international human rights treaty acknowledging multiple discrimination in Article 6 on disabled women. In the preamble multidimensional discrimination in relation to other categories than gender or disability are mentioned.25 All substantive rights within the CRPD contain the clause “on an equal basis with others”, which confers an equality dimension to all rights within the CRPD. For example Article 12 on equal recognition before the law provides that persons with disabilities enjoy legal capacity on an equal basis with others in all aspects of life26 and have a right to access to the support they may require in exercising their legal capacity.27 Supported decision-making is the new term in this regard, challenging systems of substitute decision-making such as guardianship laws or mental health laws. The Committee has interpreted Article 12 as prohibiting all forms of substitute decision-making.28 In fact, Article 12 is the strongest manifestation of what has been called the human rights model of disability as the basis of the CRPD and an improvement of the social model of disability.29 The human rights model of disability clarifies that human rights may not be denied or restricted on the basis of impairment and the enjoyment of human rights cannot be preconditioned on a certain health status. The human rights model of disability goes beyond the antidiscrimination agenda in that it demands equal freedom and free equality for all persons with disabilities.

2.2

Reasonable Accommodation as a New Concept

Denial of reasonable accommodation as a new form of discrimination in international law has its roots in US antidiscrimination law where it was first used 1972 in the context of religion in an amendment to the Civil Rights Act of 1964. In 1973 it was extended to disability antidiscrimination law, where it has since then remained and developed into one of the key concepts of disability antidiscrimination law

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Committee on the Rights of Persons with Disabilities (2014) General Comment No. 2, Art. 9: Accessibility, CRPD/C/GC/2, para. 1. 25 Preamble rec. P) CRPD. 26 Art. 12 (2) CRPD. 27 Art. 12 (4) CRPD. 28 Committee on the Rights of Persons with Disabilities (2014) General Comment No. 1, Art. 12: Equal recognition before the law, CRPD/C/GC/1, para. 17. 29 Degener (2016).

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worldwide.30 During the 1990s a number of countries, such as Canada, Australia or the UK followed the US and adopted similar disability discrimination laws. But the real boost came in the new millennium. With the incorporation of the term “reasonable accommodation” into Article 5 of the European Employment Equality Directive, it became legally mandatory for EU Member States to adopt or amend employment discrimination legislation which provides for reasonable accommodations to persons with disabilities. In the first decade many European countries enacted such legislation, albeit struggling with the legal implications of reasonable accommodation as a 2016 report of Delia Ferri and Anna Lawson on this matter reveals.31 While the CRPD did not give birth to the terminology, it provides a clear definition of reasonable accommodation as “necessary and appropriate modification and adjustments not imposing a disproportionate or undue burden, where needed in a particular case, to ensure to persons with disabilities the enjoyment or exercise on an equal basis with others of all human rights and fundamental freedoms”.32 Thus, reasonable accommodation is about making space for differences in human beings and it resonates neatly with the concept of substantive or material equality as developed in antidiscrimination theory as a step beyond formal equality.33 In its 2018 GC No 6 the Committee has further elaborated on the normative content of Article 5 and the legal character of reasonable accommodation duties. It emphasizes that these duties need to be distinguished from accessibility duties according to Article 9. Whereas accessibility measures address groups of disabled persons reasonable accommodations according to Article 5 address individual circumstances. In GC No 6 the Committee explained these differences: Reasonable accommodation duties are different from accessibility duties. Both aim to guarantee accessibility, but the duty to provide accessibility through universal design or assistive technologies is an ex ante duty, whereas the duty to provide reasonable accommodation is an ex nunc duty: (a) As an ex ante duty, accessibility must be built into systems and processes without regard to the need of a particular person with a disability, for example, to have access to a building, a service or a product, on an equal basis with others. States parties must set accessibility standards that are developed and adopted in consultation with organizations of persons with disabilities, consistent with article 4 (3) of the Convention. The duty of accessibility is a proactive, systemic duty; (b) As an ex nunc duty, reasonable accommodation must be provided from the moment that a person with a disability requires access to non-accessible situations or environments, or wants to exercise his or her rights. Reasonable accommodation is often but not necessarily requested by the person who requires access, or by relevant representatives of a person or a group of people. Reasonable accommodation must be negotiated with the applicant(s). In certain circumstances, the reasonable accommodation provided becomes a collective or public good. In other cases, the reasonable accommodations provided only benefit the applicant(s). The duty to provide reasonable accommodation is an

30

Waddington (2007). Ferri and Lawson (2016). 32 Art. 2 CRPD. 33 Arnadóttir (2009) and Broderick (2015). 31

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individualized reactive duty that is applicable from the moment a request for accommodation is received. Reasonable accommodation requires the duty bearer to enter into dialogue with the individual with a disability.34

Reasonable accommodation duties also need to be distinguished from positive discrimination measures called specific measures in Article 5 (4) CRPD While specific measures imply a preferential treatment of persons with disabilities over others to address historic and/or systematic/systemic exclusion from the benefits of exercising rights, reasonable accommodation is a non-discrimination duty.35 The Committee defines denial of reasonable accommodation as one form of discrimination, next to direct and indirect discrimination as well as harassment.36 It is to be hoped that this clarification puts an end to uncertainties regarding the legal character of reasonable accommodation. There has been quite some debate on whether denial of reasonable accommodation is a form of direct or in direct discrimination or whether it is a sui generis discrimination. Member States have legislated on this in different manners.37 Two more clarifications in GC No 6 may have an impact on EU law in the future. The duty to provide reasonable accommodation is limited by the disproportionate or undue burden test. Often, the proportionality test is mixed with the reasonable test, which in itself does not put a financial ceiling to the duty. A measure is reasonable if it is effective for the purpose it aims to achieve (promote equality and eliminate discrimination). Financial burdens associated with the duty have to be assessed at a later step, not under the reasonable test.38 The other conceptual clarification GC No 6 offers relates to the procedure of negotiating reasonable accommodation. It involves several steps such as: identifying barriers, assessing feasibility and relevance of the modification to be made, assessing the limits of the duty and making sure that the modification achieves its objectives.39

2.3

Inclusive Equality as a New Model of Equality

Modern antidiscrimination law has moved from formal equality concepts to substantive equality.40 Whereas formal equality is based on the idea of sameness in 34 CRPD Committee, General comment No. 6 (2018) on equality and non-discrimination, CRPD/C/ GC/6, para. 24. 35 CRPD Committee, General comment No. 6 (2018) on equality and non-discrimination, CRPD/C/ GC/6, para. 25. 36 CRPD Committee, General comment No. 6 (2018) on equality and non-discrimination, CRPD/C/ GC/6, para. 18. 37 Waddington (2007) and Ferri and Lawson (2016). 38 CRPD Committee, General comment No. 6 (2018) on equality and non-discrimination, CRPD/C/ GC/6, para. 25. 39 CRPD Committee, General comment No. 6 (2018) on equality and non-discrimination, CRPD/C/ GC/6, para. 26. 40 Arnadóttir (2009).

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treatment, substantive equality takes into account de facto equality and the result of equality measures. In order to tackle indirect discrimination and denial of reasonable accommodation, antidiscrimination law needs to take into account different needs of social groups as well as acknowledge that social groups are not homogeneous. One could argue that the CRPD follows the substantive equality model, however, the Committee in GC No 6, declared that the CRPD is based on an equality concept, which goes further than the substantive equality model. The CRPD equality model is called inclusive equality model and is based on what Sandra Fredman has developed as the transformative equality model.41 “It embraces a substantive model of equality and extends and elaborates on the content of equality in: (a) a fair redistributive dimension to address socioeconomic disadvantages; (b) a recognition dimension to combat stigma, stereotyping, prejudice and violence and to recognize the dignity of human beings and their intersectionality; (c) a participative dimension to reaffirm the social nature of people as members of social groups and the full recognition of humanity through inclusion in society; and (d) an accommodating dimension to make space for difference as a matter of human dignity.”42 Inclusive equality resonates with the human rights model which improves the social model of disability. The human rights model of disability “recognizes that disability is a social construct and impairments must not be taken as a legitimate ground for the denial or restriction of human rights. It acknowledges that disability is one of several layers of identity. Hence, disability laws and policies must take the diversity of persons with disabilities into account. It also recognizes that human rights are interdependent, interrelated and indivisible.”

3 Impact of CRPD on EU Jurisprudence In its first decade the CRPD had a clear impact on EU jurisprudence as developed by the Court of Justice. A thorough review of the use of CRPD by the Court of Justice of the European Union has been undertaken by Lisa Waddington recently.43 Her finding is that—so far—the major influence of the CRPD can be seen in the definition of disability interpreted by the Court of Justice. The CRPD as an international treaty concluded by the EU has its place in the hierarchy of the EU norms. According to established jurisprudence, international agreements are inferior to primary law but superior to secondary law.44 Thus, the Court is bound to interpret secondary EU law relating to the scope of the CRPD in a manner which is consistent

41

Fredman (2003). CRPD Committee, General comment No. 6 (2018) on equality and non-discrimination, CRPD/C/ GC/6, para. 11. 43 Waddington (2018), p. 131 et seq. 44 Waddington (2018), p. 47 et seq. 42

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with the CRPD as far as possible. In exceptional circumstances the Court may also find that secondary law, conflicting with the CRPD, is invalid.45 Before concluding the CRPD, the Court in 2006 held in Chacon Navas46 that for the purpose of the Employment Equality Directive, disability is to be defined as “a limitation which result in particular from physical, mental or psychological impairments and which hinders the participation of the person concerned and professional life.”47 The limitation, the Court held, can only be regarded as disability” if it will last for a long time”.48 As Waddington criticized soon after the publication of the judgment,49 this definition was based on the outdated—and by the CRPD overrule medical model of disability. According to this model, the disadvantage of person with disabilities experiences is rooted in the impairment and not caused by the reaction of society to this impairment. In HK Danmark (Ring and Skoube Werge)50 the Court has redefined disability as “a limitation which results in particular from physical, mental or psychological impairments which in interaction with various barriers may hinder the full and effective participation of the person concerned in professional life on an equal basis with others workers.”51 This definition is based on Article 1 CRPD which does not contain a legal definition of disability but describes the group of persons with disabilities as including: “those who have long-term physical, mental, intellectual or sensory impairments which in interaction with various barriers may hinder their full and effective participation in society on an equal basis with others.” One can debate whether this new definition is fully in line with the CRPD, i.e. with the human rights model of disability. Lisa Waddington who proposed a social contextual definition of disability on the basis of the CRPD, argues, that the Court in HK Danmark still held onto the medical model of disability despite referring to article 1 CRPD. However, she agrees that HK Danmark can be regarded as the leading case which brought EU definition of disability more into line with the CRPD.52 The human rights model of disability has so far not been referred to by the Court, but it has been used by other EU institutions such as the European Parliament.53 The human rights model of disability contains no definition of disability but an understanding of disability as a socially constructed phenomenon which needs to be contextualized in human rights law and policy.54

45

Waddington (2018), p. 134. Case 13/05, Chacón Navas v. Eurest Clectividades SA, (ECJ 11 July 2006). 47 Ibid., para. 43. 48 Ibid., para. 45. 49 Waddington (2013), p. 169. 50 Joined Cases 335/11 and 337/11 HK Danmark (Ring and Skouboe Werge) (ECJ 11 April 2013). 51 Ibid., para. 38. 52 Waddington (2018), pp. 150–152. 53 European Parliament resolution on implementation of the European Disability Strategy, 2017/ 2127 (30 November 2017), para. 68. 54 Degener (2016). 46

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In HK Danmark as well as in other cases the Court referred to the CRPD concerning reasonable accommodation, but the references usually go to the text of the Convention rather than to the jurisprudence of the CRPD Committee. As regards reasonable accommodation, the clearest impact of the CRPD can be seen in the clarification that denial of reasonable accommodation is a form of discrimination and not merely a measure to promote antidiscrimination. The Equal Employment Directive uses the phrase “reasonable accommodation” in a different paragraph than the definition of discrimination. This has led to irritations as to whether denial of reasonable accommodation is a form of discrimination. The text of the Convention is very clear in this regard, as Article 2 defines discrimination as “any distinction, exclusion or restriction on the basis of disability which has the purpose or effect of impairing or nullifying the recognition, enjoyment or exercise, on an equal basis with others, of all human rights and fundamental freedoms in the political, economic, social, cultural, civil or any other field. It includes all forms of discrimination, including denial of reasonable accommodation.”

4 Impact of CRPD on EU Legislation Certainly the CRPD also had an impact on EU legislation. While the European Commission until today did not undertake a full review of EU law to determine compliance with the Convention,55 in many of its secondary legislative instruments (regulations directives or decisions) the EU has since its conclusion of the Convention referred to the CRPD and thus indicated that these instruments are designed to implement the treaty in some way. Examples are the 2012 Regulation (1025/2012) on European Standardization, or the 2014 Regulation on electronic transactions in the internal market. Lisa Waddington and Andrea Broderick, who recently compared the CRPD with EU equality law, found that there are areas where the EU does not yet fully comply with the CRPD, but also areas where the EU goes beyond the requirement of the CRPD.56 With respect to CRPD impact on EU antidiscrimination legislation three areas should be mentioned: The Disability Strategy 2010–2020, the Structural and Investment Funds Regulations, and the European Accessibility Act of 2019. The European Disability Strategy 2010–2020—a Renewed Commitment to a Barrier Free Europe,57 is not a formal EU legislation because it is programmatic and rather a form of “soft law”. But it is the main basis for EU disability law and policy. The Treaty on the Functioning of the EU (TFEU) requires the Union to combat

55

But see the annual review of ANED (Academic Network of Academic Disability Experts) until 2018 http://www.disability-europe.net/theme/eu-law-and-policy. 56 Waddington and Broderick (2018), pp. 89–93. 57 The European Disability Strategy 2010–2020: A renewed commitment to a barrier-free Europe, COM (2010) 636 final of 15 November 2010.

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disability based discrimination when defining and implementing its policies and activities (Article 10) and gives it the power to adopt legislation to address such discrimination (Article 19).The strategy identifies 8 areas of action to be taken by the EU and its member states, equality being among them. The European Disability Strategy 2010 to 2020 has clearly been impacted by the CRPD. The whole purpose of that strategy is to implement the CRPD within the European Union. By far the strongest impact of the CRPD on EU legislation can be found in the 2013 General Regulation on the European Structural and Investment Funds.58 The ESIF funds are a series of financial support mechanisms for EU members particularly those economically disadvantaged. Financial support is given to projects in areas such as infrastructure training and employment. The General Regulations of 2013 include so-called “ex-ante conditionalities” for the receipt of funding. Among them are the existence of administrative capacity for the implementation and application of the CRPD and, more importantly, reassurance that these funds are used for anti-discrimination measures in line with the CRPD, and particularly for deinstitutionalization instead of refurbishing or building new institutions contrary to Article 19 CRPD.59 These regulations go back to a legal opinion of 2012 written by Gerard Quinn and Suzanne Doyle on the use and future potential of the EU structural funds to contribute to the implementation of the CRPD.60 The legal opinion clarified that the use of ESI funds must be redirected from financing institutional settings for persons with disabilities to deinstitutionalization and provision of independent living services. Civil society had criticized for a long time the use of European structural and investment funds for this matter.61 During the review of the first European Union “State” Party report to the CRPD Committee in 2015 this issue played a major role in the dialogue. In its Concluding Observations, the Committee recommended “that the European Union develop an approach to guide and foster deinstitutionalization and to strengthen the monitoring of the use of the European Structural and Investment Funds so as to ensure that they are used strictly for the development of support services for persons with disabilities in local communities and not for the redevelopment or expansion of institutions.”62 These measures are important in order to achieve equal opportunity for persons with disabilities. They enable persons

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Regulation of the European Parliament and of the Council laying down common provisions on the European Regional Development Fund, the European Social Fund, the Cohesion Fund, the European Agriculture Fund for Rural Development and the European Maritime and Fisheries Fund (. . .) OJ L 347/320–469 (2013) and Regulation of the European Parliament and of the Council on the European Social Fund and repealing Council Regulation (EC) No 1081/2006 OJ L 347/470–486 (2013). 59 Regulation of the European Parliament and of the Council on the European Social Fund and repealing Council Regulation (EC) No 1081/2006 OJ L 347/470–486 (2013), para. 19. 60 Quinn and Doyle (2012). 61 European Network on Independent Living - European Coalition for Community Living 2014, pp. 16–33. 62 Committee on the Rights of Persons with Disabilities (2015) Concluding Observations on the initial report of the European Union, CRPD/C/EU/CO/1, para. 51.

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with disabilities to equally choose where, with whom and how they want to live in the community as enshrined in Article 19 CRPD. The third major impact of CRPD on EU anti-discrimination is visible in the recently adopted European Accessibility Act. This act is not an antidiscrimination legislation since its purpose is to improve accessibility of goods and services and thus improve the functioning of the internal market.63 Article 114 not Article 10 TFEU is the legal basis for this legislation which will help to improve accessibility standards in the digital area. However given that Article 9 CRPD and its interpretation by the Committee in its GC No 2 describe accessibility as a precondition for equality, the EAA can be characterized as an antidiscrimination legislation in a wider sense. While it precludes important areas of daily life such as build environment, household appliances and transport, the directive, will help to improve the accessibility of a set of important products and services for persons with disabilities, such as computers, smartphones, tablets, TV sets, banking ATM and services, payment terminals, e-books and e-readers, e-commerce websites and mobile apps and ticketing machines.

5 Conclusions During the review of the first “State” party report of the EU the lack of a comprehensive antidiscrimination legislation for persons with disabilities in the EU was also discussed. Unlike other categories, disability is only covered by the Equal Employment Directive. A comprehensive horizontal equal treatment directive has been on the table of the European Council since 2008. However, due to the resistance by some EU members—unfortunately Germany taking the lead in this matter—this proposal has never been adopted. When the EU concluded the CRPD, there was much hope that it would lead to the eventual adoption of that directive.64 In fact, the Committee included such a recommendation in its concluding observations.65 The main impact of the CRPD on EU antidiscrimination law can be seen in new legal concepts, such as the human rights model of disability and the inclusive equality model. These new concepts have not so far been materialized in EU jurisprudence of the CJEU and to some extent in EU legislation. There has been some tangible impact with respect to the definition of disability as redefined by the Court in a social-contextual manner. As regards legislation, the impact can be seen in the Disability Strategy 2010–2020, the Structural and Investment Funds Regulations of 2013, and the European Accessibility Act of 2019.

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Charitakis (2018), p. 329. Bruton and Quinlivan (2017). 65 Committee on the Rights of Persons with Disabilities (2015) Concluding Observations on the initial report of the European Union, CRPD/C/EU/CO/1, para. 19. 64

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The CRPD’s human rights model of disability as well as the inclusive equality model of GC No 6 offer theretical pathways for a more comprehensive and coherent antidiscrimination theory. It is to be hoped that the inclusive equality model becomes widely accepted across all categories and fields of discrimination law, of which religion (and disability) are only parts.66

References Arnadóttir, Oddný Mjöll. 2009. A Future of Multidimensional Disadvantage Equality? In The UN Convention on the Rights of Persons with Disabilities. European and Scandinavian Perspectives, ed. Oddný Mjöll Arnardóttir and Gerard Quinn, 41–66. Boston: Leiden. Bielefeldt, Heiner, Nazila Ghanea, and Michael Wiener. 2016. Freedom of Religion or Belief. An International Law Commentary. Oxford: Oxford University Press. Broderick, Andrea. 2015. The Long and Winding Road to Equality and Inclusion for Persons with Disabilities. The United Nations Convention on the Rights of Persons with Disabilities. Cambridge: Intersentia. Bruton, Claire, and Shivaun Quinlivan. 2017. Disability, EU Law and the CRPD: A New Dawn? In Disability Law and Policy. An Analysis of the UN Convention, ed. Charles O’Mahoney and Gerard Quinn, 407–420. Dublin: Clarus Press. Charitakis, Stelios. 2018. Access Denied. The Role of the European Union in Ensuring Accessibility under the United Nations Convention on the Rights of Persons with Disabilities. Cambridge: Intersentia. Degener, Theresia. 2016. A Human Rights Model of Disability. In Routledge Handbook of Disability Law and Human Rights, ed. Peter Blanck and Eilionoir Flynn, 31–50. London: Routledge. Degener, Theresia. 2019. Die UN Behindertenrechtskonvention – Ansatz einer inklusiven Menschenrechtstheorie. In Jahrbuch des öffentlichen Rechts der Gegenwart. Neue Folge, Hg. Susanne Baer, Oliver Lepsius, Christoph Schönberger, Christian Waldhoff, und Christian Walter, 1. Auflage. T‫ﺲ‬bingen: Mohr Siebeck (Jahrbuch des öffentlichen Rechts, 67), S. 487–508. Degener, Theresia, and Andrew Begg. 2017. From Invisible Citizens to Agents of Change. A Short History of the Struggle for the Recognition of the Rights of Persons with Disabilities at the United Nations. In The United Nations Convention on the Rights of Persons with Disabilities. A Commentary, ed. Valentina Della Fina, Rachele Cera, and Giuseppe Palmisano, 1–39. Cham: Springer International Publishing. Ferri, Delia, and Anna Lawson. 2016. Reasonable Accommodation for Disabled People in Employment Contexts. A Legal Analysis of EU Member States, Iceland, Liechtenstein and Norway. Brussels: European Commission. Fredman, Sandra. 2003. Beyond the Dichotomy of Formal and Substantive Equality: Towards a New Definition of Equal Rights. In Temporary Special Measures. Accelerating de facto Equality of Women under Article 4 (1) UN Convention on the Elimination of All Forms of Discrimination Against Women, ed. Ineke Boerefijn, Fons Coomans, Jenny Goldschmidt, Ricky Holtmaat, and Ria Wolleswinkel, 111–119. Antwerpen: Intersentia. Quinn, Gerard. 2009. European Yearbook of Disability Law. Oxford: Hart-Publishing.

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Quinn, Gerard, and Suzanne Doyle. 2012. Getting a Life. Living Independently and Being Included in the Community. A Legal Study to the Current Use and Future Potential of the EU Structural Funds to Contribute to the Achievement of Article 19 of the United Nations Convention on the Rights of Persons with Disabilities. Trömel, Stefan. 2009. A Personal Perspective on the Drafting History of the United Nations Convention on the Rights of Persons with Disabilities. In European Yearbook of Disability Law, ed. Gerard Quinn, vol. 1, 115–138. Oxford: Hart-Publishing. Waddington, Lisa. 2006. From Rome to Nice in a Wheelchair. The Development of a European Disability Policy. Groningen: Europa Law Publishing. Online . ———. 2007. Reasonable Accommodation. In Cases, Materials and Text on National, Supranational and International Non-discrimination Law, ed. Dagmar Schiek, Lisa Waddingtion, and Mark Bell, 629–756. Oxford: Hart-Publishing. ———. 2013. Equal to the Task? Re-examining EU Equality Law in Light of the United Nations Convention on the Rights of Persons with Disabilities. In European Yearbook of Disability Law, ed. Lisa Waddington, Gerard Quinn, and Eilionór Flynn, vol. 4, 169–200. Oxford: HartPublishing. ———. 2018. The European Union. In The UN Convention on the Rights of Persons with Disabilities in Practice. A Comparative Analysis of the Role of Court, ed. Lisa Waddingtion and Anna Lawson, 131–152. Oxford: Oxford University Press. Waddington, Lisa, and Andrea Broderick. 2018. Combatting Disability Discrimination and Realising Equality. A Comparison of the UN Convention on the Rights of Persons with Disabilities and EU Equality and Non-discrimination Law. Brussels: European Commission. Online .

The United Nations Convention on the Rights of Persons with Disabilities and EU Disability Law: Towards a Converging Vision of Equality? Andrea Broderick

Contents 1 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 The Theoretical Framework of the CRPD and Its Equality and Non-discrimination Norms . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.1 The Conceptualization of Disability in the CRPD: The Social-Contextual and Human Rights Models of Disability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.2 The CRPD’s Equality and Non-discrimination Norms . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.3 Inclusive Equality . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 The Impact of the CRPD on EU Equality and Non-discrimination Law . . . . . . . . . . . . . . . . . . 3.1 Fostering a Robust Conceptualization of Equality . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.2 Enhancing the Understanding of EU Law Duties and Concepts . . . . . . . . . . . . . . . . . . . . 3.3 Promoting a Purposive and Gendered Approach to Defining Disability in Non-discrimination Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 Mainstreaming Inclusive Equality in EU Disability Law Outside the Sphere of Non-discrimination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 Concluding Remarks . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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Abstract The conclusion of the United Nations Convention on the Rights of Persons with Disabilities (CRPD) by the European Union (EU) in 2010 marked a milestone in the history of EU disability equality and non-discrimination law, and also implacted on the field of EU disability law outside the sphere of non-discrimination. The CRPD is a progressive human rights treaty, the substantive provisions of which are underpinned by a model of ‘inclusive equality’, which not only views disability as arising from the interaction between individuals with impairments and societal barriers, but also seeks to make space for difference, and to give recognition to the dignity of persons with disabilities and intersectional disadvantage. The EU is bound by the CRPD to the extent of its competences, and the UN Convention has become the golden standard against which EU disability A. Broderick (*) Maastricht University, Faculty of Law, Maastricht, Netherlands e-mail: [email protected] © Springer Nature Switzerland AG 2020 T. Giegerich (ed.), The European Union as Protector and Promoter of Equality, European Union and its Neighbours in a Globalized World 1, https://doi.org/10.1007/978-3-030-43764-0_19

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laws and policies are measured. This contribution examines the four main ways in which the CRPD has already shaped, or could potentially (further) influence, EU disability law. While this contribution focuses primarily on EU equality and non-discrimination law, it also analyzes recent legislation on accessibility. It demonstrates the extent to which the CRPD can potentially foster a robust conception of equality in EU non-discrimination law; enhance the understanding of EU non-discrimination law duties and concepts; promote a gendered approach to defining disability in EU non-discrimination law; and mainstream inclusive equality in EU disability law outside the sphere of non-discrimination.

Equality is ‘the most central principle informing the position of persons with disabilities under human rights law.’1

1 Introduction The adoption of the United Nations Convention on the Rights of Persons with Disabilities (CRPD or UN Convention)2 in 2006 marked a paradigm shift in terms of the equality norm at the level of international human rights law.3 The CRPD is a far-reaching human rights treaty, the substantive provisions of which are underpinned by a wide definition of disability discrimination and a model of ‘inclusive equality.’4 This model of equality not only views disability as a social construct, recognizing that disability results from the interaction between persons with impairments and attitudinal, environmental or other barriers in society, but it also promotes a greater understanding of the societal barriers faced by marginalized groups. In December 2010, the European Union (EU) became a Party to the CRPD5 in its capacity as a regional integration organization. The UN Convention entered into force for the EU in January 2011, and from that moment forth, the EU was bound by the obligations contained in the Convention to the extent of its competences.6 This means that the EU is under a duty not to act in a manner which is incompatible with the CRPD, and it also entails an obligation on the Court of Justice of the European Union (CJEU) to interpret EU legislation in a manner which is compatible with the 1

Ventegodt Liisberg (2011), p. 21. UN Convention on the Rights of Persons with Disabilities (adopted by the UN General Assembly, 24 January 2007) UN Doc A/RES/61/106. 3 For an elaborate discussion on the model of equality contained in the CRPD, see Broderick (2015). 4 CRPD Committee (2018), para. 11. Inclusive equality is a term that had previously been coined by authors such as Colleen Sheppard—Sheppard (2004); and Sally Witcher—Witcher (2014). 5 By virtue of Article 44 CRPD (on regional integration organizations), the UN Convention was ratified by the European Union (EU) on 23 December 2010. See Council Decision 2010/48/EC concerning the conclusion of the UN Convention, OJ L 23/35 (2010). 6 See generally Ferri (2010). 2

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CRPD (insofar as possible).7 It is well established that the UN Convention forms an ‘integral part’ of EU law,8 and that the CRPD enjoys a quasi-constitutional status in the EU legal order, placing it beneath the EU Treaties but above secondary legislation.9 Therefore, the CJEU must take the UN Convention into account when interpreting EU secondary legislation.10 More generally, Favalli and Ferri state that ‘the [CRPD] has become the benchmark against which EU disability initiatives must be measured.’11 Since its entry into force, the CRPD has played a pivotal role in the advancement of disability equality in the sphere of EU law.12 This contribution examines the four main ways in which the CRPD has already shaped, or could potentially (further) influence, EU disability law. While this contribution focuses primarily on equality and non-discrimination law, it also analyzes recent EU legislation on accessibility— the European Accessibility Act (EAA)13—demonstrating the extent to which the CRPD can: (i) Foster a robust conceptualization of equality in EU non-discrimination law; (ii) Enhance the understanding of EU non-discrimination law duties and concepts; (iii) Promote a purposive and gendered approach to defining disability in EU non-discrimination law; and (iv) Mainstream inclusive equality in EU disability law outside the sphere of non-discrimination. This contribution employs legal doctrinal methodology,14 which is of a ‘descriptive, evaluative and critical’ nature.15 In that vein, it examines the most relevant EU and international human rights law sources, both primary and secondary, as well as

7

Waddington and Broderick (2018), pp. 31–32. Case 335/11 and Case 337/11 (joined), 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, in liquidation, (ECJ 11 April 2013) ECLI:EU:C:2013:222, para. 30. See also, Case 363/12, Z. v. A Government department, The Board of management of a community school, (ECJ 18 March 2014) EU:C:2014:159, para. 73. See further, Case 395/15, Mohamed Daouidi v. Bootes Plus SL, Fondo de Garantía Salarial, Ministerio Fiscal (ECJ 1 December 2016), ECLI:EU:C:2016:917, para. 40. 9 See Broderick and Ferri (2019), pp. 332–333. 10 See HK Danmark (Ring and Skouboe Werge), paras. 32 and 37–39; See Z. v. A Government department, para. 75; See also Case 356/12, Wolfgang Glatzel v. Freistaat Bayern (ECJ 22 May 2014), EU:C:2014:350, para. 70; See generally Waddington (2013). 11 Favalli and Ferri (2016), p. 549. 12 See generally Waddington (2018). 13 Council Directive 2019/882/EU on the accessibility requirements for products and services, OJ L 151/70 (2019) (EAA). 14 Tiller and Cross (2006), p. 518. 15 Broderick (2015), p. 14. 8

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academic scholarship—systematically interpreting them in order to enable an analysis of the current state of the law. This contribution is broken down into five sections. Following the introductory remarks above, Sect. 2 provides an overview of the theoretical framework of the CRPD, and of the salient features of the equality and non-discrimination norms contained in the UN Convention. Section 3 analyzes the three main ways in which the CRPD has already impacted on, or can potentially (further) influence, EU equality and non-discrimination law, while Sect. 4 examines the influence of the CRPD’s model of inclusive equality on recent EU disability law outside the sphere of non-discrimination. Section 5 contains concluding remarks.

2 The Theoretical Framework of the CRPD and Its Equality and Non-discrimination Norms This section sets the scene by analyzing the conceptualization of disability and the model of inclusive equality that underpin the CRPD’s substantive rights.

2.1

The Conceptualization of Disability in the CRPD: The Social-Contextual and Human Rights Models of Disability

The CRPD embodies what Broderick first termed the ‘social-contextual model of disability.’16 In Preamble recital (e) of the UN Convention, disability is described as an ‘evolving concept’ that results from ‘the interaction between persons with impairments and attitudinal and environmental barriers that hinders their full and effective participation in society on an equal basis with others.’17 In describing ‘disability‘ as arising from an interactive process, the CRPD rejects the ‘pure’ social model, which attracted criticisms due to the fact that it placed too much emphasis on societal barriers and neglected the role played by impairment in disabling the individual concerned.18 The CRPD’s social-contextual model can be contrasted with the medical model of disability, which, according to Broderick and Ferri, views disability as a ‘problem’ stemming from the functional limitations of the individual with a disability, rather than as a societal problem that arises from disabling and discriminatory barriers.19

16

Ibid, 77. See also Article 1 CRPD. 18 See generally Marks (1999). 19 Broderick and Ferri (2019), p. 3. 17

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The paradigm shift from the medical model to the social-contextual model of disability has been accompanied by a shift away from a social welfare approach, which viewed persons with disabilities as objects of charity and pity, towards a human rights model of disability.20 Degener argues that the human rights model builds on social approaches to disability, but that it presents several features that go further than those approaches.21 Firstly, the human rights model does not focus merely on societal barriers; rather, it places emphasis on the human dignity of persons with disabilities, a principle which is inextricably linked to that of individual autonomy. These principles are listed among the general principles of the CRPD in Article 3 and underpin many of the UN Convention’s substantive provisions. Secondly, the human rights model of disability encompasses both civil and political, as well as economic, social and cultural rights.22 Thirdly, according to Degener, it values impairments as a central part of human diversity.23 Fourthly, the human rights model makes room for ‘minority and cultural identification’, thus accounting for intersectional disadvantage.24 Finally, Degener suggests that while the social model of disability can explain the marginalization experienced by people with disabilities, it does not offer adequate solutions to overcome it, whereas the human rights model is ‘a tool to implement the CRPD’25 and to achieve social justice.26 The United Nations Committee on the Rights of Persons with Disabilities (CRPD Committee) appears to confirm these differences between the social and human rights models of disability. The CRPD Committee claims that the human rights model builds on social approaches to disability, in the sense that it recognizes disability as a ‘social construct’ and acknowledges the relevance of individual impairment,27 but it goes further than those approaches by affirming that disability is ‘one of several layers of identity.’28 Hence, ‘disability laws and policies must take the diversity of persons with disabilities into account’.29 According to the CRPD Committee, the human rights model also recognizes that human rights are interdependent, interrelated and indivisible.30

20

Broderick noted that the human rights model underpinned the CRPD in Broderick (2015), p. 79; other authors highlight the CRPD’s ‘disability human rights paradigm’—see Stein and Stein (2007); see also Degener (2017), pp. 41–59. 21 Degener (2017), pp. 41–59. 22 Degener (2017), p. 44. 23 Ibid, 47. 24 Ibid, 49. 25 Ibid, 41. 26 Ibid, 54. 27 CRPD Committee (2018), paras. 9 and 73(b). 28 Ibid, paras. 9 and 34. 29 Ibid, para. 9. 30 Ibid.

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The CRPD’s Equality and Non-discrimination Norms

The social-contextual and human rights models of disability are interlinked with the principle of non-discrimination, which has been described as the ‘leitmotif’ of the CRPD31 and as a ‘red thread’32 that runs through the UN Convention. The non-discrimination norm in Article 5 can be considered as the cornerstone of the CRPD, since it cuts across the wide material scope of the UN Convention. The CRPD’s broad prohibition of discrimination applies to both civil and political rights, such as the right to legal capacity, as well as to economic, social and cultural rights, such as the right to employment. The duty to prohibit discrimination under the CRPD includes all forms of discrimination, as is made explicit by Article 2 of the UN Convention. The broad definition of disability-based discrimination set out in Article 2 CRPD highlights that such discrimination includes the unjustified denial of a reasonable accommodation. The duty of reasonable accommodation is defined in Article 2 CRPD as: necessary and appropriate modification and adjustments [. . .] where needed in a particular case, to ensure to persons with disabilities the enjoyment or exercise on an equal basis with others of all human rights and fundamental freedoms.

The reasonable accommodation duty is subject to a defense, namely that the dutybearer is not required to provide an accommodation where to do so would impose a disproportionate or undue burden on that duty-bearer. The aim of the reasonable accommodation duty under the UN Convention is clearly stated in Article 5 (3) CRPD as being to promote equality and eliminate discrimination. According to the travaux préparatoires of the UN Convention, the Coordinator of the fourth session of the Ad-Hoc Committee, Ambassador Don MacKay (New Zealand), expressed the view that ‘reasonable accommodation’ is a single term that is being defined and that the word ‘reasonable’ was not intended to be an exception clause in and of itself.33 The nature of the reasonable accommodation duty has been clarified by the CRPD Committee in its General Comment No. 6 on equality and non-discrimination.34 In that General Comment, the Committee draws attention to the fact that the concept of ‘reasonableness’ ‘is not a means by which the costs of accommodation or the availability of resources can be assessed;’35 rather, the reasonableness of an accommodation is ‘a reference to its relevance, appropriateness and effectiveness for the person with a disability,’36 with a view to facilitating the

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Árnadóttir (2009), p. 41. Waddington (2018), p. 341. 33 Fourth Session of the Ad Hoc Committee, volume 5(10), September 03, 2004. Accessed 2 October 2019. 34 Committee on the Rights of Persons with Disabilities (2018). 35 Ibid, para. 25(a). 36 Ibid. 32

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participation of persons with disabilities in society. This mirrors the interpretation previously given to the reasonable accommodation duty in other scholarship.37 Besides the denial of reasonable accommodation, no other form of discrimination is referred to specifically in the text of the UN Convention itself. However, the CRPD Committee affirms that, in addition to covering direct discrimination, indirect discrimination, an unjustified denial of reasonable accommodation and harassment,38 the definition of ‘discrimination on the basis of disability’ can be interpreted as covering not only those who have an impairment themselves, but also those who encounter discrimination as a result of a perceived impairment or are discriminated against on account of their association with a person with a disability.39 The Committee further notes that discrimination on the basis of disability can arise with regard to ‘persons who have a disability at present, who have had a disability in the past or who have a disposition to a disability that lies in the future.’40 The latter form of discrimination relates to instances of genetic discrimination.41 Notably, the CRPD Committee has further emphasized in its General Comment No. 6 that possible grounds of discrimination include, but are not limited to, disability, health status and genetic status.42 Article 6 CRPD complements the general prohibition of discrimination in Article 5, since it is a provision of transversal application that specifically prohibits discrimination on the basis of gender and disability. It is the first binding equality provision in international human rights law to address multiple discrimination explicitly. While Article 6 refers only to ‘multiple discrimination,’ the CRPD Committee confirms that it also encompasses intersectional discrimination.43 The Committee notes that ‘multiple discrimination’44 constitutes ‘a situation where a person can experience discrimination on two or several grounds, in the sense that discrimination is compounded or aggravated.’45 Intersectional discrimination, on the other hand, ‘refers to a situation where several grounds operate and interact with each other at the same time in such a way that they are inseparable and thereby expose relevant individuals to unique types of disadvantage and discrimination.’46

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Broderick (2015), pp. 158–161. Committee on the Rights of Persons with Disabilities (2018), para. 18. 39 See also Committee on the Rights of Persons with Disabilities (2018), para. 20. 40 Committee on the Rights of Persons with Disabilities (2018), para. 20. 41 See generally De Paor and O’Mahony (2016). See also De Paor and Ferri (2015). 42 Committee on the Rights of Persons with Disabilities (2018), para. 21. 43 Ibid, para. 36. 44 Fredman makes a distinction between consecutive (or sequential) multiple discrimination and additive multiple discrimination. Fredman (2016), p. 7. 45 Committee on the Rights of Persons with Disabilities (2018), para. 19. 46 Ibid. 38

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Inclusive Equality

As noted above, the CRPD embodies the human rights model of disability. Models of disability are often mirrored in corresponding models of equality. In that regard, the human rights model can be aligned with the model of ‘inclusive equality’ that underpins the UN Convention’s provisions. According to the CRPD Committee, inclusive equality goes even further than substantive equality (which focuses not only on formal equal treatment but also on uncovering covert forms of discrimination), in that inclusive equality embraces: (i) a fair redistributive dimension: to address socio-economic disadvantages; (ii) a recognition dimension: to combat stigma, stereotyping, prejudice and violence, and to give recognition to the dignity of human beings and their intersectionality; (iii) a participative dimension: to reaffirm the social nature of people as members of social groups and the full recognition of humanity through inclusion in society; and (iv) an accommodating dimension: to make space for difference as a matter of human dignity.47 An essential component of ensuring inclusive equality is guaranteeing equal access for persons with disabilities to facilities, goods and services, through the adoption of accessibility measures that are based on a Universal Design (UD) approach. UD considers the diverse needs and abilities of all individuals throughout the design process—not only people with disabilities, but also those with functional impairments, elderly people, and others.48 Article 9 CRPD requires Parties to the UN Convention, including the EU, to adopt all measures necessary to ensure accessibility of the physical environment, transportation, information and communication technologies (ICT), and other facilities and services open or provided to the public, on a progressive basis. The text of Article 9(2)(b) and the interpretation provided by the CRPD Committee make it clear that Parties to the Convention must also ensure that the goods, services and facilities of private entities are accessible.49 According to Ferri and Favalli, ‘this interpretation of Article 9 is premised on the need to promote and fulfil the principles of non-discrimination and equality.’50 Article 9 is interlinked with the Convention’s equality and non-discrimination norm, as is made explicit by the text of Article 9 itself, which states that Parties to the Convention should take appropriate measures to ensure that persons with disabilities

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Committee on the Rights of Persons with Disabilities (2018), para. 11. For a discussion on the conceptual framework underpinning Universal Design (UD), see Hamraie (2016). 49 See CRPD Committee (2014), para. 13. See also CRPD Committee (2013), para. 10(2)(a). 50 Ferri and Favalli (2018), p. 47. 48

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have access to facilities, goods and services on an equal basis with others.51 According to the CRPD Committee, the accessibility obligation in Article 9 CRPD can be viewed as a vital tool in ensuring the equalization of opportunities for persons with disabilities,52 and as ‘a precondition and a means to achieve’ de facto equality for individuals with disabilities.53 Accessibility obligations complement the reasonable accommodation duty in the UN Convention. While the accessibility duty is generalized (group-based) and anticipatory (not triggered by an individual request),54 the reasonable accommodation duty is an individualized immediate duty that is applicable from the moment that an accommodation is requested. An unjustified failure to provide reasonable accommodation (i.e. where it is not shown to be a disproportionate/undue burden for the entity concerned) is a form of discrimination under Articles 2 and 5 of the UN Convention; by contrast, the accessibility duty under the CRPD is progressively realizable. In that regard, Parties to the CRPD are required to use the maximum of their available resources to implement accessibility gradually.55 Having delineated above the models of equality and disability that underpin the CRPD and having outlined the various elements of the prohibition of discrimination in the UN Convention, Sect. 3 analyses the impact of the CRPD on EU equality and non-discrimination law.

3 The Impact of the CRPD on EU Equality and Non-discrimination Law This section analyzes three main ways in which the CRPD has already influenced, or could potentially (further) influence, EU equality and non-discrimination law.

3.1

Fostering a Robust Conceptualization of Equality

The first way in which the CRPD has already shaped, or can potentially continue to shape, EU equality and non-discrimination law is by fostering a more robust conceptualization of equality, thereby stimulating a deeper interpretation of the non-discrimination norm.

51

CRPD, Article 9(1) [emphasis added]. See CRPD Committee (2014), para. 1. 53 CRPD Committee (2018), para. 40. 54 Waddington and Broderick (2016), p. 45. 55 Charitakis (2018), pp. 45–62. See the criticisms of the CRPD Committee’s General Comment No. 2 for its failure to allude specifically to the progressively realizable nature of Article 9 CRPD in its General Comment No. 2 on Accessibility—Lawson (2018). 52

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Article 2 of the Employment Equality Directive (Directive 2000/78)56 explicitly covers four forms of discrimination, namely direct discrimination, indirect discrimination, harassment and an instruction to discriminate. The explicit prohibition of discrimination in EU law is more limited than that of the CRPD, as described above in Sect. 2; however, it has been expanded through the case law of the CJEU. In Coleman,57 the CJEU ruled that disability discrimination by association is a form of discrimination covered by EU law, albeit that this type of discrimination is not included in the text of the Directive itself. Significantly, the Coleman case was heard by the CJEU shortly before the CRPD came into force. In that case, the CJEU had to determine whether the protection from discrimination contained in the Directive applied to a mother who argued that she had been the victim of direct discrimination and harassment by association at her workplace, on account of her relationship with her son who has a disability. Although the Court did not refer to the UN Convention in its judgment, it is nonetheless quite evident that the ongoing discussions at EU level regarding the conclusion of the CRPD affected the outcome of the case. The CRPD’s prohibition of disability-based discrimination is broad, as outlined above in Sect. 2. Trömel notes that legislation (such as the CRPD) prohibiting discrimination on the basis of disability ‘has to put the focus not on whether the person who has been discriminated [against] has or not a (legally certified) disability, but on whether the situation faced by the person is a discriminatory situation based on disability.’58 This reflects the Opinion of Advocate General (AG) Poiares Maduro in the Coleman case, an Opinion which refers to the CRPD and appears to have influenced the CJEU in rendering its judgment in the case.59 Affirming that the Directive operates at the level of grounds of discrimination, and drawing on academic scholarship,60 AG Poiares Maduro encouraged the Court to take a contextual approach to the interpretation of the Employment Equality Directive, by placing the requirements of equal treatment and non-discrimination in the Directive ‘within a broader human rights context.’61 In addition to referring to Recital 4 of the Directive (which contains the ‘universal right’ to equality before the law and protection against discrimination), as well as the Charter of Fundamental Rights of the EU (EU CFR),62 the AG cited a ‘recent development in the area of international human rights, namely the adoption of the CRPD.’63 In that regard, the AG 56

Council Directive 2000/78/EC establishing a general framework for equal treatment in employment and occupation (Employment Equality Directive), OJ L 303/16–22 (2000). 57 Case 303/06, Coleman v. Attridge Law (ECJ 17 July 2008), ECLI:EU:C:2008:415. See generally Waddington (2009), pp. 665–681. 58 Trömel (2009), p. 124. 59 ECJ, C-303/06, Opinion of Advocate General Poiares Maduro, 31 January 2008, ECLI:EU: C:2008:415; See Clifford (2011), footnote 48. See Waddington and Broderick (2018), pp. 74–75. 60 In that regard, the Advocate General cited McCrudden (2005). 61 See Opinion of Advocate General Poiares Maduro, footnote 4. 62 On the Charter of Fundamental Rights of the European Union (EU CFR), see, among many others, Schütze (2012), pp. 422–428. 63 Opinion of Advocate General Poiares Maduro, footnote 4.

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specifically mentioned the prohibition of disability-based discrimination in Article 5 (2) CRPD in the context of the issues raised in Coleman.64 In addition to encouraging the CJEU to adopt a contextual approach to interpretation of the non-discrimination norm in EU secondary legislation, AG Poiares Maduro urged the Court to take a teleological approach—in other words, not only to take into account the actual wording of the Directive but also the values underlying the principle of equality, in order to determine ‘what equality requires’ in a given case.65 According to the AG, the values of human dignity and personal autonomy underpin the EU law prohibition of discrimination—concepts which also feature as General Principles in Article 3 of the UN Convention and which underly the human rights model of disability, as highlighted in Sect. 2 above. The AG posited that, ‘at a bare minimum, human dignity entails the recognition of the equal worth of every individual.’66 This interpretation of the values underlying the EU law definition of discrimination appears to tally with those underlying Article 5 CRPD, as interpreted elsewhere.67 Drawing on Liebenberg’s analysis of the application of the non-discrimination principle in the context of socio-economic rights, the CRPD has been interpreted as requiring ‘full acknowledgment of the racial, gender, social, economic, cultural and other differences between groups in society.’68 Accordingly, as Liebenberg affirms, ‘the quest for equal worth or dignity is not a quest for uniformity, but a quest to eliminate the disadvantages and inferior status that attach to membership of particular groups.’69 AG Poiares Maduro noted that ‘one way of undermining the dignity and autonomy of people who belong to a certain group is to target not them, but third persons who are closely associated with them and do not themselves belong to the group.’70 According to the AG, a ‘robust conception of equality entails that these subtler forms of discrimination should also be caught by anti-discrimination legislation, as they, too, affect persons belonging to suspect classifications.’71 In fostering this robust conceptualization of equality in Coleman, namely that direct discrimination and harassment by association are also covered by the prohibition of discrimination in the Employment Equality Directive, the Court (like the AG) adopted a teleological approach to interpretation of the Directive. According to the Court, the Directive’s objectives (as outlined in Article 1 and recital 37 of the Preamble) are not only to put into effect in the Member States the principle of equal treatment, but also to create ‘a level playing field’ with regard to equality in employment and occupation in the

64

Ibid. Ibid, para. 8. 66 Ibid. 67 Broderick (2015), p. 225. 68 Ibid, citing Liebenberg (2005), p. 14. 69 Ibid. 70 Opinion of Advocate General Poiares Maduro, para. 12. 71 Ibid. 65

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EU.72 Creating a level playing field regarding disability equality requires targeting the social-contextual disadvantage faced by people with disabilities in the context of employment and occupation. This arguably necessitates—within the sphere of existing EU competences—expanding the forms of discrimination covered under EU law to reflect those contained in the CRPD, as well as the adoption of positive measures; although, it is notable in that regard that disability equality and combating disability discrimination are areas of shared competence between the EU and its Member States. Waddington remarks that the Court’s judgment in Coleman ‘is to be welcomed,’ but she cautions against a broad interpretation, noting that ‘it may be premature to conclude from the judgment that discrimination by association is prohibited in all situations, on all grounds, and for all forms of discrimination.’73 Notwithstanding this note of caution, the Coleman case clearly demonstrates that fostering a more robust conceptualization of equality under EU law can give rise to a deeper interpretation of the non-discrimination norm and, furthermore, that the CRPD can play a role in this regard. It has been argued that the Coleman case is an example of a ‘jurisprudential innovation’ that serves to guarantee the principle of effectiveness in non-discrimination jurisprudence.74 This is potentially relevant to provisions of EU law other than secondary EU legislation. In that connection, the Charter of Fundamental Rights of the EU (EU CFR or Charter) can be said to endorse a robust, substantive, conceptualization of equality. It has the same legal status as the EU Treaties, by virtue of Article 6(1) of the Treaty on European Union (TEU), making respect for fundamental rights ‘a legal requirement’ and ‘a condition of the lawfulness of EU acts.’75 Article 21(1) EU CFR lists disability as one of the prohibited grounds of discrimination, and Article 26 EU CFR supplements the principle of non-discrimination by giving recognition to the right of persons with disabilities to benefit from measures designed to ensure their independence, social and occupational integration and participation in the life of the community. Under the potential influence of the CRPD, the Charter provisions on equal treatment could foster a deeper interpretation of the prohibition of non-discrimination in the Employment Equality Directive than they have done to date. One area where this is relevant, for instance, is with regard to the EU law protection against discrimination on the ground of future disability (although to date the CJEU has not been confronted with the question as to whether the protection

72

Case 303/06, Coleman v. Attridge Law, (ECJ 17 July 2008), ECLI:EU:C:2008:415, para. 47. Waddington (2009), pp. 671–672. By contrast, Ellis and Watson remark that the Court’s emphasis on grounds of discrimination ‘clearly suggests that the inclusion within the legislative aim of discrimination by association applies to all the types of discrimination proscribed by EU law, but this has yet to be confirmed by the CJEU’—Ellis and Watson (2012), p. 147. 74 Xenidis (2017), p. 7. 75 De Paor and Ferri (2015), p. 30. 73

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afforded by the Directive can be extended to cover genetic discrimination).76 Notably, Article 21(1) EU CFR prohibits discrimination based on ‘genetic features’, and while the Employment Equality Directive itself does not prohibit discrimination based on genetic features—or future disability—it could be argued that, in order to give effect to the robust conceptualization of equality enshrined in the Charter, the Employment Equality Directive should be interpreted as including discrimination on the ground of genetic makeup within the existing ground of disability.77 De Paor and Ferri argue that ‘the conclusion of the CRPD by the EU provides an added dimension to the debate’ regarding the regulation of genetic information, and that the UN Convention ‘arguably acts as an impetus to action in this area and as an international standard from which to view the issue of disability discrimination.’78 In view of the fact that the CRPD protects against genetic discrimination (as outlined above in Sect. 2), it is arguable that the UN Convention could serve to guide the Court to align the protection afforded by the principle of equality contained in the Charter with that contained in the Employment Equality Directive.79 Whether the CJEU will decide to move in that direction is unclear. Furthermore, it is doubtful whether the CRPD could serve to enhance the protection afforded by Article 26 EU CFR, since that has been classified by the CJEU as a principle rather than a right, in accordance with Article 51 and Article 52 (5) of the Charter.80 This signifies that it is simply intended to guide the EU institutions when they legislate; however, it does not oblige them to act and is not directly enforceable, as highlighted by the CJEU in the Glatzel judgment.81 As Ward points out: The ruling of the CJEU in Glatzel on the impact of Article 26 of the Charter on disputes concerned with disability discrimination and equal treatment minimizes the provision’s role by placing fuller emphasis on the absence of further legislative measures that might be taken with respect to Article 26 but which had not yet occurred. This arguably diminished the impact in law Article 26 of the Charter might otherwise have had.82

It is notable that De Paor and Ferri remark that ‘even by exploiting the potential of interpretation of existing legislation by including discrimination on grounds of genetic makeup in the wider ground of (future) disability, the Employment Equality Directive offers a low degree of protection due to its limited scope’—De Paor and Ferri (2015), p. 31. See further discussion on this point, De Paor (2017), pp. 238–241. 77 Waddington and Broderick (2018), pp. 77–78. See De Paor and Ferri (2015), p. 29. See also Gerards and Janssen (2006), pp. 372–374. 78 De Paor and Ferri (2015), p. 29. 79 Notably, a broad understanding of the prohibition of discrimination is reflected in the proposal for a new equality directive put forward by the Commission in 2008 (whose approval and entry into force ‘should not be expected too soon’, according to Favalli and Ferri (2016), p. 548), but genetic discrimination is not specifically covered by the proposal. 80 Case 356/12, Wolfgang Glatzel v. Freistaat Bayern (ECJ 22 May 2014), ECLI:EU:C:2014:350, para. 75. See generally Krommendijk (2014). 81 Case 356/12, Wolfgang Glatzel v. Freistaat Bayern (ECJ 22 May 2014), ECLI:EU:C:2014:350. 82 Ward (2018), p. 41. 76

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The Glatzel case therefore represents ‘a lost opportunity to explore the differences in the protection afforded by the Framework Equality Directive and the general principle of equal treatment,’ according to Ward.83

3.2

Enhancing the Understanding of EU Law Duties and Concepts

The second way in which the CRPD has already shaped, and can potentially continue to shape, EU equality and non-discrimination law is by enhancing the understanding of EU law concepts and obligations that pertain to disability non-discrimination law. To date, the CJEU has read both the concept of ‘positive action’84 and the duty of reasonable accommodation85 in light of the CRPD. With regard to the latter, Lawson notes that, enshrining the duty of reasonable accommodation at the EU level already represented ‘a significant deepening and enriching of the principle of equal treatment which underlies [EU] equality law.’86 There is no doubt that the CRPD has played a role in further deepening the understanding of the concept of ‘reasonable accommodation’ at the EU level. This can be seen from the HK Danmark (Ring and Skouboe Werge) case.87 The express purpose of the reasonable accommodation duty in EU law is stated as being ‘to guarantee compliance with the principle of equal treatment in relation to persons with disabilities.’88 According to the proposal for the Employment Equality Directive, the principle of equal treatment simply corresponds to a prohibition of discrimination;89 however, the duty of reasonable accommodation in the CRPD provided some clarification with respect to the material scope of Article 5 of the Employment Equality Directive in HK Danmark (Ring and Skouboe Werge). In that case, the CJEU held that the concept of ‘reasonable accommodation’ in Directive 2000/78 was not limited to the stated aim of that provision, namely ensuring equal treatment; rather, the Court affirmed that the duty is intended to eliminate the various barriers that hinder full and effective participation of people with disabilities in professional life. That objective also forms the basis of the CRPD’s accommodation

83

Ibid. In Milkova, the CJEU read the purpose of Article 7(2) of Directive 2000/78 in light of the CRPD—Case 406/15 Milkova. (ECJ 9 March 2017), ECLI:EU:C:2017:198, paras. 47–48. 85 See generally HK Danmark (Ring and Skouboe Werge). 86 Lawson (2009), p. 93. See generally Waddington (2007). 87 Case 335/11 and Case 337/11 (joined), 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, in liquidation, (ECJ 11 April 2013) ECLI:EU:C:2013:222. 88 Article 5, Directive 2000/78. 89 Proposal for a Council Directive of 2 July 2008 on implementing the principle of equal treatment between persons irrespective of religion or belief, disability, age or sexual orientation. https://eurlex.europa.eu/legal-content/EN/TXT/HTML/?uri¼LEGISSUM:em0008&from¼EN. Accessed 2 October 2019. 84

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duty,90 albeit that the CRPD’s material scope is far wider than that of the Employment Equality Directive, since the accommodation duty in the UN Convention covers all civil and political, as well as economic, social and cultural rights. While it was the definition of disability that lay at the heart of the Court’s judgment in the HK Danmark ruling, the issue of reasonable accommodation arose in the context of individuals who had been absent from work on sick leave, and who were subsequently dismissed from their employment. In that connection, the CJEU ruled that a reduction in working hours may be deemed a reasonable accommodation in a situation where the reduction makes it possible for the worker to continue in professional life. Notably, in the context of relevant international law, the Court referred to the concept of ‘disability’ in Preamble recital (e) of the CRPD. It also referred to the purpose of the UN Convention (being that of promoting, protecting and ensuring the full and equal enjoyment of all human rights and fundamental freedoms by all persons with disabilities, and promoting respect for their inherent dignity), as well as the definition of reasonable accommodation in the CRPD.91 In interpreting the reasonable accommodation duty in the Employment Equality Directive, the CJEU went beyond the types of measures envisaged in recital 20 of the Preamble to the Directive. Drawing on Article 2 CRPD, the Court held that ‘not only material but also organisational measures’ are covered under the EU law concept of ‘reasonable accommodation’.92 It is notable that the CRPD’s definition of the reasonable accommodation duty has not only influenced existing EU law, but has also impacted on proposed EU law. As Waddington highlights, the 2008 proposal for a non-discrimination directive, inter alia on the ground of disability in the fields of social protection including social security, healthcare and social housing, education, and access to and supply of goods and services (including housing) has also been influenced by the CRPD’s definition of reasonable accommodation. Article 4a of the latest (2019) version93 of the proposed directive contains the following definition of reasonable accommodation: [R]easonable accommodation means necessary and appropriate modification and adjustments not imposing a disproportionate burden, where needed in a particular case, to accommodate the specific needs of a person with a disability so as to allow that person access on an equal basis with others to the specific social protection measure, educational activity, good or service concerned.94

Remarking on a previous (2018) version of the proposed directive,95 containing the same definition of discrimination as is in the latest (2019) version, Waddington

90

Broderick (2015), pp. 158–161. See paras. 3–5 of HK Danmark (Ring and Skouboe Werge). 92 See paras. 3–5 of HK Danmark (Ring and Skouboe Werge). 93 Version of 26 June 2019, document no. 10740/19. 94 Ibid, Article 41. 95 Version of 14 February 2018, 6073/18. 91

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noted that ‘part of the definition that was eventually included in the proposal was taken word for word from Article 2 CRPD, indicating that the EU drew on the Convention when addressing this issue.’96 In addition, as previously noted by Bell when the first proposal of the directive was issued, a ‘genuine novelty’ of the proposed non-discrimination directive lies in the fact that it conceptualizes a ‘denial of reasonable accommodation’ as a form of discrimination, in compliance with the CRPD.97 In light of the fact that the CRPD’s reasonable accommodation duty has already clarified the understanding of the reasonable accommodation duty in EU law and has influenced proposed EU secondary legislation, there is further potential for the UN Convention, and in particular the CRPD Committee’s interpretation of the Convention, to deepen the understanding of the accommodation duty under the Employment Equality Directive. This is particularly so with regard to the meaning of the ‘reasonableness’ of accommodation measures. As highlighted in Sect. 2 above, the reasonableness of an accommodation has been interpreted not as a means by which the costs of an accommodation or the availability of resources can be assessed; rather, it has been interpreted in terms of the ‘relevance, appropriateness and effectiveness’ of the particular measure for the individual concerned.98 However, as pointed out elsewhere, the CJEU (in HK Danmark) refers to the reasonableness of accommodation measures ‘in exactly the terms which the CRPD Committee seeks to avoid,’99 namely in financial terms, likening the concept of ‘reasonableness’ to that of ‘disproportionate burden.’100 The model of inclusive equality that underpins the CRPD implicitly requires that duty-bearers follow a certain process of dialogue and balancing of interests in complying with the reasonable accommodation duty, and in determining what might be a ‘reasonable’ measure in the particular circumstances of a case. This is evident from General Comment No. 6 of the CRPD Committee.101 While it is acknowledged that general comments of international human rights treaty bodies are not binding on Parties to the UN Convention, not least on the CJEU itself, the Court can (potentially) learn lessons about the notion of ‘reasonableness’ under international human rights law, in order to streamline its understanding of the concept of ‘reasonable accommodation’ with that contained in the CRPD.

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Waddington (2018), p. 353. Bell (2009), p. 10. 98 Committee on the Rights of Persons with Disabilities (2018), para. 25(a). On the various elements of the reasonable accommodation duty, see further Broderick (2015), pp. 158–161. 99 Waddington and Broderick (2018), p. 72. 100 See HK Danmark (Ring and Skouboe Werge), para. 58. 101 See Committee on the Rights of Persons with Disabilities (2018), para. 24(b) and 25(a). 97

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Promoting a Purposive and Gendered Approach to Defining Disability in Non-discrimination Law

The third way in which the CRPD can potentially impact on EU equality and non-discrimination law is through promoting a purposive and gendered approach to defining disability, thereby addressing the intersectional disadvantage experienced by women with disabilities. As outlined in Sect. 2 above, the CRPD’s prohibition of multiple discrimination in Article 6 has been interpreted to include intersectional discrimination, whereas the Employment Equality Directive does not explicitly prohibit multiple or intersectional discrimination involving two or more grounds.102 To date, the CRPD has not played a role in moving the CJEU beyond single-axis analysis with regard to claims of discrimination on more than one ground. Furthermore, as noted by several authors, secondary EU law poses great challenges when it comes to incorporating multiple and intersectional discrimination explicitly within its equality and non-discrimination framework.103 This is due, in part, to ‘the fragmentation in the way in which EU law addresses discrimination, with a number of instruments addressing different grounds and with different material scope as well as a complex system of justifications that is differentiated in respect of each ground.’104 In certain relatively recent judgments, both outside of the disability context (the Parris105 judgment) and within the disability context (the Z case), the Court has shown itself very reluctant to move beyond single-axis discrimination analysis. Xenidis claims that ‘the Court’s response to AG Kokott’s proposition to recogni[z]e and condemn intersectional discrimination in Parris has been negative, thus closing the door to advancing non-discrimination through doctrinal innovations.’106 In addition, in the Z judgment, which concerned a woman who was unable to become pregnant due to not having a uterus and who was refused a period of paid leave following the birth of a child by means of surrogacy, the Court was confronted with a clear case of intersectional discrimination—on the grounds of sex and disability—but it declined to address the situation from the perspective of the two grounds taken together.107 In spite of this, it is arguable that the CRPD could influence the CJEU to adopt a so-called gendered approach to disability, thereby (indirectly) enabling the

102

It should be noted that the latest publicly available version of the proposal for the new equality directive refers quite extensively to multiple discrimination—Version of 26 June 2019, document no. 10740/19. 103 See generally Xenidis (2017, 2018); See also Fredman (2016), pp. 62–65. 104 Waddington and Broderick (2018), p. 67. See also Hendricks (2010), p. 21; Xenidis (2018); Bell (2009), p. 9. 105 Case 443/15, David L. Parris v. Trinity College Dublin and Others (ECJ 24 November 2016), ECLI:EU:C:2016:897. 106 Xenidis (2017), p. 10. See recent literature, such as Atrey (2019), which discusses why intersectional discrimination should be a unique category in non-discrimination law. 107 Xenidis (2018), p. 69.

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intersectional disadvantage experienced by claimants who are women with disabilities to be taken into account in EU law. This would, however, firstly require the Court to find a practicable definition of disability for the purposes of non-discrimination law or, at the very least, to adjust the existing definition by paying due attention to gender. In HK Danmark, ‘disability’ was defined as encompassing: a limitation which results in particular from physical, mental or psychological impairments which in interaction with various barriers may hinder the full and effective participation of the person concerned in professional life on an equal basis with other workers.108

While this definition moved away from the medically-oriented definition put forward by the court in Chacón Navas,109 the application of the definition of disability developed by the Court in HK Danmark, and repeated in subsequent cases,110 has been criticized by many authors, who argue that it does not respect the social-contextual and human rights models purported by the CRPD.111 Apart from the fact that the definition does not take into account intersectional disadvantage, Waddington and Broderick claim that by requiring that an individual experiences a limitation directly related to his or her impairment, ‘the Court seems to exclude from the definition of disability individuals who are disabled by sociallycreated barriers, such as false assumptions and prejudices about an individual’s ability.’112 With regard to the gendered aspects of disability, Schiek argues that EU disability discrimination law has traditionally drawn on a model of equality which operates to exclude women with disabilities. Schiek highlights that the definition of disability as developed by the CJEU in its initial six disability discrimination cases has tended to ‘move impairments suffered disproportionately by women beyond the reach of

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HK Danmark (Ring and Skouboe Werge), para. 38. Case 13/05 Chacón Navas v. Eurest Colectividades SA, (ECJ 11 July 2006) ECLI:EU: C:2006:456. 110 The concept/definition of disability has been addressed by the CJEU in the following cases: Case 13/05, Chacón Navas v. Eurest Colectividades SA (ECJ 11 June 2006), ECLI:EU:C:2006:456; Case 303/06, Coleman v. Attridge Law (ECJ 17 July 2008), ECLI:EU:C:2008:415; Cases 335/11 and 337/11 (joined), 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 (Ring and Skouboe Werge), (ECJ 11 April 2013), ECLI:EU: C:2013:222; Case 363/12, Z. v. A Government department, The Board of management of a community school), (ECJ 18 March 2014), ECLI:EU:C:2014:159; Case 354/13, FOA acting on behalf of Karsten Kaltoft (ECJ 18 December 2014), ECLI:EU:C:2014:2463; Case 395/15, Daouidi v. Bootes Plus SL and Others (ECJ 1 December 2016), ECLI:EU:C:2016:917; Case 270/16, Ruiz Conejero (18 January 2018), ECLI:EU:C:2018:17; Case 406/15, Milkova (ECJ 9 March 2017), ECLI:EU:C:2017:198; and Case C-397/18 DW v. Nobel Plastiques Ibérica SA (ECJ 11 September 2019), ECLI:EU:C:2019:703. 111 For instance, O’Brien (2014), Favalli and Ferri (2016), Schiek (2016) and Waddington and Broderick (2018). 112 Waddington and Broderick (2018), p. 11. See the Kaltoft judgment in that regard. 109

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disability discrimination law.’113 According to Schiek, this can be seen in cases such as HK Danmark, in which the CJEU’s ‘reluctant approach towards acknowledging long-term conditions as impairment giving rise to disability ensures that conditions more frequently occurring in women are less prone to bring their bearers within the fold of discrimination law;’ and in Kaltoft, where the issue as to whether a child minder could be dismissed because of obesity is ‘of more practical relevance to women than to men’ due to the number of women who carry out such roles.’114 Schiek also purports that the Court has clearly struggled with finding a definition of disability which reacts to impairment and the social conditions which turn impairment into disability.115 In fact, she claims that neither the social model of disability nor the Court’s case law ‘avoids the intersectionality trap.’116 She argues that a shift away from a medical to a social model of disability ‘is not the solution for defining disability for the purposes of discrimination law;’ instead, ‘the Court must find a workable, purposive definition of disability’—that is, according to Schiek, one that ‘can be derived from the purposes of discrimination law. Those purposes are: protecting against the harm of exclusion on the grounds of ascribed otherness; protecting individuation (which requires both combatting stereotypes and recognizing the medical element of disability); and respecting difference (which requires guaranteeing equality in practice).117 This proposal tallies well with the human rights model of disability that underpins the CRPD: in the first instance, protecting against the harm of exclusion is reflected in the very purpose of the CRPD, which seeks to eliminate barriers that hinder full and effective participation in society on an equal basis with others. In the second instance, the aim of protecting individuation neatly takes into account the gendered aspects of the human rights model (reflected in the Preamble and Article 6 of the CRPD), the recognition dimension of inclusive equality (which targets stereotypes), and the social-contextual model of disability that recognizes the relevance of both social barriers and impairments in creating disability. Thirdly, the aim of respecting difference reflects the tenets of the human rights model, which requires the provision of measures such as reasonable accommodation, to take account of individual difference. According to Fredman, more recent disability-related cases ‘could be understood as leaving open the opportunity for more visibility of intersectional issues, if they are properly framed.’118 Fredman explains that there is potential for a ‘capacious view’ of disability, namely one under which all aspects of an individual’s identity are taken into account within one identity ground.119 Fredman cites examples of where the

113

Schiek (2016), p. 62. Ibid, pp. 60–61. 115 Ibid, p. 56. 116 Ibid, p. 62. 117 Ibid, pp. 50–51 and 62. 118 Fredman (2016), p. 77. 119 Ibid, p. 10. 114

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CJEU has taken an expansive or ‘capacious’ view of existing grounds, ‘by acknowledging that even within a single ground, multiple intersecting power relations can be addressed.’120 Particularly illuminating in this context, according to Fredman, are the Coleman and Kaltoft judgments. As highlighted above, the Coleman case concerned a mother who claimed that she was subjected to direct discrimination and harassment by association on account of her relationship with her son who has a disability. As Fredman outlines, the finding that the complainant was subjected to a detriment because of her need to care for her child highlights ‘the vertical, diagonal and layered relationships of power which intersect to compound disadvantage.’121 Kaltoft, on the other hand, related to a childminder who alleged that he had been discriminated against on the ground of obesity when he was dismissed from his job. In deciding whether obesity was covered under the EU law definition of discrimination (since it is not expressly mentioned as a ground of discrimination in the Employment Equality Directive), the Court reiterated that ‘the scope of Directive 2000/78 should not be extended by analogy beyond the discrimination based on the grounds listed exhaustively in Article 1 thereof.’122 As Fredman points out, the Kaltoft judgment demonstrates that the ground of disability was ‘sufficiently capacious’123 to include obesity within the EU law definition of discrimination, where ‘the obesity of the worker concerned entails a limitation which results in particular from physical, mental or psychological impairments that in interaction with various barriers may hinder the full and effective participation of that person in professional life on an equal basis with other workers, and the limitation is a long-term one.’124 According to Fredman, Kaltoft demonstrates that there is potential under EU law ‘for including intersectional insights, if these are fully brought into the frame,’125 since childminding is predominantly a female profession, and obesity has been found to have more negative effects on women in the workplace than on men.126 Moreover, Fredman argues that incorporating compounded relationships of disadvantage, such as those experienced by women, in a disability claim has the advantage of permitting a claim for reasonable accommodation, which is currently not available for other grounds. Particularly importantly, according to Fredman, is the fact that the HK Danmark case itself suggests that the accommodation duty ‘can be shaped to address such compound manifestations of disability, such as gendered disability, for example by requiring reduced or flexible hours.’127

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Ibid, p. 87. Ibid, p. 77. 122 Kaltoft, para. 36. 123 Fredman (2016), p. 79. 124 Kaltoft, para. 59. 125 Fredman (2016), p. 79. 126 Ibid. 127 Ibid. 121

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The CRPD is sufficiently capacious to encourage the CJEU to adopt an intersectional approach to disability, for several reasons. In the first instance, its evolving definition of disability leaves enough scope to deal with forms of intersectional disadvantage. The capacious perspective on disability is confirmed by Article 6 CRPD (on women with disabilities) and Article 7 (on children with disabilities), read in conjunction with the UN Convention’s Preamble, which acknowledges the ‘difficult conditions faced by persons with disabilities who are subject to multiple or aggravated forms of discrimination on the basis of race, colour, sex, language, religion, political or other opinion, national, ethnic, indigenous or social origin, property, birth, age or other status.’ The Preamble of the CRPD also encourages gender mainstreaming in all efforts to promote the full enjoyment by people with disabilities of human rights and fundamental freedoms. Fredman argues that the UN Convention’s definition of disability as an interaction between impairments and social or ‘other barriers’ which hinders full participation could take into account barriers due to other grounds, such as age, sexual orientation, or racial and ethnic origin.128 Moreover, according to Atrey, Article 17 CRPD, which seeks to protect the integrity of persons with disabilities and accords them a right to equal respect for their physical and mental integrity, is of particular interest in the context of intersectional disadvantage. Atrey claims that the concept of ‘integrity’ signifies a conception of a person as a whole, including all their characteristics rather than just their disability, and that this can form the basis of a wider theory of intersectionality which pays regard to the integrity of all individuals and therefore includes their multiple characteristics.129 Thus, it is evident that while the CJEU is not currently sensitive to intersectional inequalities, more attention to the provisions of the CRPD and its human rights model of the disability could encourage the Court to take into account the gendered aspects of disability discrimination. Having reflected (in this section) on the three main ways in which the CRPD has already impacted, and could potentially impact further, on EU equality and non-discrimination law, Sect. 4 of this contribution analyzes the manner in which the CRPD’s model of inclusive equality can advance disability equality outside of the sphere of EU non-discrimination law.

4 Mainstreaming Inclusive Equality in EU Disability Law Outside the Sphere of Non-discrimination The fourth and final way in which the CRPD’s vision of disability equality has impacted on EU law is by mainstreaming the tenets of inclusive equality in legislative initiatives pertaining to accessibility. This development outside the sphere of equality and non-discrimination law is important to highlight, since as Schiek notes, 128 129

Ibid, p. 36. See Atrey (2015), p. 1519.

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the limits of disability discrimination law are evident, in that non-discrimination law is ‘clearly unable to bring about the desired participation of disabled persons in all areas of life.’130 Therefore, in line with the human rights-based model of disability underlying the CRPD, ‘a range of rights and policies are required to ensure that disabled people are included and able to fully participate in society on equal terms.’131 Ferri and Favalli assert that ‘the [CRPD] not only situates [digital] accessibility within the realm of human rights, but also qualifies it as a necessary precondition for equality, as well as acknowledging its importance as a tool for participation and social inclusion.’132 Since the date of entry into force of the CRPD, the EU has undertaken a series of soft and hard law actions with the specific aim to implement the CRPD’s accessibility requirements. In 2015, the European Commission drafted a proposal for an accessibility act related to a specific set products and services,133 and in March 2019, the European Parliament approved the EAA, otherwise known as the Directive of the European Parliament and of the Council on the accessibility requirements for products and services. With a legal basis rooted in Article 114 of the Treaty on the Functioning of the EU (TFEU), the purpose of the EAA is twofold: (i) to improve the proper functioning of the internal market through the harmonisation of laws, regulations and administrative provisions of the Member States related to certain accessible products and services; and (ii) to facilitate the implementation of Article 9 CRPD by setting out common Union rules on accessibility.134 The Directive is premised on ensuring equality and inclusion in society. This can be seen in the definition of ‘persons with disabilities’ contained in the Directive, which is in line with the CRPD.135 Furthermore, the Preamble of the Directive states that it aims to promote ‘full and effective equal participation by improving access to mainstream products and services that, through their initial design or subsequent adaptation, address the particular needs of persons with disabilities.’136 Recalling the tenets of the model of inclusive equality that underpins the CRPD, set out in Sect. 2 above, it can be argued that four specific dimensions of that model of equality are evidenced (to varying degrees) in the EAA’s provisions.137

130

Schiek (2016), p. 63. Schiek (2016), p. 63. 132 Ferri and Favalli (2018), p. 48. 133 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 of 2 December 2015. 134 EAA, Preamble, paras. 15 and 16. 135 EAA, Preamble, para. 3. 136 Ibid. 137 The next few paragraphs draw on a forthcoming chapter by Broderick in Pavia University Press (forthcoming, 2020). 131

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In the first instance, the accommodating dimension of inclusive equality requires Parties to the Convention to make space for difference, through the adoption of positive measures that are based on the human rights principles contained in the CRPD. The EAA clearly adopts an accommodating perspective with regard to accessibility. In the first instance, it has a wide personal scope, obliging EU Member States, manufacturers, importers, service providers and distributors of goods and services that operate within the internal market to ensure that goods and services falling within the scope of the Directive comply with the accessibility requirements that are set out in Annex I.138 The material scope of the EAA, as outlined in Article 2 thereof, is also wide-ranging, although the Act clearly does not mirror the full material scope of the CRPD. The EAA covers, inter alia, the following products: consumer general purpose computer hardware systems and their operating systems; self-service terminals related to the services covered by the legislation (such as automated teller machines (ATMs), check-in machines and ticketing machines); consumer terminal equipment with interactive computing capability, used for electronic communication services (i.e. Smartphones and tablets capable of calling); consumer terminal equipment with interactive computing capability, used for accessing audiovisual media services (i.e. Smart television sets); and e-readers. In terms of services, the Directive covers, among others, electronic communication services (i.e. telephony services); e-commerce services and consumer banking services.139 Importantly, the Directive requires that products and services incorporate at least one mode of operation that maintains privacy for those individuals using accessibility features.140 Thus, it is clear that the Directive seeks to make space for individual difference, in line with the accommodating dimension of inclusive equality. Furthermore, a pivotal aspect of the accommodating dimension of inclusive equality is not only the adoption of legislation that embodies an inclusive approach, but also its implementation and monitoring. In that regard, the framework of the EAA is ‘detailed and well-elaborated,’ as noted by the European Disability Forum (EDF).141 The second dimension of inclusive equality is the requirement that is imposed on Parties to the CRPD to ensure a fair redistributive dimension with regard to all measures that they adopt. The EAA, like the CRPD, adopts a UD perspective, with the aspiration that all EU citizens—not only persons with disabilities, but also those with temporary impairments and elderly individuals—will be able to access the products and services covered by the scope of the Act.142 Hvinden and Halvorsen argue that, to some extent, ‘new social regulations to promote accessibility through

138

EAA, Articles 7–13. Ibid, Article 2. 140 Ibid, Section VII, k. 141 European Disability Forum (2019), p. 11. 142 EAA, Preamble, para. 50. 139

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universal design might reduce the need for assistive technology,’ and this could have a (limited) redistributive effect.143 The third dimension of inclusive equality under the CRPD is the participative dimension. The EAA seeks to increase participation and inclusion of people with disabilities in society, in line with the purpose of the CRPD, through requiring a wide range of operators in the internal market to comply with the Directive’s comprehensive accessibility requirements. In addition, representative organizations of people with disabilities are included in the implementation and monitoring processes set out in the Directive, through a Working Group envisaged under Article 28 of the EAA. This participatory approach is in line with Articles 4(3) and 33 CRPD. The fourth, and final, dimension of inclusive equality is the recognition dimension, which aims to combat stigma, stereotyping, prejudice and violence, and to adequately take into account individual dignity and intersectional disadvantage. Although the EAA does not contain any specific provisions targeting stereotyping or intersectionality per se, as required by the model of inclusive equality underpinning the CRPD and by Article 8 of the UN Convention (on awareness-raising), the Directive does seek to contribute to breaking down stigma and prejudicial attitudinal barriers that hinder people with all forms of (dis)abilities through its focus on UD. According to Charitakis, UD is the ‘most appropriate method for dismantling the accessibility barriers that people with disabilities currently face, without the stigmatisation that Accessible Design might cause.’144 Overall, and in spite of several notable limitations to the EAA (a discussion of which is outside the scope of this chapter),145 it can be argued that the Directive goes further than any previous initiative adopted by the EU in the field of accessibility, including with regard to its implementation measures. It is a quintessential example of how the CRPD has the potential to advance disability equality and inclusion by impacting on the content of EU disability law outside the sphere of non-discrimination.

5 Concluding Remarks Quinn and Degener clarify that the end goal from the perspective of the human rights model of disability ‘is to build societies that are genuinely inclusive, societies that value difference and respect the dignity and equality of all human beings regardless of difference.’146 The provisions of the CRPD clearly emanate that goal.

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Halvorsen et al. (2017), p. 220. See Charitakis (2018), p. 100. 145 See, in that regard, the forthcoming chapter by Broderick (forthcoming, 2020). See further the analysis of the European Disability Forum (2019). 146 Quinn and Degener (2002), p. 14. 144

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To date, the human rights model of disability, together with the model of inclusive equality that underpins the UN Convention’s substantive rights and obligations, has impacted on several aspects of EU law and policy. There is no doubt that the CRPD has been a strategic driver of policy and legislative initiatives both in the sphere of equality and non-discrimination law—such as the proposal for a horizontal directive in 2008—and outside of that sphere—such as the EAA. This contribution has highlighted four main ways in which the CRPD has already shaped, or could potentially (further) influence, EU disability law. In the first instance, it has been demonstrated that the CRPD has the potential to foster a robust conceptualization of equality in EU non-discrimination law, by encouraging the CJEU to deepen its interpretation of the non-discrimination norm and expand the categories of non-discrimination on the ground of disability that are covered by EU law (within the sphere of existing EU competences). In the second instance, it was highlighted that the CRPD has enhanced the understanding of EU non-discrimination law duties and concepts, most notably the duty of reasonable accommodation. There is further potential for the CRPD Committee’s pronouncements on the reasonable accommodation duty to guide the CJEU in its interpretation of that duty, in order to ensure consistency throughout EU Member States. Thirdly, this contribution has argued that while the CJEU has not yet shown itself to be receptive to claims of intersectional disadvantage and discrimination, the CRPD’s human rights model of disability has the potential to promote a purposive and gendered approach to defining disability in EU non-discrimination law. Finally, it was shown that the model of inclusive equality embodied in the UN Convention has been mainstreamed, to some extent, in EU disability law outside the sphere of non-discrimination, in the field of accessibility. This is an important development, given the limits of non-discrimination law in achieving the broader objectives of participation and inclusion promoted by the CRPD. On the whole, the CRPD’s influence on EU disability law has been quite significant to date. That influence is likely to continue, although the extent to which the CRPD can influence EU equality and non-discrimination law depends, to a very large extent, on the CJEU’s receptiveness to actually adopting the human rights model of disability underpinning the UN Convention in practice, rather than simply paying lip service to the CRPD.147

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Age Discrimination as a Bone of Contention in the EU Gözde Kaya

Contents 1 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 Age Discrimination as a Legal Concept . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 Legal Sources of Age Discrimination in EU Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.1 In Primary Sources . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.2 In Secondary Sources . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 The Inevitable Relationship Between the EU’s Demographic Challenges and the Employment Policies of the Member States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 Some Remarks with Regard to Compulsory Retirement Age and Intergenerational Balance Policy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 An Assessment of the ECJ’s Level of Scrutiny with Regard to Compulsory Retirement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 Concluding Remarks . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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Abstract Age discrimination takes place when a person is treated less favourably than others merely on the ground of his/her age without any justified reason. Unjustified differential treatment on grounds of age in workplace is prohibited under both international and national documents. The practice reveals that it is generally the older people who are more likely to be subject to this unfair treatment. Taking into consideration the major demographic challenges such as the decrease in the fertility rates and the extension of the life expectancies of older people in the EU, this issue becomes more urgent and significant to deal with. This critical matter is furthermore accompanied by the decrease of the working age population of the EU and the increase of the social security spending of the EU Member States. Yet, the EU is trying to invoke some measures such as raising the retirement ages and strengthening the labour market participation of older workers. However, it’s

G. Kaya (*) Dokuz Eylül University, Faculty of Business, Department of International Relations, Division of EU Law, Buca, Izmir, Turkey e-mail: [email protected] © Springer Nature Switzerland AG 2020 T. Giegerich (ed.), The European Union as Protector and Promoter of Equality, European Union and its Neighbours in a Globalized World 1, https://doi.org/10.1007/978-3-030-43764-0_20

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seen that most of the Member States on the contrary tend to pursue social policies including the implementation of compulsory retirement ages for older workers which are generally justified by the objective of keeping an intergenerational balance between old and young workers. In this study, this contradiction between the EU’s and the Member States’ polices is questioned and deeply analysed in light of both the EU’s future demographic challenges and the recent case law of the European Court of Justice.

1 Introduction Age discrimination appears to be different in nature when taken into consideration amongst other prohibited grounds of discrimination. As rightfully put forward by Sargeant ‘Age is a characteristic that if we are fortunate will come to each of us.’1 It’s definitely true that age is a characteristic that concerns everyone in society since every person is assumed to experience aging during his/her life. Several people either young or old are exposed to age discrimination in the workplace. Age is a prohibited ground of discrimination regulated under both national and international documents. Age discrimination legislation indeed covers all persons at all ages. Yet, the number as well as the scope of the cases brought before the courts, reveal that it is mostly and particularly older people who are subject to this unfair treatment. Age discrimination takes place when a person is treated on a less advantageous basis than another person merely with regard to his or her age without any justified and legitimate reason. This unfair treatment is mostly based on prejudices and stereotypes that are often linked to old employees’ productivity as well as their physical and mental capabilities which are considered to decline due to advancement in age. Yet, these prejudices often accompanied and justified by the higher youth unemployment rates lead to the introduction of compulsory retirement policies under national legal systems of many countries including several European Union (EU) Member States as well. National legal systems require compulsory retirement at a certain age after which employment contracts of older employees are automatically terminated regardless of the fact whether or not they are still able to perform their jobs or willing to remain further in the labour market. Age discrimination is prohibited under both the primary and secondary sources of EU law. However, there exists an exception from this general principle of non-discrimination which is regulated under Article 6 of the Directive 2000/78. Article 6 gives the Member States the competence to justify their differential treatment based on age by a legitimate aim which is related to that particular country’s national employment policy, labour market and vocational training 1

Sargeant (2011), p. 7.

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objectives. Considerable significance is to be attached to age discrimination when the future demographic challenges of the EU are considered. The decline in fertility rates accompanied by the extension of life expectancies of older people are likely to amount to increasing social burdens on the social security systems and economies of the Member States if more effective measures are not taken both at the EU and Member State levels. Yet, there seems to exist a contrast between the policies pursued at the EU level such as urging the Member States to raise retirement ages on one side and the compulsory retirement policies justified by the intergenerational balance arguments put forward by the Member States on the other side. Another point worth to mention is the flexible level of scrutiny delivered by the European Court of Justice (ECJ) concerning age discrimination cases unlike other discrimination cases. This loose standard of scrutiny leads to several criticisms among scholars since it gives priority to economic concerns of Member States’ labour markets rather than the fundamental rights of individuals to engage in work. The ECJ case law reveals the sharp contrast and the difficulty in finding a right balance between the individual and rights-based approach and a collective and interest-based approach with regard to age discrimination. The scope of this paper is restricted to age discrimination in the workplace and compulsory retirement since the age discrimination cases brought before the ECJ to a large extent concern the compulsory retirement policies of the EU Member States. The paper will try to analyse whether or not there exists a contrast between the policies conducted at the EU level and the Member States’ level in terms of measures invoked to cope against unemployment and challenges with regard to demographic transformation of the ageing European society. The first part of the paper introduces a theoretical approach to the concept of age discrimination as well as the legal framework of age discrimination under both primary and secondary sources of EU law. This is followed by the second part which handles the inevitable relationship between the EU’s demographic challenges and the employment policies of the Member States in light of the current statistical data. Some critical remarks are then provided with regard to the introduction of compulsory retirement and the intergenerational balance policy put forward by the Member States. The last part of the paper is reserved to a critical analysis of the level of scrutiny delivered by the ECJ when dealing with age discrimination cases in light of the recent cases of the Court.

2 Age Discrimination as a Legal Concept The concepts of discrimination and equality are closely linked to each other and in general are used interchangeably. The concept of discrimination finds its roots in the Aristotelian equality paradigm which formulates that “like cases should be treated alike and that different cases should be treated differently, unless there is an

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objective reason not to do so.”2 The first part of the Aristotelian equality formula that like cases should be treated alike corresponds to the formal equality while the second sentence formulating that unlike cases should require unlike treatment in proportion to their unlikeness refer to substantive equality. In that regard, formal equality engages merely in providing procedural fairness in comparison to reaching an equality of results.3 It does not focus on the substance and it is yet convinced as long as the sides are treated on an equal footing no matter how well or badly they are treated.4 Equality of results is provided within the introduction of substantive equality which concerns measures to guarantee that every person shall have equal opportunities since they all are social equals. Substantive equality is regarded to be more group focused rather than formal equality which encompasses an individualistic approach.5 National legal systems in general prohibit several grounds of discrimination including age which indeed concerns everyone in society since every human being is expected to experience aging at some points of his/her life. Age discrimination laws under national legal systems are not dedicated to a specific age group and cover all persons at different ages. However, the practice has shown that the most vulnerable ones who are subject to age discrimination in workplace particularly are either the younger or the older persons. Among those two groups, older persons are more likely to be exposed to such discrimination in comparison to the younger ones. That’s why age discrimination legislation is deemed to protect older employees in the first place when compared with younger age groups.6 Age discrimination is not specifically regulated under the documents belonging to either the International Labour Organization (ILO) or the Council of Europe.7 Yet, the ILO introduced the ‘Older Workers Recommendation’8 in 1980 which covers “all workers who are liable to encounter difficulties in employment and occupation because of advancement in age.” (Recommendation Art.1(1)). The Recommendation avoiding to provide any definitions on either older workers or age discrimination, leaves the discretion to precisely define older workers with reference to specific age categories to each member country in accordance with their national laws and practices. (Recommendation Art.1(2)). According to the Recommendation, Member States are expected to take all the necessary measures to combat discrimination in employment and occupation with regard to older workers within their national

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Ellis and Watson (2012), p. 5. Ben-Israel and Foubert (2004), p. 324. 4 Tobler (2005), p. 25. 5 Ben-Israel and Foubert (2004), pp. 325–327. 6 Sargeant (2006), pp. 1–5. 7 Kaya (2015a), p. 85. 8 R162 Older Workers Recommendation (1980), Geneva, 66th ILC session. . (‘Recommendation’). 3

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policies.9 Sargeant defines older employees as persons who are fifty years and over and therefore who might be subject to discriminatory practices through age-related measures and prejudices.10 Such stereotypes and prejudices often lead to several unfair discriminatory practices against older employees in workplaces. Age discrimination takes place when a person is treated less favourably than another person merely with regard to his or her age. Drury provides a definition of age discrimination in workplace which is to be divided into two categories such as direct and indirect age discrimination. In that regard, direct discrimination on age corresponds to ‘the use of specific age limits to exclude older workers or older job-seekers from employment, recruitment processes or from employment measures such as re-training.’11 Introduction of obligatory retirement schemes12 as well as age-limited employment advertisements13 may also fall into this category of direct discrimination. On the other hand, there exists the indirect discrimination on age which is not as obvious and easy to be revealed and proven such as direct discrimination. According to Drury’s definition, indirect discrimination which appears in implicit form ‘includes measures which are not directly age-specific but which have a negative impact on older workers’ such as state subsidized pre-retirement allowances or benefits as well as invitations of voluntary redundancy directed at workers over a specific age.14 As seen, indirect discrimination goes further than explicit discriminatory practices and includes behaviour and practices which apparently seem to amount to equal treatment however in factual terms are discriminatory in effect or result. These discriminatory practices have a negative impact on a certain age group more than others and the focus is rather on the result than the intention.15

3 Legal Sources of Age Discrimination in EU Law 3.1

In Primary Sources

The legal base of the prohibition of discrimination on grounds of age in EU primary law is regulated under Article 19 of the Treaty on the Functioning of the EU (TFEU) which sets out a general principle of non-discrimination. Article 19 TFEU is also well known as ex Article 13 Treaty on European Community (TEC) and has been introduced within the Amsterdam Treaty in 1999. Article 19 TFEU gives the Council after deciding unanimously through a special legislative procedure and

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Recommendation Art. 3. Sargeant (2006), p. 6. 11 Drury (1994), p. 497. 12 Drury (1994), p. 497. 13 Ghosheh (2008), p. 23. 14 Drury (1994), p. 497. 15 Ghosheh (2008), p. 23. 10

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getting the consent of the European Parliament, the competence to take the necessary measures to combat discriminations based on different grounds including sex, racial or ethnic origin, religion or belief, disability, age or sexual orientation. Therefore, the legal base of the secondary legislation further to be adopted by the Council shall rely on this Article. On the other hand, Article 10 TFEU imposes a duty on the EU to mainstream the principle of non-discrimination based on sex, racial or ethnic origin, religion or belief, disability, age or sexual orientation in all its policies and activities before defining and implementing them. A further primary source in relation to the prohibition of discrimination on age is the Charter of Fundamental Rights of the EU16 (hereinafter Charter) which has gained legal force within the Lisbon Treaty in 2009. The Charter has laid down the prohibition of age discrimination under Article 21 which also includes several other grounds of non-discrimination within a non-exhaustive list.17 Article 25 of the Charter enshrines an obligation on the EU to recognize and respect the rights of the elderly to lead a life of dignity and independence and to participate in social and cultural life. Moreover, the EU is expected to recognize and respect the “entitlement to social security benefits and social services providing protection in cases such as maternity, illness, industrial accidents, dependency or old age. . . .” in accordance with Article 34/1 of the Charter.

3.2

In Secondary Sources

Age discrimination is regulated under the Directive 2000/7818 (also known as the Framework Directive) along with other prohibited grounds of discrimination. It must be noted that the Directive 2000/78 is adopted on the basis of ex-Article 13 TEC and the scope of this Directive is limited merely to employment and occupation. The main purpose of the Directive 2000/78 is to introduce a general framework to combat all types of discrimination based on several prohibited grounds with regard to employment and occupation and to guarantee the exercise of the principle of equal treatment in the Member States as laid under Article 1 of the Directive. Directive

16 The Charter of Fundamental Rights of the EU was proclaimed at the Nice European Council of the EU on 7 December 2000. However, it was within the entry into force of the Lisbon Treaty in 2009 that the Charter started to have a binding legal force on both the EU institutions and the Member States. 17 Article 21 of the Charter provides as: “Any discrimination based on any ground such as sex, race, colour, ethnic or social origin, genetic features, language, religion or belief, political or any other opinion, membership of a national minority, property, birth, disability, age or sexual orientation shall be prohibited.” 18 Council Directive 2000/78/EC establishing a general framework for equal treatment in employment and occupation, OJ L 303/16–22 (2000).

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2000/78 introduces two general exceptions (Articles 2/5 and 4/1) and one specific exception (Article 6) to the prohibition of non-discrimination based on age. The first general exception to the principle of equal treatment is laid down in Article 2/5 of the Directive 2000/78 which is related to matters of public security, public order, public health, prevention of criminal offences as well as the protection of the rights and freedoms of other persons. Hence Article 2/5 authorizes the Member States to treat older employees on an unequal footing when those issues are at stake. Gyulavári emphasizes the extensive and risky content of this Article and offers that the ECJ shall need to interpret such a broadly worded provision, within a narrow approach.19 Article 4 of the Directive 2000/78 which is regarded as the second general exception to the principle of equal treatment, concerns the occupational requirements related to the specific nature of the work to be performed. In that regard, Article 4 gives the Member States the competence to introduce national rules which may allow them to treat employees unequally on the basis of age in cases where “the nature of the particular occupational activities concerned or of the context in which they are carried out, such a characteristic constitutes a genuine and determining occupational requirement, provided that the objective is legitimate and the requirement is proportionate.” (Article 4/1 Directive 2000/78) As seen, this article introduces a general exception concerning all discriminatory grounds which may also legitimize differential treatment against older employees if the conditions are met. Another highly significant article which introduces a third exception to the general principle of equal treatment is Article 6 of the Directive 2000/78. Article 6 has a considerable importance since it is specifically dedicated to age discrimination and allows for the legitimization of any differential treatment merely on grounds of age. Therefore, this Article constitutes the main exception to the prohibition of discrimination on grounds of age and is the major legal base that the Member States of the EU rely on when justifying their differential treatment based on age in light of the case law of the ECJ. According to Article 6/1 of the Directive 2000/78, Member States may provide that differential treatment based on age shall not amount to discrimination if it is objectively and reasonably justified by a legitimate aim which concerns that particular country’s national employment policy, labour market and vocational training objectives, as long as the means of achieving that aim are appropriate and necessary. The Article also introduces a comprehensive list of justifications20 which may be invoked by the Member States. Article 6 also reiterates and is regarded as a

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Gyulavári (2013), p. 382. This non-exhaustive list of differential treatment which may be invoked by the Member States, is enshrined in Art.6/1(a)-(b)-(c) of the Directive 2000/78 and covers the introduction of special conditions on access to employment and vocational training, employment and occupation, including dismissal and remuneration conditions, for young people, older workers and persons with caring responsibilities in order to promote their vocational integration or ensure their protection; the fixing of minimum conditions of age, professional experience or seniority in service for access to employment or to certain advantages linked to employment; the fixing of a maximum age for 20

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reflection of Recital 1421 and Recital 2522 of the Framework Directive with regard to justification of the national rules on different treatment concerning age.23 Furthermore, Article 6/2 of the Directive 2000/78 authorizes the Member States to set up different ages for admission or entitlement to retirement or invalidity benefits within the framework of occupational social security schemes provided that these measures do not lead to sex discrimination. Hence, Article 6 sets out a framework in which differential treatment based on age that normally would lead to direct discrimination shall be legitimized as long as the conditions are fulfilled.24Ellis argues that such an exception laid under Article 6, shall rather be restricted to the exercise of justification of indirect discrimination since justification in itself is not a concept to be logically applied to direct discrimination. Such an attempt therefore is likely to harm and pose severe threats to the efficiency of the concept of justification. The author advocates that setting up this ‘general defence mechanism’ through Article 6 of the Directive, rather is likely to serve the economic interests of the EU Member States. Yet, the ECJ undertakes a significant responsibility when examining what is meant by the phrase ‘objectively and reasonably justified by a legitimate aim’ in age discrimination cases brought before it. In case that the ECJ avoids to pursue a well-balanced approach, this could lead to serious problems particularly when the recent demographic conditions of the EU to be discussed further, are taken into consideration.25Gyulavári argues that the justification opportunity provided to the Member States through Article 6 indeed places age discrimination at the bottom level of the so-called hierarchy of grounds.26 The ECJ has invoked Article 6/1 of the Framework Directive for the first time in its landmark decision Mangold.27Mangold case concerns the claims that non-implementation of the national rules in Germany restricting the conclusion of fixed term employment contracts to persons over a certain age, constituted discrimination on grounds of age. In accordance with the German national law at the time of the proceedings, fixed term employment contracts were authorized for a maximum

recruitment which is based on the training requirements of the post in question or the need for a reasonable period of employment before retirement. 21 Recital 14 provides as: “This Directive shall be without prejudice to national provisions laying down retirement ages.”. 22 Recital 25 provides as: “The prohibition of age discrimination is an essential part of meeting the aims set out in the Employment Guidelines and encouraging diversity in the workforce. However, differences in treatment in connection with age may be justified under certain circumstances and therefore require specific provisions which may vary in accordance with the situation in Member States. It is therefore essential to distinguish between differences in treatment which are justified, in particular by legitimate employment policy, labour market and vocational training objectives, and discrimination which must be prohibited.”. 23 Goebel (2017), p. 316. 24 Dewhurst (2013), p. 532. 25 Ellis and Watson (2012), pp. 408–409. 26 Gyulavári (2013), p. 384. 27 Case C-144/04, Werner Mangold v Rüdiger Helm (ECJ 22 November 2005).

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term of two years and could be renewed three times at most.28 However, this national rule was excluded to be implemented to the employment contracts of employees over 52 years of age likewise the plaintiff in the case at hand. The Court in the first place decided that the exclusion of implementation of this national rule to employees over 52 years, constituted differential treatment on grounds of age.29 Then the Court analysed whether or not this national measure was objectively and reasonably justified in accordance with Article 6/1 of the Directive 2000/78.30 However, the ECJ, though accepting that the main purpose of the national legislation was to promote the vocational integration of unemployed older employees,31 the Court concluded that the national legislation had gone beyond what was appropriate and necessary in order to attain the objective pursued and therefore could not be objectively justified under Article 6/1 of the Framework Directive.32Mangold apart from constituting the first case on that Article is also crucial in terms of the ECJ’s analysis of upgrading the principle of non-discrimination on grounds of age to the level of a basic fundamental right and one of the common principles of EU Law.33

4 The Inevitable Relationship Between the EU’s Demographic Challenges and the Employment Policies of the Member States There seems to exist an inevitable and close relationship between the EU’s future demographic indicators and the employment policies put forward by the Member States. This though is quite unsurprising when the ageing societies of the EU accompanied by the decrease in the fertility rates are taken into consideration. The population structure of the EU is sharply in change. It’s seen that the life expectancies of the elderly persons are quite pro-longed in comparison to past decades and due to the continuous decrease of the working age population, each day it becomes more challenging for the Member States’ social security and health care systems to maintain their economic sustainability. Indeed ageing is not a challenge that is characteristic to the EU alone since it concerns most of the other modern societies as well such as the United States (US) and Japan. It is a demographic trend which is highly linked to preserving economic sustainability within the context of employment, pensions, health care 28

Case C-144/04, Werner Mangold v Rüdiger Helm (ECJ 22 November 2005), para. 14. Case C-144/04, Werner Mangold v Rüdiger Helm (ECJ 22 November 2005), para. 57. 30 Case C-144/04, Werner Mangold v Rüdiger Helm (ECJ 22 November 2005), para. 58. 31 Case C-144/04, Werner Mangold v Rüdiger Helm (ECJ 22 November 2005), para. 59. 32 Case C-144/04, Werner Mangold v Rüdiger Helm (ECJ 22 November 2005), para. 65. 33 Kaya (2012), p. 188; Schlachter (2011), p. 288; Case C-144/04, Werner Mangold v Rüdiger Helm (ECJ 22 November 2005), para. 75. 29

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systems and social cohesion between generations.34 Ageing population is considered to have a substantial impact on the formation of the global workforce.35Sargeant rightfully argues that the ageing population is irreversible and though it is yet experienced to a large extent in the developed countries, indeed the change is taking place everywhere. This is revealed by the increase of the median age of the whole world’s population.36 The current population projections of the EU reveal significant data which is likely to place the EU Member States’ labour markets and social security systems into quite disadvantageous position within the coming decades. The total population of the EU-28 as of 1 January 2017 was recorded around 511.5 million. The largest share of this total population belongs to the persons at working age (persons between 15 and 64 years of age) with a 64.9% and this is followed by the older persons (persons who are 65 and over) with a 19.4% of share and young persons (persons between 0 and 14 years old) with a 15.6% of a share within the whole population. The median age of the population of the EU-28 as of 1 January 2017 was recorded at 42.8 years which is already considerably high.37 The EU population is estimated to reach a peak point with 528 million by 2040 which will be followed by a stable process until 2050 and is expected to decline afterwards to 520 million by the year 2070.38 Considerable importance is to be attached to the old age dependency ratio which reflects the support provided to older persons by the working age population. The old age dependency ratio for the EU-28 was recorded as 29.9% as of 1 January 2017 which reveals that there exist just over three persons of working age for every person aged 65 or over.39 Taking into consideration that old age dependency ratio was around 27.5% for the EU-28 by 2013 and corresponding to the fact that almost four persons of working age were financing each person aged 65 or over,40 it is obvious that this dependency is in a rapid increase. However, the worst scenario lies in the coming decades when the share of the population of working age is estimated to steadily decline while older persons will continuously be likely to increase their proportion within the total population. In that regard, persons aged 65 or over are estimated to account to 29.1% of the population of the EU-28 by 2080 when compared with their share of 19.4% for the year 2017. This reveals the fact that old age dependency ratio is estimated almost to double from 29.9% in 2017 to 52.3%

34

Numhauser-Henning (2013), pp. 391–392. Shaw and Shaw (2010), p. 281. 36 Sargeant (2011), p. 6. 37 Eurostat Population Structure and Ageing, Eurostat Statistics Explained. 38 European Commission 2018 Ageing Report (2017), p. 3. 39 Eurostat Population Structure and Ageing, Eurostat Statistics Explained. . 40 Kaya (2015a), p. 91. 35

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for the year 2080 which clearly indicates that every two persons of working age will be financing a person aged 65 or over.41 Hence, as pointed out by Schlachter, the situation of older employees apart from the human rights perspective is highly significant in terms of maintaining the sustainability of the social security and health care systems of the Member States accompanied by the economic necessity to strengthen the instruments belonging to those systems.42 Yet, these statistics mentioned above clearly indicate that the future challenges and the possible negative outcomes are likely to appear as social burdens on the economies of the Member States. Therefore, the EU needs to introduce some effective devices in order to be able to cope with those future challenges such as raising the retirement ages of the older employees and increasing the employment rates of older persons in the labour markets of the Member States. This will inevitably strengthen the EU’s global competitiveness against its rivals such as the US and Japan.43 The European Commission already highlighted the relationship between the gradual transformation of the EU’s demographic structure and the need to revisit the employment policies of the Member States particularly concerning the case of older employees in its initial Communication “Increasing the Employment of Older Workers and Delaying the Exit from the Labour Market”44 published in 2004.45 The European Commission put the focus on the low and insufficient labour market participation of older employees. According to the Commission, given the prolonging life expectancies and the decline in the working age population, older employees have to be accepted as both a major element of labour supply and a decisive factor for preserving sustainable development.46 In that regard, the Commission advices the Member States to pursue national policies which shall increase the labour market participation and employment rates of older employees with a view to using full potential of labour supply to sustain economic growth, tax revenues based on incomes, and social protection systems covering sufficient pensions.47 According to the Commission, early retirement policies though perceived as an effective instrument by the companies, indeed lead to a huge loss of human capital. Hence, the Commission encourages the Member States to introduce and improve active ageing policies in order to maintain the sustainability of older employees’ employment, financial devices to dissuade early

Eurostat Population Structure and Ageing, Eurostat Statistics Explained. . 42 Schlachter (2011), p. 288. 43 Kaya (2015a), pp. 91–92. 44 Commission Communication on Increasing the Employment of Older Workers and Delaying the Exit from the Labour Market, COM (2004) 146 final of 3 March 2004. (‘Commission Communication’). 45 Commission Communication (2004), p. 3. 46 Commission Communication (2004), p. 3. 47 Commission Communication (2004), p. 3; Goebel (2017), p. 315. 41

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retirement, training opportunities as well as lifelong learning strategies, adequate working conditions notably with regard to health and safety and flexible working regulations. Those instruments according to the Commission are likely to keep older employees’ stay in the labour market.48 Accordingly, the European Commission adopted the Europe 2020 Strategy49 in 2010 through which it reiterates the need to increase the labour market participation of older employees particularly by focusing on the economic competition pursued against the EU’s global rivals. The primary targets that were determined in the Europe 2020 Strategy involve smart, sustainable and inclusive growth for the EU. The Commission specified several target areas which includes increasing the employment rate of the population aged between 20 and 64 from 69% for the year 2009 to at least 75% by means of achieving a higher engagement of women and older employees as well as migrants within the labour market until 2020.50 It is clear that the employment rate of 69% stays far behind the employment rates of active working population in countries such as the US and Japan. Europe 2020 Strategy also emphasized the need to increase the employment rates of female employees corresponding to 62.3% and the employment rates of older employees (persons from 55 to 64) which was recorded at 45.9% for the year 2009.51 It has to be noted that the employment rate for persons aged between 20 and 64 are recorded at 73.2% for the third quarter of 2018 which reveals a considerably high employment rate in comparison to previous years. This reveals that the EU can be regarded to be successful in reaching close enough to achieving its 2020 targets of 75% in terms of its total employment rate. In the meantime, female participation in the labour market is recorded at 67.5% while older employees’ employment rate corresponds to 59% for the third quarter of 2018.52 As obvious from these data, the general employment rate aged from 20 to 64 has revealed an increase around 4 percentage points, while female workforce has increased around 5.2 percentage points accompanied by the increase of older employees around 13 percentage points within almost a ten years period of time. Hence, the highest increase in participation rate is recorded for older employees, which shows us how critical and significant age discrimination issue becomes each day when some more elderly people choose to stay at their work. Though these data also reveal that the participation level of all age and sex groups are in a continuous increase over time, still these rates are not sufficient for the EU to catch up with its global competitors. For instance, the employment rate of persons aged from 15 to 48

Commission Communication (2004), pp. 3–4. Commission Communication Europe 2020, A Strategy for Smart, Sustainable and Inclusive Growth, COM (2010) 2020 final of 3 March 2010. (‘Europe 2020 Strategy’). 50 Europe 2020 Strategy (2010), p. 8. 51 Employment and activity by sex and age - annual data, Eurostat; Europe 2020 Strategy (2010), p. 5. . 52 Employment and activity by sex and age - annual data, Eurostat. . 49

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64 is recorded around 68% for the EU by 2017. However, the employment rates recorded for the same age group and the same year for third countries such as Japan, Canada, Australia and the US are changing between 70 and 75% (Employment Rate of Persons Aged 15–64 Years, Eurostat Statistics Explained 2007 and 2017). A further point to be highlighted is that the employment rates among the EU Member States also vary to a significant extent. While the highest employment rates between 75 and 78% for the same age group is seen in Northern countries such as Sweden, the Netherlands, Germany and Denmark; the lowest employment rates differing between 55 and 63% belong to the Mediterranean countries such as Greece, Italy and Spain.53 What’s more, the recent employment rate of the EU for older employees recorded at 59% also remains quite below the employment rates belonging to Japan which is above 70% followed by Indonesia and South Korea which are close to 70%. These countries are followed by Australia, the US and Canada which still are placed above the EU level.54 Therefore, it is clear that the EU needs to invoke some more effective measures to cope with these demographic changes and their possible negative consequences on Member States’ economies. So that the EU will be able to pursue a more ambitious competition with the rest of the world. According to İçduygu and Karaçay, the EU has three alternatives for tackling these challenges. These alternatives include increasing the total employment rate of the active working population at the EU level, raising up retirement ages and pursuing a more effective migration policy. The alternative of increasing the total employment rate of the active working population particularly corresponds to increasing the employment rates of either female or old workforce. If the EU chooses the first alternative, it needs to reach higher employment rates at the EU level through bringing the members holding low employment levels close to the level of Scandinavian countries. The second alternative corresponds to implementing higher retirement ages which the EU has already been urging the Member States to put into practice. If the EU chooses and applies these alternatives successfully, then the likely negative effects of the ageing society on economies of the Member States may have the possibility to decrease. The last option refers to revisiting guest worker policies conducted during the 1960s and 1970s and seeking migrants from third countries which indeed is a critical issue when the past effects of these policies are questioned. However, if the EU does not choose these measures or cannot implement them efficiently, then the ageing population is likely to show serious negative impacts on the economies of the Member States as an inevitable outcome.55

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Employment Data, OECD Data. Employment Rate of Persons Aged 55–64 Years, Eurostat Statistics Explained (2017). . 55 İçduygu and Karaçay (2012), p. 27; Kaya (2015b), p. 58. 54

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5 Some Remarks with Regard to Compulsory Retirement Age and Intergenerational Balance Policy A compulsory/mandatory retirement age is considered as an age which employment contracts of older employees are automatically terminated after reaching that certain age. Retirement age is different from a pensionable age which employees are entitled to receive a pension either granted by the state or occupational pension scheme funded by a private employer.56 In general, these ages are fixed as the same and age 65 is applied on a common basis in many European countries. For instance, it’s seen that Austria, Ireland, Denmark, Italy, the Netherlands, Luxembourg and Poland has set 65 while Sweden, Finland and Portugal introduced 67, 68 and 70 respectively.57 In practice, employment contracts of older employees are terminated on an automatic base when they turn up these certain ages. In most cases, the fact that they are also entitled to receive a full retirement pension helps to facilitate this process. According to employers, this is a better means since older employees in that regard are kindly invited to leave the labour market instead of being dismissed which sounds quite humiliating for them. Introduction of compulsory retirement ages are closely linked with the prejudices and stereotypes that are often based on older employees’ productivity as well as their physical and mental capabilities which are considered to decrease due to advancement in age. Yet studies show that age indeed has a minor impact on the overall performance and productivity of an employee.58 According to Dewhurst, majority of the studies reveal that there is either little or no connection between age and productivity. She advocates that there exists no concrete evidence which proves that productivity and performance decline with ageing. Nevertheless, in several cases, employers unfortunately manage to dismiss older employees by means of compulsory retirement. She underlines a significant point that even in cases which there exists a decline in productivity of older employees, they are likely to compensate this situation with their long-lasting experiences. Still, due to settled prejudices, older employees in general are perceived by employers to be old-fashioned, hard to train and teach new skills particularly with regard to technology and less likely to change and improve themselves59 accompanied by the belief that older employees are more expensive to hire.60 However, the fact that employees who reach specific retirement ages are already entitled to receive a full retirement pension shall not constitute a legitimate ground for terminating their employment contracts automatically against their will. There can be persons who would like to leave the labour market upon reaching a certain retirement age as well as persons who would like to continue their jobs due to their

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O’Cinneide (2008), p. 16. Goebel (2017), p. 325. 58 Sargeant (2006), p. 7. 59 Dewhurst (2015), pp. 192–202. 60 Ghosheh (2008), p. 5. 57

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intentions or financial reasons. It’s clear that the financial situation of an actively working person in general is indeed better in comparison to that of a retired person. Yet, introduction of the compulsory retirement ages and the automatic termination of employment contracts are likely to counter ‘the right to engage in work’ which is a fundamental right laid under Article 15 of the Charter.61 On the other hand, one has to agree that there are some professions which their nature or the way they are performed are closely linked with physical skills and abilities that undoubtedly decline with age. Firefighting, civil aviation, underground mining and police/army forces might be given as examples for those tasks which are indeed covered under Article 4 of the Directive 2000/78. In that regard, the nature of the particular occupational activities constitutes a legitimate ground for a differential treatment against older employees. Still, even with these professions, there have to be some ways which older employees who are willing to work further can be directed to positions such as management or posts which require service functions with less physical capacity.62 A further significant point is that compulsory retirement ages are often introduced with the aim of opening up new employment opportunities for younger employees who are exposed to high unemployment rates. Yet, it’s clear from the case law of the ECJ that most of the defendant Member States rely on intergenerational balance as a legitimate justification when they introduce compulsory retirement ages within their social and employment policies. Indeed, this is acceptable and justifiable when high levels of youth unemployment rates are taken into consideration in some particular Member States such as Greece and Spain which are possessing the highest level among all Member States. Unemployment rate in Greece corresponds to the highest level among the EU countries with 21.5% which is followed closely by Spain with 17.2% for the year 2017. Unemployment rate for the EU-28 average is recorded at 7.6% while the lowest rates belong to Czech Republic with 2.9% and Germany with 3.8% in 2017.63 Rates belonging to youth unemployment for persons between the age of 15 and 24 are considerably higher than the general unemployment rates when the negative effects of the economic crisis that leads to the increase in those rates are taken into account. Youth unemployment rates likewise average unemployment rates are recorded as the highest in Greece with 43.6% which is followed by Spain with 38.6% and by Italy with 34.7% in 2017. The lowest youth unemployment rate is recorded in Germany with 6.8% which is followed by Czech Republic with 7.9% in 2017.64 According to Goebel, under the case law of the ECJ, justification for pursuing an intergenerational balance policy is quite strong when the rate of unemployment among younger employees are indeed higher in comparison to the average

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Kaya (2015a), p. 99. Kaya (2015a), pp. 100, 114; Goebel (2017), p. 361. 63 Unemployment by sex and age-annual average, Eurostat. . 64 Youth unemployment rate aged 15–24, Eurostat. . 62

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unemployment rate.65 Therefore, high levels of youth unemployment rates of some Member States might serve as a legitimate basis for the introduction of compulsory retirement ages. However, it’s interesting to note that the Member States which have not been coping with higher youth unemployment rates also prefer relying on an intergenerational balance argument which is surprisingly accepted by the ECJ. As seen high levels of youth unemployment might be considered as a legitimate basis for relying on an intergenerational balance argument which is exercised by the termination of older employees’ contracts through compulsory retirement rules. Still, it is not easy to build up a correlation between the recruitment of younger employees and the removal of older ones from the labour market. As put forward by Sargeant, there indeed exists no proven linkage between youth unemployment and older employees’ employment.66 This approach is supported by Dewhurst who reiterates that since older employees are mostly engaged in qualified posts and holding top positions, these positions are less likely to be filled by young employees who have not yet possibly acquired the necessary experience and seniority.67 Goebel in one of his studies draws a comprehensive comparison between the US and the EU as well as its Member States in terms of regulating compulsory retirement within their legal systems. He emphasizes that the US had preferred to remove the compulsory retirement age of older employees on a gradual basis over time. The age of compulsory retirement in the US had initially been raised from 65 years of age to 70 years between the periods of 1967 and 1986. It was completely abolished in the US by 1986. Several factors including the demographic ones concerning the increase of life expectancies of older people, the possibility for mentally and physically capable older people still to continue their working lives, a potential increase in income tax resources, the possibility for older employees to maintain their qualified living standards and the fact that employment indeed should have been dependent on ability rather than arbitrary age limits, motivated the removal of compulsory retirement in the US.68 However, Goebel draws attention to the sui generis structure of the EU when compared with the US since the EU is not a state. Firstly, he emphasizes that the EU institutions indeed do not intend to provide any harmonization of the national rules of the Member States concerning compulsory retirement such as fixing a certain retirement age or a total removal at the EU level. This is not possible since social and employment policy is an area which the Member States are still retaining their national competences.69 Secondly, he points out to the various economic and social conditions belonging to many EU Member States which differentiate from the US conditions. He concludes that the high unemployment rates in some certain EU Member States might justify pursuing an intergenerational balance policy as well as maintaining the compulsory retirement

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Goebel (2017), p. 323. Sargeant (2012), p. 7. 67 Dewhurst (2013), pp. 532–533. 68 Goebel (2017), p. 336. 69 Goebel (2017), p. 338. 66

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ages in those countries when compared with the US which has been having a stable economic growth within the last decades.70 As mentioned earlier, leaving aside the US, even the social and economic conditions among the EU Member States themselves indeed vary to a significant extent. Goebel advocates that the removal of compulsory retirement age rules in the US provided a significant social advantage to the old employees who are willing to continue working as well as strengthening their dignity and independence. According to him, despite the fact that only few employees prefer to remain in the labour market over the age of seventy, still older employees’ fundamental right to work has been recognized71 which is a very significant consideration. It’s interesting to note that apart from the US, the UK on a gradual basis removed compulsory retirement in 2011 due to similar grounds likewise the US.72 However, according to Manfredi and Vickers, following the removal of compulsory retirement, leaving the exceptional cases apart, the UK is likely to be transformed from relying on an assumption favouring retirement at a certain age to an assumption favouring non-retirement.73Manfredi and Vickers argue that though the removal of compulsory retirement might apparently seem to solve the problems concerning discriminatory treatment against older employees, when a deeper analysis is provided, it’s seen that this policy might bring together some other risks and threats which have the likelihood of leading to weakening the employment protection in terms of the rights of all employees. Therefore the scholars advocate that some more effective solutions rather than the total elimination of compulsory retirement such as retaining a flexible retirement age and adopting a right to request flexible working could be introduced which would indeed provide achieving a better balance between the right of individuals to continue working and the right of them to get retired in light of all these demographic challenges.74 By not ignoring the different conditions in the US and the EU, Goebel offers that the EU Member States should indeed seriously examine the possibility of raising the compulsory retirement ages to the age seventy. He points out to a study75 revealing that relatively few older employees would probably choose to remain in the labour market after this age which possibly would not have any touching negative effects on the unemployment rates of younger employees.76

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Goebel (2017), pp. 338–339. Goebel (2017), p. 397. 72 Manfredi and Vickers (2013), p. 255. 73 Manfredi and Vickers (2013), p. 255. 74 Manfredi and Vickers (2013), pp. 267–271. 75 Goebel makes a reference to a study carried out by the National Academy of Science in the US within the early 1990s concerning the outcomes of the removal of compulsory retirement on higher education institutions. For further details, see Goebel (2017), p. 362. 76 Goebel (2017), p. 366. 71

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6 An Assessment of the ECJ’s Level of Scrutiny with Regard to Compulsory Retirement Schiek draws attention to the fact that since the introduction of Directive 2000/78 under the EU legal system, cases brought before the ECJ particularly with regard to discrimination on grounds of age has jumped in comparison to other discrimination cases.77 Among age discrimination cases, it is mostly the ones with regard to compulsory retirement that are holding the majority and in general are dismissed by the Court. According to Dewhurst, the ECJ pursues a four stage scrutiny when handling the cases on age discrimination. In the first stage, the Court determines whether or not the particular case is covered within the scope of Directive 2000/78. The Court in the second stage examines if there exists a differential treatment with regard to age. Accordingly, the third stage is comprised of the detailed analysis of the Court with regard to justification of this differential treatment. The Court in this stage examines whether or not there are any legitimate aims that are reasonably and objectively justified in terms of reaching the goals related to employment policies, labour market and vocational training. If the Court accepts the objective justification put forward by the particular Member State, in the last stage it passes to a further analysis of the means applied for reaching that goal. The Court decides if the objective put forward could be reached through invoking less discriminatory instruments. In short, the Court concludes whether or not the means are appropriate and necessary in terms of the principle of proportionality.78 The scrutiny of the Court does not raise any criticisms with regard to the application of the first two stages. However, the Court is subject to several critics with regard to its level of examination in terms of the third and the last stages. As rightfully put forward by Dewhurst, the ECJ in almost 93% of the cases it had concluded decided in favour of the defendant Member States when they were invoking their legitimate objectives which indeed are highly attached to their economic policies. The Court has granted a large level of discretion to the Member States when they justify their differential treatment against older employees in their labour markets.79Schiek, argues that the ECJ interestingly invokes a looser level of scrutiny in justifying age discrimination cases when compared with other discrimination cases which are handled by the Court within a stricter approach. Hence according to the author, there seems to exist a dilemma between the prohibition of age discrimination on one side and the large scale application of age to justify different treatment on the other side. Schiek advocates that this is likely to lead to a ‘certain ambiguity’ of EU age discrimination law.80

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Schiek (2011), p. 777. Dewhurst (2013), pp. 525–526. 79 Dewhurst (2013), pp. 527–529. 80 Schiek (2011), pp. 784–785. 78

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It’s true that the Court approves that both the Member States and their social partners are granted a ‘broad discretion’ in choosing the specific measures that would fit best to the needs of their employment policies.81 With regard to compulsory retirement cases the Member States to a large majority justify their differential treatment on age relying on the argument of keeping up with the ‘intergenerational balance’ within their employment policies which necessitates the automatic termination of the employment contracts of older employees in order to open up new employment opportunities for younger generation. Under such circumstances, the ECJ indeed performs a very difficult task which is to try to keep a balance between the aim to establish a strong and settled principle of non-discrimination based on age within a fundamental rights approach on one side and the relationship between age concerns, ageism, the labour market necessities and the traditions of the Member States on the other side. Undoubtedly, there exists a very difficult and sensitive balance to be kept between the individual and rights-based approach and a collective and interest-based approach.82 This different characteristic of ECJ’s case law concerning age discrimination is referred to as ‘double bind’83 or ‘dual aspect’ of age discrimination law. Acceptance of the first individual and rights-based approach is in parallel with the social policy aims of prolonging the working lives of older people as a means of coping with the demographic challenges of the EU while the second approach lies in line with coping against youth unemployment rates as well as fitting better with the employers’ benefits in terms of enterprises’ efficiency.84 The difficulty and complexity of finding a right balance is reflected in the case law of the ECJ. Though the ECJ in general has been applying a more flexible level of scrutiny and accepting the legitimate objectives put forward by the Member States in age discrimination cases, it has not continuously decided so. The ECJ had applied a stricter approach in Mangold85 in which it ruled that Article 6/1 of the Directive 2000/78 is to be regarded as an exception from an individual right and concluded that the national legislation could not be objectively justified under Article 6/1.86 However, the ECJ had pursued a quite flexible approach in Palacios de la Villa87 where it decided that both the Member States and the social partners ‘enjoyed a broad discretion. . .in their definition of measures of achieving’ their particular aim within the context of their social and employment policy.88 According to Goebel, in Palacios de la Villa, the ECJ even provided a more deference to the national measure

81 Case C-411/05, Félix Palacios de la Villa v Cortefiel Servicios SA (ECJ 16 October 2007), para. 68. 82 Hendrickx (2012), p. 5; Hendrickx (2016), pp. 3–4. 83 Hendrickx (2012), p. 5. 84 Manfredi and Vickers (2013), pp. 252–253. 85 Case C-144/04, Werner Mangold v. Rüdiger Helm (ECJ 22 November 2005). 86 Schiek (2011), p. 785; Case C-144/04, Werner Mangold v Rüdiger Helm (ECJ 22 November 2005), para. 65. 87 Case C-411/05, Félix Palacios de la Villa v Cortefiel Servicios SA (ECJ 16 October 2007). 88 Schiek (2011), p. 785; Case C-411/05, Félix Palacios de la Villa v Cortefiel Servicios SA (ECJ 16 October 2007), para. 68.

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pursued by the particular Member State and the fixing up of age 65 as the retirement age since this national measure was determined by the participation of the social partners. The author provides that this is not surprising when the continental European view that associations which represent employees can be considered to be reliable since they fully serve the protection of the rights and benefits of all employees.89 Yet in the case Age Concern90 the Court balanced these two different levels of scrutiny where it decided that the level of discretion granted to the Member States shall not ‘have the effect of frustrating the implementation of the principle of non-discrimination on grounds of age.’91 Taking into consideration that the employment and social policy is a field which merely falls under the exclusive competences of the Member States, such a flexible approach applied by the ECJ may be understood and acceptable to a certain extent. However, it’s seen that the Court does not ask the Member States to more expressly define or elaborate on the legitimate objectives they pursue when they apply their specific measures.92 The Court regards the measure still to be legitimate even under the cases related to the existence of changes within the legitimate policies conducted by a Member State.93 This approach is reflected in the case Petersen94 where it was argued that the specific measure could still be invoked even under circumstances in which the original policy aims were changed by new aims parallel to the modified social, economic, demographic and financial conditions.95 Goebel makes a reference to a critical point which is often ignored by the ECJ when handling age discrimination cases. The author makes a comparison between the youth unemployment rates and total unemployment rates recorded in Spain, Germany and Sweden at the time when the cases Palacios de la Villa, Rosenbladt96 and Hörnfeldt97 each respectively belonging to these countries were held by the ECJ. In all these cases, the Member States in question had justified the introduction of a compulsory retirement age on reaching the objective of an intergenerational balance between different generations. However, it’s seen that the overall proportions of the

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Goebel (2017), p. 331. Case C-388/07, The Queen, on the application of The Incorporated Trustees of the National Council for Ageing (Age Concern England) v Secretary of State for Business, Enterprise and Regulatory Reform (ECJ 5 March 2009). 91 Schiek (2011), p. 786; Case C-388/07, The Queen, on the application of The Incorporated Trustees of the National Council for Ageing (Age Concern England) v Secretary of State for Business, Enterprise and Regulatory Reform (ECJ 5 March 2009), para. 51. 92 Kaya (2015a), p. 96. 93 Dewhurst (2013), p. 530. 94 Case C-341/08, Domnica Petersen v Berufungsausschuss für Zahnärzte für den Bezirk WestfalenLippe (ECJ 12 January 2010). 95 Case C-341/08 Domnica Petersen v Berufungsausschuss für Zahnärzte für den Bezirk WestfalenLippe (ECJ 12 January 2010), para. 49. 96 Case C-45/09, Gisela Rosenbladt v Oellerking Gebäudereinigungsges. mbH (ECJ 12 October 2010). 97 Case C-141/11, Torsten Hörnfeldt v Posten Meddelande AB (ECJ 5 July 2012). 90

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youth unemployment to the general unemployment rates in these countries indeed differ from each other. Within a closer examination, Goebel advocates that the youth unemployment rate for persons under the age of 25 was almost more than double the general unemployment rate in Spain at the time of the Palacios de la Villa case while it was recorded to be three times more the general unemployment rate in Sweden at the time of Hörnfeldt decision.98 These statistics may give an idea and explain on a rational basis the Court’s reasoning when accepting the justifications of these particular Member States based on intergenerational balance. However, as rightfully put forward by Goebel, the situation seems to be different in Rosenbladt case where the unemployment rate for persons under 25 years of age was such slightly above (almost equal) the general unemployment rate recorded for Germany at the time of the case.99 However, this did not prevent the Court from accepting the same line of Member State justification in that case. A further and common point to be considered with regard to these three cases is that the ECJ ruled in Palacios de la Villa, Hörnfeldt and Rosenbladt that the national legislation concerned was objectively justified since it provided the implementation of the compulsory retirement provision only to the employees who had been entitled to a full retirement pension.100 However, it is likely that the Court regards the compulsory retirement of an old employee to be accepted as justifiable even in cases where the state retirement pension corresponds to such a low level which hardly satisfies an adequate living standard.101 In the case Rosenbladt, the ECJ made no reference to the level of the retirement pension benefit granted to the old employee. The Advocate General Trstenjak in Rosenbladt, put forward the opinion that the level of the pension to be received by the applicant indeed had no connection to be linked to the compatibility of a standard retirement age with Article 6/1 of the Directive 2000/78. The inadequacy of the amount of the pension had a very slight linkage with the prohibition of age discrimination and this was a matter primarily to be dealt by the social policies of the Member States.102 This approach was also reiterated by the Court in the Case Hörnfeldt.103 Goebel rightfully draws attention to the Grand Chamber for not making any direct references to such a crucial matter which indeed puts old employees into such financial difficulties.104 According to Dewhurst both the ECJ and the national courts of the Member States should focus on an individualized approach while assessing age 98

Goebel (2017), p. 331. Goebel (2017), p. 332. 100 Case C-411/05, Félix Palacios de la Villa v Cortefiel Servicios SA (ECJ 16 October 2007), para. 73; Case C-141/11 Torsten Hörnfeldt v Posten Meddelande AB (ECJ 5 July 2012), para. 42; Case C-45/09, Gisela Rosenbladt v Oellerking Gebäudereinigungsges. mbH (ECJ 12 October 2010), para. 48. Advocate General Trstenjak does not accept that opinion. See Case C-45/09, Opinion of Advocate General Trstenjak (ECJ 28 April 2010), para. 161. 101 Goebel (2017), p. 332. 102 Case C-45/09, Opinion of Advocate General Trstenjak (ECJ 28 April 2010), para. 163. 103 Case C-141/11, Torsten Hörnfeldt v Posten Meddelande AB (ECJ 5 July 2012), para. 17. 104 Goebel (2017), p. 332. 99

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discrimination cases rather than applying generalized assumptions based on negative stereotypes. She rightfully advocates that studies conducted in this field does not support the stereotypes and prejudices which are attributed to older employees. A very significant point raised by the author is that not all persons age at the same rate and to the same extent. Hence, it is very crucial to make a division between cases which are related to biological capacity directly linked with age (cases concerning a particular occupational requirement) and cases related to functional capacity or productivity which are not necessarily linked with age.105 Sargeant supports this approach by underlining that age stereotyping homogenises a specific age group as being all the same and all having certain characteristics or all lacking them irrespective of accepting any diversity within that age group. Therefore Sargeant offers to recognize the diversity of older population since the present methods which handle age discrimination and ageism seem to be insufficient.106 Yet, Goebel reiterates that it is to be hoped that the ECJ would adopt the approach taken by the Third Chamber in the case Age Concern in which it was ruled that the national court should not accept “mere generalizations” that backs the Member State’s policy, rather should fully examine whether or not the introduction of a standard age by the State indeed is suitable.107 Hence, the ECJ’s granting of such a high level of support for Member States’ policies might lead to the risk for the Court in accepting too quickly generalizations or stereotypes without properly elaborating into the reasons behind these policies.108 Last but not least, Drury rightfully advocates that measures invoked by the Member States to challenge age discrimination should not lead to a war for employment between the generations. Both group of young and old employees encounter separate and different difficulties in the workplace and the solutions to tackle these problems shall necessitate the introduction of equality of opportunity on an individual basis.109

7 Concluding Remarks The gradual demographic transformation of the EU’s ageing population which stems from the decline in fertility rates accompanied by the extension of life expectancies of older and dependent persons, required the EU to urge the Member States to raise the retirement ages within their social and employment policies. The European Commission in several documents has reiterated this urgent need to raise the retirement ages of older employees and the necessity to strengthen and increase

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Dewhurst (2015), pp. 196–199. Sargeant (2011), pp. 1–3. 107 Goebel (2017), p. 341. 108 Goebel (2017), p. 365. 109 Drury (1994), p. 497. 106

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their participation in the labour force of the Member States. According to the EU, this would on the one hand support the process while coping against the challenges of the demographic transformation, while on the other hand would strengthen the global economic competitiveness of the EU on the global scene. Given the recent statistical data and the latest projections with regard to these demographic challenges, it seems likely that the EU Member States will face difficulties in coping against the increasing social burdens imposed on their social security systems, health care systems as well as their economies. That being the case, the Member States have been introducing compulsory retirement policies as an effective instrument to cope against high youth unemployment rates and to open up new employment opportunities for younger generations. In that context, employment contracts of older employees’ are terminated on an automatic base when they reach certain ages fixed under national legal systems. Introduction of compulsory retirement rules is undoubtedly closely attached to high unemployment rates as well as to deeply rooted prejudices and stereotypes attributed to older employees’ performances and productivity which are considered to decline due to advancement in age. Under most cases, their entitlement to a full retirement pension facilitates this whole process. However, as many scholars argue, it is indeed very hard to find a concrete linkage between age and productivity except for some particular professions which their nature or the way they are carried out, are directly linked to physical capabilities that certainly decline with age such as firefighting, civil aviation, underground mining and police/army forces. Yet, that only amounts to a particular group of professions. Therefore, the introduction of the compulsory retirement ages and the automatic termination of employment contracts are likely to counter ‘the right to engage in work’ which is a fundamental right laid under Article 15 of the Charter. There might be persons who would like to leave their work and have some rest after a certain age as well as persons who would still like to continue working in accordance with their own intentions, still lasting capabilities or financial needs. This is a significant fact to be taken into consideration in terms of fundamental rights and freedoms. On the other hand, it’s seen that the ECJ in a large majority of the age discrimination cases, has been ruling in favour of the defendant Member States when they are justifying their national measures which indeed are closely linked to their economic considerations. It’s interesting that the Court has been displaying a looser and flexible standard of scrutiny when handling age discrimination cases in comparison to other discrimination cases which it pursues a stricter approach. This flexible level of scrutiny is criticized among scholars for jeopardizing and risking the general prohibition on age discrimination. However, it’s indeed difficult for the Court to try to find the right balance between the individual and right-based approach and a collective and interest-based approach which stem from the sui-generis character of age discrimination cases. The case law of the ECJ reveals that the Court in general accepts too quickly the legitimate objectives submitted by the Member States when they rely on intergenerational balance argument without deeply elaborating into the reasons behind these policies. It’s true and acceptable that in Member States who has been coping with high youth unemployment rates such as

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Greece and Spain, intergenerational balance argument might be justified on a reasonable and appropriate basis. Yet, it’s interesting that the Member States which have not been holding high youth unemployment rates also rely on intergenerational balance which is surprisingly accepted by the ECJ. A further point to raise is that it’s not easy to accept the linkage between youth unemployment and older employees’ employment since these two groups hardly compete with each other. It’s not too rational to consider that the qualified and top ranking positions held by older employees in most conditions are to be filled easily with young employees who are yet lacking in sufficient experience and seniority. Due to all above mentioned reasons, it is very significant for the Court to choose an individualized approach when dealing with age discrimination cases in comparison to a generalized approach which backs a Member State’s policy without fully analysing it. As pointed out by some scholars, making a division between cases concerning particular professions requiring physical capacities on one side and the ones concerning productivity might be helpful in that sense. Last but not least, these divergent policies conducted at the EU and the Member State level are likely to continue in the close future since the objective of the EU in terms of coping against demographic challenges as well as the need to increase the EU’s global economic actorness on one side and the objective of maintaining an intergenerational balance by the Member States based on the need to fight against high unemployment rates and providing more opportunities for younger generations on the other side are likely not to change and therefore still be kept as live debates between both sides.

References Ben-Israel, Ruth, and P. Foubert. 2004. Equality and Prohibition of Discrimination in Employment. In Comparative Labour Law and Industrial Relations in Industrialized Market Economies, ed. Roger Blanpain, 321–357. Alphen aan den Rijn: Kluwer Law International. Dewhurst, Elaine. 2013. The Development of EU Case-Law on Age Discrimination in Employment: ‘Will You Still Need Me? Will You Still Feed Me? When I’m Sixty-Four’. European Law Journal 19: 517–544. https://doi.org/10.1111/eulj.12042. ———. 2015. Are Older Workers Past Their Sell-by-Date? A View from UK Age Discrimination Law. The Modern Law Review 78: 189–215. https://doi.org/10.1111/1468-2230.12113. Drury, Elizabeth. 1994. Age Discrimination Against Older Workers in the European Union. The Geneva Papers on Risk and Insurance- Issues and Practice 19: 496–502. https://doi.org/10. 1057/gpp.1994.32. Ellis, Evelyn, and Philippa Watson. 2012. EU Anti-Discrimination Law. Oxford: Oxford University Press. European Commission Directorate-General for Economic and Financial Affairs, (November 2017) The 2018 Ageing Report: Underlying Assumptions & Projection Methodologies, (Institutional Paper 65). https://ec.europa.eu/info/sites/info/files/economy-finance/ip065_en.pdf. Ghosheh, Naj. 2008. Age Discrimination and Older Workers: Theory and Legislation in Comparative Context. Conditions of Work and Employment Series No.20.

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Goebel, Roger J. 2017. Adding a Little Gold to the Golden Years: Should the European Union Prohibit Compulsory Retirement as Age-Based Discrimination in Employment. Columbia Journal of European Law 23: 305–367. Gyulavári, Tamas. 2013. Age Discrimination: Recent Case Law of the European Court of Justice. Academy of European Law Forum 14: 377–389. Hendrickx, Frank. 2012. Age and European Employment Discrimination Law. In Active Ageing and Labour Law. Contributions in Honour of Professor Roger Blanpain, ed. Frank Hendrickz, 3–26. Cambridge: Intersentia. ———. 2016. Setting the Scene: Development of the CJEU Jurisprudence on Age Discrimination in Employment. In Challenges of Active Ageing, Equality Law and the Workplace, ed. Manfredi Simonetta and Lucy Vickers, 3–27. Hampshire: Palgrave Macmillan. İçduygu, Ahmet, and Ayşem Biriz Karaçay. 2012. Demography and Migration in Transition: Reflections on EU-Turkey Relations. In Turkey, Migration and the EU: Potentials, Challenges and Opportunities, Edition HWWI, ed. Seçil Paçacı Elitok and Thomas Straubhaar, 19–38. Hamburg: Hamburg University Press. Kaya, Gözde. 2012. Avrupa Birliği İş Hukuku’nda Cinsiyet Ayrımcılığı. Avrupa Birliği Bakanlığı Akademik Araştırmalar Serisi-1: 1725–1752. ———. 2015a. EU Age Discrimination in Light of EU’s Demographic Challenges and ECJ Case Law. Dokuz Eylül Üniversitesi Hukuk Fakültesi 17: 79–117. ———. 2015b. The Quest for Turkish Migration to the European Union, Exploring the Misconceptions (Chapter Three). In Global Migration: Old Assumptions, New Dynamics, ed. Diego Acosta Arcarazo and Anja Wiesbrock, vol. 2, 47–66. Wien/Leipzig: Prager. Manfredi, Simonetta, and Lucy Vickers. 2013. Meeting the Challenges of Active Ageing in the Workplace: Is the Abolition of Retirement the Answer? European Labour Law Journal 4: 251–271. https://doi.org/10.1177/201395251300400402. Numhauser-Henning, Ann. 2013. The EU Ban on Age-Discrimination and Older Workers: Potentials and Pitfalls. The International Journal of Comparative Labour Law and Industrial Relations 29: 391–414. O’Cinneide, Colm. 2008. Age Discrimination and Mandatory Retirement. European AntiDiscrimination Law Review 6: 13–21. Sargeant, Malcolm. 2006. Age Discrimination in Employment. Aldershot: Gower Publishing Limited. ———. 2011. Ageism and Age Discrimination. In Age Discrimination and Diversity, Multiple Discrimination from an Age Perspective, ed. Malcolm Sargeant, 1–15. Cambridge: Cambridge University Press. ———. 2012. Employer Justified Retirement Ages. Paper Presented at the Academy of European Law Anti-Discrimination Seminar (ERA), 1–19. Schiek, Dagmar. 2011. Age Discrimination Before the ECJ-Conceptual and Theoretical Issues. Common Market Law Review 48: 777–799. Schlachter, Monika. 2011. Mandatory Retirement and Age Discrimination under EU Law. The International Journal of Comparative Labour Law and Industrial Relations 27: 287–299. Shaw, Julia J.A., and Hillary J. Shaw. 2010. Recent Advancements in European Employment Law: Towards a Transformative Legal Formula for Preventing Workplace Ageism. International Journal of Comparative Labour Law and Industrial Relations 26: 273–294. Tobler, Christa. 2005. Indirect Discrimination, A Case Study in to the Development of the Legal Concept of Indirect Discrimination under EC Law, Social Europe Series. Vol. 10. Mortsel: Intersentia.

Age Discrimination as a Bone of Contention in the EU: A Psychological Perspective Ulrike Fasbender

Contents 1 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 Social Categorization Can Lead to Age Discrimination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 Reverse Age Discrimination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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Abstract Global population aging is driving the need for understanding and challenging social categorization as a cause of age discrimination. In this paper, I disentangled stereotypes (i.e., cognitive component of social categorization) from prejudices (i.e., affective component of social categorization) and explained their joint impact on discrimination toward older workers (i.e., behavioral component of social categorization). Moreover, I challenged the assumption that age discrimination happens primarily to older workers by pointing to research on reverse age discrimination depicting that both younger and older workers alike suffer from higher levels of age discrimination as compared to middle-aged workers. I highlighted that being too old or too young can be a cause of discrimination and thus encourage policymakers to combat discrimination on the grounds of any age.

U. Fasbender (*) Justus-Liebig-University Giessen, Work and Organizational Psychology, Giessen, Germany e-mail: [email protected] © Springer Nature Switzerland AG 2020 T. Giegerich (ed.), The European Union as Protector and Promoter of Equality, European Union and its Neighbours in a Globalized World 1, https://doi.org/10.1007/978-3-030-43764-0_21

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1 Introduction Extending working lives is on the agenda of policymakers to ensure fiscal sustainability in times of global population aging.1 In maintaining social security and pension systems, policymakers in many industrialized countries have gradually increased retirement ages.2 Therefore, workplaces become older and more age-diverse in nature.3 Although working side-by-side can lead to many positive outcomes, there is a risk that higher levels of age diversity lead to negative outcomes due to arising “faultlines” between younger and older workers.4 For this reason, the understanding of social categorization at work leading to the age discrimination of (younger and) older workers is of increasing importance. In the following, I comment on Gözde Kaya’s focal work (2020) “Age Discrimination as a Bone of Contention in the EU” taking a psychological perspective. In this regard, I will shed light on the process of social categorization that can lead to age discrimination at work. Specifically, I will disentangle stereotypes from prejudices and explain their joint impact on discrimination toward older workers. Furthermore, I will challenge the assumption that age discrimination happens primarily to older workers by focusing on reverse age discrimination. I will conclude with final remarks on age discrimination and highlight implications for research and practice.

2 Social Categorization Can Lead to Age Discrimination Investigating social categorization as in forming stereotypes and prejudices toward others has a long tradition in psychology; most notably the early conceptualizations of Gordon W. Allport. In his book entitled ‘The Nature of Prejudice’, Allport (1954) refers to prejudgment as a cognitive process in which we categorize people into groups based on perceived similarity vs. dissimilarity to oneself. In other words, people categorize others in so called “ingroup” and “outgroup”.5 On the one side, social categorization reflects the wish to be different from others (i.e., distinctiveness toward outgroup members), and on the other side, it helps individuals to gain social identity and to resolve self-concept uncertainty (i.e., assimilation toward ingroup members). Following the tripartite view of attitudes, stereotypes can be described as cognitive, prejudices as the affective, and discrimination as behavioral components

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European Commission (2014). Organization for Economic Cooperation and Development [OECD] (2015). 3 Truxillo et al. (2015). 4 Fasbender (2017) and Finkelstein et al. (2015). 5 Fiske (1998). 2

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of categorization-reactions—which are reactions toward people from groups based on their perceived difference from oneself.6 The most common and persisting stereotype seems to be that older workers show lower levels of job performance than their younger counterparts do. People often think of older workers as less motivated, less competent and more prone to stress, thus leading to declining job performance.7 Yet, to date, there are at least four metaanalyses8 providing no empirical support for a decrease of job performance as workers age. In fact, Ng and Feldman report even higher levels for prosocial behaviors (e.g., helping colleagues out or taking steps to prevent problems at work) and lower levels for counterproductive work behaviors (e.g., theft, sabotage).9 In addition, another meta-analysis on job attitudes10 reported positive relationships between employee age and affective commitment, interpersonal and organizational trust, job involvement, loyalty and organizational identification, which are expected to emerge in positive work outcomes. Although there are many (positive) and negative stereotypes about older workers11 it is important to note that stereotypes are often distorted and inaccurate as they are based on unfounded assumptions, preconceived ideas, or hearsay.12 Besides, it is false to infer that all members of an (age) group are similar.13 Prejudices have been far less studied than stereotypes.14 As both components are part of the same underlying social categorization process, there is a sizable relationship between stereotypes and prejudices.15 In fact, prejudices are often rationalized by stereotypes.16 In explaining prejudices toward older people, terror management theory17 has been influential. As thinking about one’s mortality is frightening to everyone, people create self-esteem as a belief of having an outlasting purpose and place in the world protecting us from feeling anxious.18 However, older people can be reminder of mortality.19 Therefore, being confronted with older people can result

6

Cuddy et al. (2007), Fasbender (2017) and Fiske (1998). e.g., Fiske et al. (2002), Krings et al. (2011) and Perry et al. (1996). 8 McEvoy and Cascio (1989), Ng and Feldman (2008), Sturman (2003) and Waldman and Avolio (1986). 9 Ng and Feldman (2008). 10 Ng and Feldman (2010). 11 See North and Fiske (2015) or Posthuma and Guerrero (2013) for a comprehensive cross-cultural overview of stereotypes. 12 Ng and Feldman (2012) and Posthuma and Campion (2009). 13 Fiske and Taylor (1991). 14 Fiske (1998) and Stangor (2016). 15 Dovidio et al. (1996). 16 Sinclair and Kunda (2000). 17 Greenberg et al. (1986, 2016). 18 Nelson (2011). 19 Martens et al. (2005). 7

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in higher anxiety and negative affectivity.20 In the workplace, this may lead to feeling alien around older colleagues, feeling uncomfortable about decisions made by an older supervisor or being afraid of older people in general. Research revealed that the fear of older people is linked to age-biased behavioral tendencies in working with older people, for example in the social work.21 Stereotypes and prejudices toward older people are seen as cause of age discrimination bringing thoughts and feelings into action against older workers.22 In fact, there is empirical evidence showing that important decisions at work are based on age-related stereotypes and prejudices.23 Yet, stereotypes and prejudices can be also a consequence of discrimination. For example, missing opportunities for training and development may lead older workers to be negatively evaluated and perceived as resistant to change, which can turn into a vicious circle of negative categorizationreactions.24 In the workplace, older people are likely to be disadvantaged in different areas of operations, such as recruitment and selection of employees, career opportunities, training and development, assignment of tasks and turnover or retention strategies. Most research has been conducted with regard to recruitment and selection of employees. There is clear evidence of age discrimination in hypothetical situations25 and in actual hiring practices.26 Although other applicant characteristics are relevant, age has been found to bias interviewers perceptions and hiring recommendations.27 For example, Krings et al. (2011) found that older workers were judged as less competent than younger workers, which was reflected in hiring situations. Regarding career opportunities, scholars have pointed to the argument of intergenerational solidarity, which can disadvantage older people by providing career opportunities for younger people at work.28 Research also revealed resentments toward older workers when it comes to training and development.29

20

Martens et al. (2004). Chonody et al. (2014). 22 See Marcus (2015) for a review on age discrimination. 23 E.g., Fasbender and Wang (2017a, b), Finkelstein et al. (1995), Meisner (2012) and Perry et al. (1996). 24 Fasbender (2017). 25 Fasbender and Wang (2017b) and Richardson and Webb (2013). 26 Gringart and Helmes (2001). 27 Morgeson et al. (2008). 28 Manfredi (2011). 29 Chiu et al. (2001) and Loretto and White (2006). 21

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3 Reverse Age Discrimination Researchers and policymakers primarily focus on the treatment of older workers.30 Kaya31 argues that: “the number as well as the scope of the cases brought before the courts reveal that it is mostly and particularly older people who are subject to this unfair treatment.” Yet, it is conceivable that younger people may underreport cases for different reasons. As they get older and therewith their situation likely changes, younger people may prefer to wait for the change to take place rather than make a case. Younger people may be at risk of losing their face when claiming legal support, whereas older people may have “nothing to lose”. In addition, younger people likely possess fewer resources (financial resources, knowledge about specific employment rights, legal literary) that are necessary to build a case. Scholars have highlighted that younger workers also suffer from structural trends as well as age discrimination embedded in organizational practices and labor law. Blackham explains that unemployment rates among younger workers is particularly high as compared to average unemployment rates.32 In addition, younger workers are often in rather precarious and insecure jobs; for example, younger workers (aged 16–24 years) hold 37% of zero-hour contracts in the UK.33 Psychological research showed that younger workers (under 30 years) report significantly higher levels of perceived age discrimination as compared to middle (30–49 years) and older workers (50 years and older), pointing to so called reverse age discrimination.34 A more recent study found a U-shaped pattern of age discrimination with higher levels for both younger and older workers as compared to middle-aged workers, highlighting that workers at either end of the age spectrum are most vulnerable to discrimination on the grounds of age.35 Despite their possible dissimilarities, younger and older workers alike are subject to more negative stereotypes,36 possess fewer resources and less influence as compared to middle-aged workers.37 Policymakers should therefore pay attention to reverse age discrimination and combat discrimination on the grounds of any age.

30

Finkelstein et al. (2013). Kaya (2020). 32 Blackham (2019). 33 Blackham (2019). 34 Snape and Redman (2003). 35 Marchiondo et al. (2016). 36 Finkelstein et al. (2013). 37 North and Fiske (2012). 31

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4 Conclusion Global population aging is driving the need for understanding and challenging social categorization as a cause of age discrimination. Social categorization means that people automatically categorize others into groups of “younger” and “older” workers based on perceived similarity. As part of this social categorization process, people form stereotypes (i.e., cognitive component of social categorization) and prejudices (i.e., affective component of social categorization) about these groups. Together age-based stereotypes and prejudices can lead to age discrimination (i.e., behavioral component of social categorization), bringing thoughts and feelings into action against older workers. Yet, age discrimination does not only happen to older workers, as younger workers also experience age discrimination (i.e., reverse age discrimination). Indeed, both younger and older workers alike suffer from higher levels of age discrimination as compared to middle-aged workers. Because being too old or too young can be a cause of discrimination, policymakers need to combat discrimination on the grounds of any age.

References Blackham, Alysia. 2019. Young Workers and Age Discrimination: Tensions and Conflicts. Industrial Law Journal 48: 1–33. https://doi.org/10.1093/indlaw/dwy004. Chiu, Warren C.K., Andy W. Chan, Ed Snape, and Tom Redman. 2001. Age Stereotypes and Discriminatory Attitudes Towards Older Workers: An East-West Comparison. Human Relations 54: 629–661. https://doi.org/10.1177/0018726701545004. Chonody, Jill M., Stephanie N. Webb, Rob Ranzijn, and Janet Bryan. 2014. Working with Older Adults: Predictors of Attitudes Towards Ageing in Psychology and Social Work Students, Faculty, and Practitioners. Australian Psychologist 49: 374–383. https://doi.org/10.1111/ap. 12056. Cuddy, Amy J.C., Susan T. Fiske, and Peter Glick. 2007. The BIAS Map: Behaviors from Intergroup Affect and Stereotypes. Journal of Personality and Social Psychology 92: 631–648. https://doi.org/10.1037/0022-3514.92.4.631. Dovidio, John F., John C. Brigham, Blair T. Johnson, and Samuel L. Gaertner. 1996. Stereotyping, Prejudice, and Discrimination: Another Look. In Stereotypes and Stereotyping, ed. C. Neil Macrae, Charles Stangor, and Miles Hewstone, 276–319. New York: Guilford Press. European Commission. 2014. Population Ageing in Europe: Facts, Implications and Policies. Procedia - Social and Behavioral Sciences. Vol. 19. Luxembourg: Publications Office of the European Union. https://doi.org/10.1016/j.sbspro.2011.05.106. Fasbender, Ulrike. 2017. Stereotype, Prejudice and Discrimination Toward Older Workers: A Wind of Change? In The Aging Workforce: Individual, Organizational and Societal Challenges, ed. John Field, Ronald J. Burke, and Carly L. Cooper, 159–184. London: Emerald Publishing. Fasbender, Ulrike, and Mo Wang. 2017a. Intergenerational Contact and Hiring Decisions About Older Workers. Journal of Managerial Psychology 3: 210–224. https://doi.org/10.1108/JMP11-2016-0339. ———. 2017b. Negative Attitudes Toward Older Workers and Hiring Decisions: Testing the Moderating Role of Decision Makers’ Core Self-Evaluations. Frontiers in Psychology 7: 1–10. https://doi.org/10.3389/fpsyg.2016.02057.

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Part IV

The EU as Promoter of Equality: Inside and Outside Perspective

The EU’s Law and Policy Framework for the Promotion of Gender Equality in the World Anne Thies

Contents 1 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 Legal Framework: Gender Equality Obligations Under EU Law and International Law . 2.1 The EU External Relations Law Framework and Gender Equality . . . . . . . . . . . . . . . . . 2.2 International Law and the EU’s Promotion of Gender Equality . . . . . . . . . . . . . . . . . . . . . 3 EU Policy Framework: Strategies and Action Plans . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 EU Tools for the Promotion of Gender Equality and Recent Practice . . . . . . . . . . . . . . . . . . . . . 4.1 Gender Mainstreaming . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.2 Gender Impact Assessment and Trade Agreements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.3 Making Gender Equality Objective Explicit . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.4 Examples of International Cooperation and Strategic Partnership . . . . . . . . . . . . . . . . . . . 5 Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

430 433 433 437 439 443 443 446 449 449 450 452

Abstract Gender equality has been recognised as a right and as ‘essential to achieve peaceful societies, with full human potential and sustainable development’ (UN). Yet, girls and women around the globe continue to suffer from discrimination and inequality with regard to education, health and related services, economic structure, participation and access to resources, public life and decision-making. States and other global actors’ foreign policy- and treaty-making can have implications for gender equality. This chapter maps the current law and policy landscape that frames external action of the European Union (EU) with respect to the promotion of gender equality in the world. Moreover, the chapter provides an overview on EU tools that have been employed to implement the EU’s commitment to gender equality in its external action, using examples to illustrate current practice and trends. The chapter demonstrates that the EU institutions have increasingly included gender equality related aspects in the EU’s development, trade and foreign policy measures. The chapter highlights that it is appropriate for the EU to thereby not merely impose the

A. Thies (*) School of Law, University of Reading, Reading, UK e-mail: [email protected] © Springer Nature Switzerland AG 2020 T. Giegerich (ed.), The European Union as Protector and Promoter of Equality, European Union and its Neighbours in a Globalized World 1, https://doi.org/10.1007/978-3-030-43764-0_22

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EU’s own standards and procedures on non-EU states but to endorse and promote instead international law and procedures to improve gender equality. The Lisbon Treaty has affected the scope of EU external competence by including gender equality objectives in external action. As a consequence, the need to accommodate gender equality objectives and considerations in any of the EU’s external activities finds a basis in the EU’s constitutional legal order and could fall increasingly within the remit of the European Court of Justice. The chapter claims that integrating gender equality in the EU’s external action framework has increased the EU’s own accountability for external action, in that the EU’s internal standards for the protection of rights and the promotion of gender equality have become a benchmark for EU action affecting gender equality within the EU and in non-EU countries.

1 Introduction ‘Women and girls represent half of the world’s population, and, therefore, also half of its potential’.1 Gender equality has been recognised not only as a fundamental human right but also as ‘essential to achieve peaceful societies, with full human potential and sustainable development’.2 Gender equality has been included as stand-alone sustainable development goal (Goal 5),3 and it has been demonstrated that ‘empowering women spurs productivity and economic growth’.4 Yet, according to recent reports of the UN, UN Women and the World Bank, girls and women around the globe continue to suffer from discrimination and inequality with regard to education, health and related services, economic structure, participation and access to resources, public life and decision-making.5 While equality has increased in some areas at least to some extent (e.g. education and health), there continues to be significant gender inequality with regard to access to economic opportunities.6 Moreover, ‘1 in 5 women and girls between the ages of 15-49 have reported

1

www.un.org/en/sections/issues-depth/gender-equality/. www.un.org/en/sections/issues-depth/gender-equality/; see also International Bank for Reconstruction and Development/The World Bank (2019), p. V [https://openknowledge.worldbank.org/ handle/10986/31689]. 3 https://www.un.org/sustainabledevelopment/gender-equality/. 4 https://www.un.org/en/sections/issues-depth/gender-equality/. 5 See for a recent analysis of global indicators and country specific developments, providing comparable statistics for men and women 2010–2017 International Bank for Reconstruction and Development/The World Bank (2019). For a historical overview of UN and UN Women work related to gender equality as well as links to relevant documents and treaties see www.un.org/en/ sections/issues-depth/gender-equality/. 6 See for a recent analysis of global indicators and country specific developments, providing comparable statistics for men and women 2010–2017 International Bank for Reconstruction and Development/The World Bank (2019). 2

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experiencing physical or sexual violence by an intimate partner within a 12-month period and 49 countries currently have no laws protecting women from domestic violence’.7 The international community’s awareness of gender inequality has drawn the attention to how states and regional actors tackle inequality at the national/ regional level and led to country/region specific data collection.8 At the same time, continuous inequality has raised questions related to the role of good global governance and the extent to which states and other global actors could or should use, for instance, their foreign policy, development aid and instruments for trade liberalisation as leverage to increase gender equality. Gender equality has played an important role in the development of the European Union’s (EU) internal legal order, which is significant for its identity as rules-based actor (see next section). The reach of the EU’s development aid provision, the EU’s important role in (international) trade and trade liberalisation around the globe, and its contribution to international peace and security through the EU institutions and/or EU Member States have brought the protection and promotion of gender equality in the world onto the EU’s external action agenda. The implications of the EU’s commitment to (gender) equality for its policy- and law-making within the EU internal legal order has been subject to academic research,9 and Member States have advocated the strengthening of the links between economic policy and gender equality to boost sustainable economic growth.10 However, not much scholarly attention has been given to the specific field of EU external relations law, and how the EU’s commitment to the promotion of gender equality and non-discrimination frames the EU’s external policy-, decision- and treaty-making and other external action. Some legal scholars have examined more broadly the EU as a ‘global player’ in human rights and the implications of the EU’s human rights commitments for the EU’s international policy- and treaty-making,11 and political scientists have analysed the implications of gender mainstreaming in

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www.un.org/sustainabledevelopment/gender-equality/. See e.g. the World Bank’s Data Portal, which holds data for countries and regions related to economic opportunities, health, education, public life and decision-making, agency and inequality by wealth: http://datatopics.worldbank.org/gender/. 9 See the contributions of Kadelbach and Guerra Martins in this book on equality as Part of the EU’s Constitutional Identity; See also Rossi and Casolari (2017), Holtmaat and Tobler (2005), pp. 399–425; see also work undertaken by the European Institute for Gender Equality (EIGE), which is an ‘autonomous body of the European Union, established to [inter alia] contribute to and strengthen the promotion of gender equality, including gender mainstreaming in all EU policies’; https://eige.europa.eu/about. 10 See e.g. National Board of Trade Sweden (2017), pp. 33–43; see for recent commitment of Finland’s Presidency of the EU Council https://eu2019.fi/en/backgrounders/gender-equality-policy. 11 See e.g. Leino-Sandberg (2008), pp. 259–290; De Búrca (2011), pp. 649–693; Wetzel (2011), Kube (2019). For a recent study on the EU’s role as promoter of environmental law on the global stage see Hadjiyianni (2019). 8

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EU external action.12 More analysis is required to do justice to the significance of gender equality for the EU’s rules-based nature, external action objectives and rights-based approach as a global actor, in particular since the entry into force of the Lisbon Treaty, which has connected more explicitly the EU’s constitutional legal order with its external action agenda. The present chapter begins filling this gap by mapping the current law and policy landscape that frames EU external action with respect to the promotion of gender equality in the world. In its first section, the chapter analyses the extent to which EU and international law frame the EU’s promotion of gender equality in the world. Subsequently, the chapter turns to the EU’s policy framework, consisting of EU strategies and guidelines that further legitimise and prescribe the EU’s promotion of gender equality in the world. In its third section, the chapter provides an overview on EU tools that have been employed to implement the EU’s commitment to gender equality in its external action, using examples to illustrate current practice and trends. The chapter demonstrates that EU law on gender equality affects EU external relations law in at least two ways. First, the EU’s commitment to equality shapes the legal and policy framework (under both EU and international law) for external (unilateral) action as well as bilateral/multilateral collaboration. As a consequence, the EU’s commitment to gender equality has led to the imposition of specific tasks and legal constraints on EU actors on the global stage (Commission, Council, European External Action Service [EEAS]) who have increasingly included gender equality related aspects in the EU’s development, trade and foreign policy measures. The chapter highlights that it is appropriate for the EU to thereby not merely impose the EU’s own standards and procedures on non-EU states but to endorse and promote instead international law and procedures to improve gender equality. Secondly, the endorsement of the Member States’ commitment to equality through the Lisbon Treaty has affected the scope of EU external competence in light of the inclusion of gender equality objectives in external action. As a consequence, the need to accommodate gender equality objectives and considerations in any of the EU’s external activities finds a basis in the EU’s constitutional legal order and could fall increasingly within the remit of the European Court of Justice. The chapter claims that integrating gender equality in the EU’s external action framework has increased the EU’s own accountability for external action, in that the EU’s internal standards for the protection of rights and the promotion of gender equality have become a benchmark for EU action affecting gender equality within the EU and in non-EU countries.

12 See e.g. David and Guerrina (2013), pp. 53–62; Allwood (2013), pp. 42–52; Pollack and HafnerBurton (2010), pp. 285–313.

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2 Legal Framework: Gender Equality Obligations Under EU Law and International Law Equality is one of the core values of the EU, and the Member States’ shared commitment to combat discrimination through the EU is established firmly in the EU Treaties and the Charter of Fundamental Rights.13 According to Article 2 of the Treaty on European Union (TEU), the EU is ‘founded on the values’ of respect for, inter alia, ‘human dignity, [. . .] equality, the rule of law and respect for human rights’, and ‘these values are common to the Member States in a society in which pluralism, non-discrimination, tolerance, justice, solidarity and equality between women and men prevail’. The Treaties similarly state that the EU ‘shall combat social exclusion and discrimination, and shall promote social justice and protection, equality between women and men’ (Article 3 (3) TEU) and observe ‘in all its activities, [. . .] the principle of the equality of its citizens, who shall receive equal attention from its institutions, bodies, offices and agencies’ (Article 9 TEU). Being one of the ‘provisions having general application’, Article 8 of the Treaty on the Functioning of the European Union (TFEU) states that ‘[i]n all its activities, the Union shall aim to eliminate inequalities, and to promote equality, between men and women’. Moreover, the Lisbon Treaty incorporated the promotion of human rights and gender equality in its external action agenda (Article 3 (5), 21 TEU), which will be discussed in more detail in the subsequent sections of this chapter. As a consequence, the Lisbon Treaty unequivocally mapped the EU’s commitment to equality and individual rights onto the legal framework of its external action, affirming the EU’s identity as a global actor of a rules-based nature with an explicit commitment to good global governance. At the same time, there are international legal obligations of the Member States as well as the EU as a whole that frame EU external action, including with regard to matters of equality. The EU and international law sources related to gender equality and their reach in the context of EU external relations law are outlined in the coming paragraphs.

2.1

The EU External Relations Law Framework and Gender Equality

The Lisbon Treaty has codified the Member States’ commitment to strengthen the EU as a global actor that ‘in its relations with the wider world [. . .] shall uphold and promote its values and interests and contribute to the protection of its citizens’; the EU is asked to contribute, inter alia, to the ‘protection of human rights’ (Article 3 (5) TEU). Being one of the core values of the EU (Article 2 TEU), equality is to be

13 Article 23 of the Charter of Fundamental Rights of the European Union. See also Kadelbach and Guerra Martins in this book.

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upheld and promoted in the EU’s external activities. The EU’s (internal) identity shapes the scope for manoeuvre of the EU as a rules-based global actor that cannot deviate from its internal standards. Article 21 (1) TEU states that the ‘Union’s action on the international scene shall be guided by the principles which have inspired its own creation, development and enlargement, and which it seeks to advance in the wider world: democracy, the rule of law, the universality and indivisibility of human rights and fundamental freedoms, respect for human dignity, the principles of equality and solidarity, and respect for the principles of the United Nations Charter and international law’. The EU principle of equality has thus been recognised explicitly also as one of the core principles of the EU’s internal legal order that frames EU external action and is to be advanced by the EU as a global actor. In addition to equality being a core value and guiding principle for EU external action, the elimination of inequalities and the promotion of equality are concrete objectives of the EU not only with regard to ‘all of its activities’ (see Articles 8 and 10 TFEU)14 but also with regard to EU external action in particular. Article 21 (2) TEU codified a list of EU external action objectives, which include the safeguarding of its values, the consolidation and support of human rights, the fostering of sustainable economic, social and environmental development, and the promotion of good global governance. The respect for, the protection and the promotion of gender equality falls within the scope of a range of EU external objectives; gender equality matters from the perspective of global themes of sustainability and global governance as well as the perspective of individuals who seek protection of their human rights.15 Article 21 (3) TFEU clarifies that the EU ‘shall respect the principles and pursue the objectives set out in paragraphs 1 and 2 in the development and implementation of the different areas of the Union’s external action [. . .], and of the external aspects of its other policies’. In other words, Article 21 (3) TFEU prescribes the compliance with internal EU values and principles in external action, whether they are undertaken in pursuance of specific external objectives or in pursuance of internal EU objectives through external action. The EU is expected to at least respect gender equality and individual rights, among other things, in any of its external activities. The Lisbon Treaty has also intertwined external action undertaken in particular external policy fields with the EU’s commitment to gender equality. More specifically, the Treaty explicitly included the EU’s ‘principles and objectives’ in the framework for the adoption and implementation of such external policies, such as development cooperation (Article 208 (1) subparagraph 1 TFEU) and humanitarian aid (Article 214 (1) TFEU). The development cooperation ‘shall have as its primary

Article 8 TFEU: ‘In all its activities, the Union shall aim to eliminate inequalities, and to promote equality, between men and women.’; Article 10 TFEU: ‘In defining and implementing its policies and activities, the Union shall aim to combat discrimination based on sex, racial or ethnic origin, religion or belief, disability, age or sexual orientation.’ 15 See also National Board of Trade Sweden (2017), pp. 34 f. 14

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objective the reduction and, in the long term, the eradication of poverty’ (Article 208 (1) subparagraph 2 TFEU), and the promotion of gender equality has been recognised as a significant factor in shaping the EU’s activities.16 In the context of humanitarian aid, the Treaty refers explicitly to the need to comply with, inter alia, the principle of non-discrimination when conducting humanitarian aid operations (Article 214 (2) TFEU). Also in the area of trade, ‘[t]he Union’s action on the international scene [. . .] shall be guided by the principles, pursue the objectives and be conducted in accordance with the general provisions laid down in Chapter 1 of Title V of the Treaty on European Union’ (Article 205 TFEU), which includes the EU’s commitment to gender equality. Moreover, the EU’s common foreign and security policy, which is traditionally subject to a high degree of political discretion, is embedded in the EU’s legal framework and needs to comply with EU principles and objectives (Article 24 (2) TEU). As the discussion below (Sect. 4) will show, the EU has started to actively promote gender equality through the inclusion of gender equality chapters in its international trade agreements and close collaboration with other international actors to promote gender equality (e.g. UN, UNWOMEN). According to Article 216 (1) TFEU, the EU may conclude international agreements, inter alia, ‘where the conclusion of an agreement is necessary in order to achieve, within the framework of the Union’s policies, one of the objectives referred to in the Treaties, or is provided for in a legally binding Union act or is likely to affect common rules or alter their scope’. This raises questions regarding the extent to which the EU’s commitment to (gender) equality can legitimise the EU to conclude relevant international agreements and thereby strengthen its voice on the global stage and contribute to good global governance. Practice in the field of human rights protection has shown the capacity of the EU to become a signatory of human rights agreements, in addition to its Member States.17 The Convention on the Rights of Persons with Disabilities (CRPD) was the first human rights treaty ratified by the EU in 2010.18 In 2017, the EU signed the Council of Europe Convention on Preventing and Combating Violence against Women and Domestic Violence (Istanbul Convention), which, at the time of writing, the EU has not yet ratified.19 The EU signed the Istanbul Convention on the basis of two Council Decisions, of which one focuses on judicial cooperation in criminal matters, and the other one on asylum and non-refoulement. A degree of legal uncertainty remains in light of the EU’s limited competence invoked when signing the Istanbul Convention, possibly reflecting 16

See Sect. 4 for a discussion of the EU’s tools of gender mainstreaming and impact assessment, and their employment in the context of EU development cooperation. 17 On mixity see e.g. Chamon (2018), pp. 137–165; Hillion and Koutrakos (2010). 18 For further detail and full text of the Convention see www.un.org/development/desa/disabilities/ convention-on-the-rights-of-persons-with-disabilities.html. See for an analysis of the EU’s promotion of the adoption of its own internal model of disability discrimination at the international level De Búrca (2010), pp. 174–196. 19 For further detail and full text of the Convention see www.coe.int/en/web/istanbul-convention/ home?.

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diverging Member States’ views related to delimitation of domestic violence and ‘family matters’. As a consequence, the EU needs to collaborate with its Member States to implement effectively agreements that do not fall entirely within EU competence. The challenges related to the mixity of agreements also affect the EU’s capacity to contribute to the agreements’ implementation and operation at the international level.20 Recent years have increased EU institutional awareness of the significance of gender equality, which has led to the allocation of personnel and resources to its promotion. For instance, the European External Action Service (EEAS) has a dedicated position of ‘Gender Adviser’,21 who, inter alia, represents the EU on gender related matters in international fora.22 As will be discussed further below (Sect. 3), in its renewed Gender Action Plan (2016–2020), the EU reiterates that ‘gender equality is at the core of European values and enshrined within the European Union (EU) legal and political framework. The EU and its Member States are at the forefront of the protection, fulfilment and enjoyment of human rights by women and girls and strongly promote them in all external relations’.23 What is interesting with regard to the allocation of personnel and resources is that the fourth focus area of the GAP II is inward looking and about shifting the European Commission services and the EEAS’s institutional culture to deliver more effectively on EU commitments.24 In a nutshell, the Lisbon Treaty has made the legal framework for EU external relations more explicit, in that it has introduced benchmarks and aspirations that mirror the EU’s internal legal order also with regard to the protection of rights and the promotion of (gender) equality. Equality has been recognised as value, guiding principle and objective of EU external action (Articles 2, 3 (5) TEU, 8, 21 (1) and (2) TFEU). At the same time, the EU’s commitment to equality is crosscutting and valid for any external action (Articles 3 (5), 21 (3) TEU, 8 TFEU). Moreover, the EU’s equality objective arguably shapes EU external competence in all policy areas, enabling the EU to take external action in the interest of gender equality, including the conclusion of international agreements (see e.g. Article 216 (1) TFEU).

20

See e.g. Article 1 (d) and Chapter VIII of the Istanbul Convention on international cooperation under the Convention. 21 See Organisation Chart as of 16 November 2019 https://eeas.europa.eu/sites/eeas/files/2019-1611_-_eeas_2.0_orgchart.pdf. 22 See e.g. for EU statement at UN Security Council Opening Debate on Towards the implementation of the Women, Peace and Security Agenda: moving from commitments to accomplishments in preparation for the commemoration of the 20th anniversary of UNSCR 1325; https://eeas.europa. eu/delegations/un-new-york/69606/node/69606_et. 23 Council conclusions on EU Gender Action Plan 2016–2020, 26 October 2015, p. 2; www. consilium.europa.eu/media/24467/st13201-en15.pdf. 24 See also Sect. 3 below.

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International Law and the EU’s Promotion of Gender Equality

All EU Member States are parties to the Convention on the Elimination of Discrimination against Women (CEDAW) and the International Labour Organization (ILO) as well as gender equality related ILO Conventions.25 Even though the EU itself is not party to CEDAW or the ILO, it has referred to CEDAW and ILO Conventions related to gender equality as point of reference in its strategic documents.26 Moreover, the EU has incorporated international obligations under CEDAW as well as ILO Conventions in its international (trade) agreements with non-EU states, endorsing international benchmarks related to gender equality and non-discrimination.27 The prohibition of gender discrimination under the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR; Article 14 ECHR, and Article 1 of Protocol 12) binds all EU Member States. Even though Article 6 (2) TEU envisages the EU’s accession to the ECHR, the EU has not yet acceded to the ECHR.28 Yet, the EU’s own fundamental rights developed as general principles as well as its Charter on the Protection of Fundamental Rights and Freedoms have incorporated the prohibition of gender discrimination as granted by the ECHR protection as minimum into EU law.29 The EU has also endorsed the United Nations Security Council Resolution 1325 on Women, Peace and Security, which was adopted in 2000 and subject to High-

25 The Convention on the Elimination of all Forms of Discrimination against Women (CEDAW) was adopted in 1979 and entered into force in 1981; for the full text of CEDAW see: www.ohchr. org/en/professionalinterest/pages/cedaw.aspx. See also details on ILO work and links to key gender equality conventions www.ilo.org/global/topics/equality-and-discrimination/gender-equality/lang %2D%2Den/index.htm. 26 See e.g. GAP II for reference to CEDAW as one of the benchmarks for enabling legislation as part of the EU’s efforts ‘to increase girls’ and women’s agency, voice and participation in social, economic, political and civil life’ (p. 26) and CEDAW recommendations and ILO standards in the formulation of indicators measuring EU success in ‘preventing, and responding to, all forms of violence against girls and women’ (p. 16) and economic and social empowerment (p. 23) www. consilium.europa.eu/media/24467/st13201-en15.pdf; see also EU institutions & MS ‘Joint Statement’—The New European Consensus on Development ‘Our World, our Dignity, our Future’, 2017, paras 33 (re CEDAW) and 54 (re ILO); https://ec.europa.eu/europeaid/sites/devco/files/ european-consensus-on-evelopment-20170602_en.pdf. 27 See e.g. Article 2 of the Trade and Gender Chapter proposed by the EU as part of the draft Trade Modernisation Agreement between the EU and Chile, according to which both parties must reaffirm their commitments in effectively implementing CEDAW as well as ILO Convention 100 on Equal Remuneration and ILO Convention 111 concerning the Non-discrimination in Respect of employment and Occupation; https://trade.ec.europa.eu/doclib/docs/2018/june/tradoc_156962.pdf. 28 In Opinion 2/13, Opinion of the Court Accession of the European Union to the ECHR, (CJEU 18 December 2014) the CJEU considered the draft accession agreement to be incompatible with the EU Treaties. 29 Articles 21, 23, 52 (3) Charter; www.europarl.europa.eu/charter/pdf/text_en.pdf.

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level Review in 2015 and 2019.30 According to UNSCR 1325, states are to prevent infringements of women rights, to support women’s participation in peace negotiations/post-conflict, to protect from gender-based violence.31 The EU has incorporated the objectives of UNSCR 1325 in its own strategies and agendas (see below Sect. 3).32 The previous section mentioned the Council of Europe Convention on Combating Violence against Women and Domestic Violence (Istanbul Convention), which was adopted in 2011, as an example of an international human rights treaty that has been signed by the EU in 2017 (and ratified by the majority of EU MS). The Istanbul Convention shapes the EU’s legal framework also for further external activities related to gender equality, in that it contains a chapter on international cooperation (Chapter VIII).33 The EU has endorsed also several other international instruments aimed at the promotion of gender equality (among other matters), which are worth mentioning. Even though they are more easily categorised as ‘soft law’ than legally binding, the instruments have received a high degree of public attention and been employed by the EU as points of reference in its own strategies, agendas and (trade) agreements (see below Sect. 4). The main purpose of those international instruments has been to recognise equality as a human right and to empower women and girls in the interest of (sustainable) development. For instance, the EU has endorsed the Bejing Declaration, requiring states to recognise equality as a matter of human rights, and to take action in order to empower women as a matter of social justice, (sustainable) development and peace.34 The EU has also committed itself to the 2030 Agenda for Sustainable Development of 2015 that contains Goal 5, according to which states are committed ‘to achieve gender equality and the empowerment of all women and girls’.35 Also the Global Call to Action of the UN SG’s High Level Panel for Women’s Economic Empowerment of 2016 is worth mentioning, as it endorsed not only sustainable development goals but also international treaties, such as CEDAW and several ILO Conventions.36

30 https://undocs.org/S/RES/1325(2000). The 2015 High-Level review resulted in the unanimous adoption of Resolution 2242 (2015) to Improve Implementation of Landmark Text on Women, Peace, Security Agenda; https://undocs.org/S/RES/2242(2015); www.un.org/press/en/2015/ sc12076.doc.htm. In October 2019, the Security Council unanimously urged recommitment to the WPS Agenda in Resolution 2493 (2019); https://undocs.org/S/RES/2493(2019); www.un.org/ press/en/2019/sc13998.doc.htm. 31 For a blog earlier this year on achievements and shortcomings of the Women, Peace and Security Resolution 1325 see Jha et al. (2019). 32 See e.g. GAP II, para. 2 www.consilium.europa.eu/media/24467/st13201-en15.pdf. 33 www.coe.int/en/web/istanbul-convention/home?. 34 See e.g. GAP II, para. 2; www.consilium.europa.eu/media/24467/st13201-en15.pdf. 35 See e.g. GAP II, para. 3; www.consilium.europa.eu/media/24467/st13201-en15.pdf. 36 www.unwomen.org/en/news/stories/2017/3/new-final-report-of-the-un-high-level-panel-onwomens-economic-empowerment.

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The EU has contributed and subscribed to the G7 Roadmap for a GenderResponsive Economic Environment of 2017,37 which includes states’ external action as an important area for further action. According to the Roadmap, states should ‘intensify [their] efforts and consider strengthening the mainstreaming of gender equality and women’s rights and empowerment in [their] external action and programs targeting economic and productive sectors, and in development cooperation policies’. The EU might not always be a contracting party to important international conventions in its own right, but the EU has endorsed Member State obligations and relied on international hard and soft law to incorporate points of reference in its own legal instruments and international treaties. It would go beyond the scope of this chapter to assess the legal implications of the EU’s endorsement in each case. It suffices to conclude here that the extensive international treaty membership of EU Member States, EU Member States’ contribution to international declarations related to gender equality and the EU’s own high standards related to gender equality have facilitated the endorsement of conventions (e.g. CEDAW, ILO Conventions), the UN Security Council agenda on Women, Peace and Security (UN Security Council Resolution 1325), the Sustainable Development Goal Agenda 2030 and other soft law instruments (e.g. Beijing Declaration). In sum, international law has complemented the EU’s own Treaty framework for the promotion of gender equality in the world. The EU has integrated international law and standards in its development, trade and foreign and security policy to improve gender equality in the world, arguably reducing the risk of being criticised for imposing its own internal standards on non-EU actors. The following section provides an overview of how the EU institutions have started to establish a policy framework for the EU’s promotion of gender equality that incorporates both EU and international law and benchmarks.

3 EU Policy Framework: Strategies and Action Plans The Lisbon Treaty reforms have strengthened the legal basis for the EU’s promotion of gender equality in the world by incorporating the promotion of values, principles and objectives also into external relations specific provisions. At the same time, the EU’s commitment to comply with international law on gender equality has shaped the EU’s policy framework. More specifically, the EU institutions have adopted strategies, action plans and policy specific measures, which have included explicitly the promotion of gender equality as one of their core elements. The EU has 37

While the EU is not itself one of the seven members (Canada, France, Germany, Italy, Japan, UK, US), it has observer status. The Commission, together with the EEAS and on behalf of the EU has played an important role in preparing the G7 Roadmap; see https://ec.europa.eu/commission/ presscorner/detail/en/MEMO_18_1602, and EU Commission (2018), Chapter 5: pp. 42 ff. See for full text of Roadmap www.consilium.europa.eu/media/23560/g7-gender-roadmap.pdf.

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started implementing its Treaty commitments to the promotion of gender equality in a range of instruments that address either any kind of EU external action or specific policy fields in particular. Soon after the entry into force of the Lisbon Treaty, in March 2010, the Commission adopted the ‘EU Plan of Action on Gender Equality and Women’s Empowerment in Development (2010–2015)—An operational framework to enhance the implementation of the existing EU policy frameworks and to ensure accountability’.38 In September 2010, the Commission adopted the Strategy for equality between women and men 2010–2015,39 which followed on from the Commission’s Roadmap for equality between women and men (2006–2010).40 One of the six chapters of the Strategy focuses on ‘Gender equality in external relations’ (Chapter 5), in which it is recognised that ‘the EU can exercise significant influence in fostering gender equality and women’s empowerment worldwide’ through all relevant policies under its external action.41 The strategy highlighted as relevant areas: accession to the EU (i.e. the need for candidate countries ‘to fully embrace the fundamental principle of equality between men and women’); the European neighbourhood policy and support provided by the EU to promote gender equality; development; cooperation with international organisations (ILO, OECD, UN, African Union, UN Women), supporting ‘civil society participation, capacity building and advocacy on gender equality and women’s empowerment’; the EU is ‘committed to protecting women in times of conflict and post-conflict, and to ensuring women’s full participation in conflict prevention, peace building and reconstruction processes’ (implementing UNSCRes 1325 and 1820); integrate gender considerations into humanitarian aid and gender equality in EU trade policy. According to the identified four key actions, the Commission will: • • • •

Monitor and support adherence to the Copenhagen criteria for accession to the EU in the field of equal treatment between women and men, and assist Western Balkan countries and Turkey with the transposition and enforcement of legislation. Implement the EU Plan of Action on Gender Equality and Women’s Empowerment in Development (2010–2015). Continue to encourage ENP partner countries to promote gender equality through regular policy dialogue, exchange of experience and by exploring possibilities for assistance under the European Neighbourhood and Partnership Instrument. Further integrate gender considerations into EU humanitarian aid.42

In addition to the chapter dedicated to gender equality, the Strategy covers in its Chapter 6 horizontal issues, of which those relating to tools for gender equality are of particular relevance in the context of external action. More specifically, the Strategy 38

https://europa.eu/capacity4dev/public-gender/document/operational-framework-enhance-imple mentation-existing-eu-policy-frameworks-and-ensure-accou. 39 https://op.europa.eu/en/publication-detail/-/publication/c58de824-e42a-48ce-8d36a16f30ef701b/language-en. 40 https://eur-lex.europa.eu/legal-content/EN/TXT/HTML/?uri¼LEGISSUM:c10404&from¼EN. 41 European Commission (2011), p. 28. 42 European Commission (2011), p. 30.

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commits to gender mainstreaming as to be ‘implemented as an integral part of the Commission’s policymaking, including via the impact assessment and evaluation processes.43 In 2011, the Council reiterated the necessity to undertake gender mainstreaming in the context of all EU external action in the European Pact for Gender Equality (2011–2020).44 In 2012, the Council adopted the EU Strategic Framework and Action Plan on Human Rights and Democracy, which, inter alia, refers in its action plan to a rights-based approach to development cooperation and to human rights and gender equality to be systematically included in conflict prevention and crisis management activities.45 The Gender Action Plan I (2010–2015) was criticised by the European Parliament for ‘its narrow scope, absence of gender-responsive budgeting, weak understanding of the gender equality framework by the EU delegations, lack of commitment on the part of the EU leadership, and lack of institutional architecture and incentives to motivate and adequately support staff’.46 In 2017, the EU institutions and the EU Member States issued the joint statement, The New European Consensus on Development ‘Our World, our Dignity, our Future’, in which they reiterated their rights-based approach that is to be implemented by the EU as well as its Member States.47 Gender equality was considered to be ‘at the core of the EU’s values and [. . .] enshrined in its legal and political framework’; gender equality was seen as ‘vital for achieving the SDGs’ and as ‘[cutting] across the whole 2030 Agenda’, and the promotion of women and girls’ rights, gender equality, the empowerment of women and girls and their protection was again named as a priority across all areas of action.48 In addition to the above-mentioned instruments, the EU renewed its Gender Action Plan (2016–2020) (GAP II), according to which ‘gender equality is at the core of European values and enshrined within the European Union (EU) legal and political framework. The EU and its Member States are at the forefront of the protection, fulfilment and enjoyment of human rights by women and girls and strongly promote them in all external relations’.49 The GAP II has focused on taking

43

Ibid., p. 34. Council Conclusions of 7 March 2011 on European Pact for Gender Equality (2011-2020), OJ C 155/10–13 (2011). 45 www.consilium.europa.eu/uedocs/cms_data/docs/pressdata/EN/foraff/131181.pdf. 46 EP Resolution of 31 May 2018 on the implementation of the Joint Staff Working Document (SWD(2015)0182) Gender equality and women’s empowerment: transforming the lives of girls and women through EU external relations 2016–2020 (2017/2012(INI)), subpara. D. 47 EU institutions & MS ‘Joint Statement’—The New European Consensus on Development ‘Our World, our Dignity, our Future’, 2017, para. 16; https://ec.europa.eu/europeaid/sites/devco/files/ european-consensus-on-evelopment-20170602_en.pdf. 48 EU institutions & MS ‘Joint Statement’—The New European Consensus on Development ‘Our World, our Dignity, our Future’, 2017, paras. 15, 20, 33, p. 13; https://ec.europa.eu/europeaid/sites/ devco/files/european-consensus-on-evelopment-20170602_en.pdf. 49 Council conclusions on EU Gender Action Plan 2016-2020, 26 October 2015, p. 2; www. consilium.europa.eu/media/24467/st13201-en15.pdf. 44

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action and transforming lives through four areas: (1) ensuring girls and women’s physical and psychological integrity; (2) promoting the economic and social rights/ empowerment of girls and women; (3) strengthening girls and women’s voice and participation; and (4) shifting the European Commission services and the EEAS’s institutional culture to deliver more effectively on EU commitments. Also in the context of trade policy, the EU has made its commitment to the promotion of gender equality more explicit. In 2015, the Commission Trade and Investment Strategy ‘Trade for all: towards a more responsible trade and investment policy’ was adopted.50 Accordingly, EU trade policy ‘must promote and defend European values’.51 The EU has increasingly included provisions on gender equality in its trade agreements with third states.52 In 2016, the EU adopted its Global Strategy for Foreign and Security Policy (EUGS), an important step in strengthening a framework for foreign policy that is united, responsible, promotes peace and security, advances prosperity that is shared, meets sustainability requirements, promotes human rights, tackles poverty and ‘promote[s] a rules-based global order with multilateralism as its key principle and the United Nations at its core’.53 The EUGS identified five priority areas, which were endorsed by the Foreign Affairs Council in October 2016: (i) investing in the resilience of states and societies to the East and South, and an integrated approach to conflicts and crises; (ii) strengthening security and defence; (iii) reinforcing the internal/external policy nexus, with special attention to migration, counterterrorism and hybrid threats; (iv) updating existing or preparing new regional and thematic strategies; and (v) stepping up public diplomacy efforts.54 In that context, the EU also committed itself to ‘cross-cutting dimensions within all five building blocks’: (1) mainstreaming human rights, women, peace and security, gender equality and women’s empowerment into all EU policies; and (2) sustainable development goals.55 The EU has placed the promotion of gender equality at the core of its framework for external action and ambitious agenda as a global actor that is contributing to responsible international treaty making and good global governance. As will be discussed below, the EU has also employed concrete tools to promote gender 50

European Commission (2015). Ibid., p. 7. 52 See below Sect. 4.1. for examples of recent practice of gender mainstreaming in the context of trade policy and agreements. 53 For full text, see https://eeas.europa.eu/sites/eeas/files/eugs_review_web_0.pdf; for further details also concerning the implementation of the strategy see https://eeas.europa.eu/topics/eu-globalstrategy_en. 54 Council, CFSP Annual Report 2017, 10650/17, 5 July 2017, p. 3; https://eeas.europa.eu/sites/ eeas/files/st10650_en-cfsp_report_2017.pdf. 55 Ibid. 51

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equality in its unilateral and multilateral activities. Moreover, the EU has increasingly invested in international cooperation with other international actors (e.g. UN, ILO) to advance gender equality in the world.

4 EU Tools for the Promotion of Gender Equality and Recent Practice The previous sections of this chapter have demonstrated that the EU is as a global actor both empowered and obliged to promote gender equality through its external action. The EU Treaties provide the legal basis for the external promotion of gender equality in principle, requiring the EU to aim to eliminate inequalities, and to promote gender equality, in all of its activities (Article 3 (5) TEU, Article 8 TFEU). The EU is required to promote gender equality on the basis of its values, principles and objectives, Member States’ human rights obligations and the necessity to achieve sustainable development goals—which the EU has endorsed in its strategies and external policies (Article 21 TEU). Applicable to all external policy fields, the EU has chosen a crosscutting focus of its contributions to gender equality in the world: physical and psychological integrity, empowerment, and voice and participation, while also acknowledging the need for ‘shifting EU institutional culture’ to better equip itself to address those challenges. The EU’s commitment to the promotion of gender equality has gone hand in hand with its commitment to multilateralism, which has led to collaboration with other international actors. This section introduces the most prominent tools that the EU has employed to weave its equality objective into any of its external action: gender mainstreaming, (gender) impact assessment, and the requirement to make explicit the degree of inclusion of the EU’s gender equality objective in external action. In order to illustrate the implications of using those tools, examples of recent practice will be analysed.

4.1

Gender Mainstreaming

According to the European Institute for Gender Equality (EIGE), ‘[g]ender mainstreaming has been embraced internationally as a strategy towards realising gender equality. It involves the integration of a gender perspective into the preparation, design, implementation, monitoring and evaluation of policies, regulatory measures and spending programmes, with a view to promoting equality between women and men, and combating discrimination.’56

56

https://eige.europa.eu/gender-mainstreaming/what-is-gender-mainstreaming; for a 2019 report of EIGE on ‘Gender mainstreaming: gender statistics and indicators’ see https://eige.europa.eu/publi cations/gender-mainstreaming-gender-statistics-and-indicators.

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The EU and its Member States have been committed to gender mainstreaming also in the context of external action.57 In the context of the EU’s development cooperation, the EU has developed an online ‘Resource Package: Tools to advance the 2030 Sustainable Development Agenda and Gender Equality’, which ‘intends to offer practical guidance on how to promote gender equality and achieve more equitable and sustainable development results’ (e.g. budget support, sector wide approach, project approach, gender mainstreaming building blocks).58 In 2015, the EU Foreign Affairs Council presented the EU’s framework in support of transitional justice, which also advocates the integration of a gender dimension and gender mainstreaming.59 The EU’s strengthened position as special observer at the UN60 has enabled it to voice the significance of gender mainstreaming on the global stage. For instance, at a UN SC meeting on 25 October 2018, the EU—represented by Ambassador Mara Marinaki, the Principal Advisor on Gender and on Women, Peace and Security of the European External Action Service (EEAS)—delivered its statement ‘Promoting the Implementation of the Women, Peace and Security Agenda and Sustaining Peace and Security Agenda and Sustaining Peace through Women’s Political and Economic Empowerment’. Accordingly, The EU will [. . .] continue to actively promote gender mainstreaming as a key strategy together with gender balance and specific actions to achieve gender equality and women’s empowerment by ensuring the integration of a gender perspective throughout all policy frameworks including foreign and security, development, trade, migration, justice, education, preventing and countering violent extremism, counterterrorism, finance, and humanitarian assistance.61

The Principal Advisor on Gender highlighted again the EU priorities on the WPS agenda, making reference to examples of EU practice, and recognising the need to undertake much more work ‘on gender budgeting to quantify how our policies affect women and men differently, and to establish as a generalised standard practice to

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See e.g. European Commission (2011), p. 34; Council Conclusions of 7 March 2011 on European Pact for Gender Equality (2011-2020), OJ C 155/10–13 (2011); GAP II (2016-2020), para. 11 www.consilium.europa.eu/media/24467/st13201-en15.pdf; EU institutions & MS ‘Joint Statement’—The New European Consensus on Development ‘Our World, our Dignity, our Future’, 2017, p. 13 https://ec.europa.eu/europeaid/sites/devco/files/european-consensus-on-evelopment20170602_en.pdf. 58 http://eugender.itcilo.org/. 59 General Secretariat of the Council of the EU, EU’s support to transitional justice – Council Conclusions, 13576/15, 16 November 2015, p. 29 http://data.consilium.europa.eu/doc/document/ ST-13576-2015-INIT/en/pdf. For a critique of the EU’s policy on transnational justice see Martin de Almagro (2017), p. 2. 60 In 2011, the EU was granted enhanced observer status by the UN General Assembly; see Participation of the European Union in the work of the United Nations, Resolution adopted by the General Assembly on 3 May 2011, GA Res A/65/276 https://undocs.org/A/RES/65/276. 61 https://eeas.europa.eu/delegations/un-new-york/52808/node/52808_et.

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look at every priority issue through a gender lens, and with proper parliamentary oversight’62: (1) women’s political participation and leadership as a ‘prerequisite for the creation of inclusive and peaceful societies, sustainable development and peace’, with reference to efforts of the EU in Afghanistan, Syria and Mali, and the 2018 launch of the Gaziantep Women Platform; (2) ‘action against sexual and gender-based violence in conflict’ (e.g. support UN, action against conflict-related sexual violence, stressing the importance of training peacekeeping personnel on preventing sexual exploitation and abuse), with reference to the SPOTLIGHT and other EU initiatives to protect from gender based violence; (3) the promotion of ‘pro-active policies for women’s economic empowerment, which will also create sizable returns for our economies and societies’, with reference to 2018 EU launch of ‘WE EMP♀WER’ together with UN Women and ILO and close cooperation with local, regional and international stakeholders ‘to make progress towards the economic empowerment of women by creating an enabling environment where active engagement by the corporate sector flows together with public policy effort’; (4) strengthening national implementation frameworks on WPS Agenda in EU Member States. The EU has recently adopted its first ever Action Plan on Women, Peace and Security, which was endorsed by the Political and Security Committee (Article 38 TEU) on 16 July 2019.63 The Action Plan includes concrete steps and constitutes an operational tool for the implementation of the Women, Peace and Security agenda and EU priorities for the coming years (2019–2024). On 29 October 2019, Ambassador Mara Marinaki delivered a further Statement on behalf of the EU and its Member States at the Security Council Open Debate on Towards the implementation of the WPS agenda: moving from commitments to accomplishments in preparation for the commemoration of the 20th anniversary of UNSCR 1325.64 The EU again endorsed its commitment to the WPS Agenda and international cooperation and stated that the EU wanted to lead by example and that: [the EU’s] Action Plan on WPS has as its key objectives to increase women’s leadership and full, equal and meaningful participation and to firmly emphasize the centrality of gender analysis and the mainstreaming of gender perspective. The other objectives are the prevention of conflict and conflict-related human rights violations and the promotion of full accountability policies and institutional reforms, the protection of women’s and girls’ rights, access to justice as well as the promotion of institutional mechanisms to help prevent

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https://eeas.europa.eu/delegations/un-new-york/52808/node/52808_et. https://data.consilium.europa.eu/doc/document/ST-11031-2019-INIT/en/pdf; europa.eu/en/meetings/mpo/2019/7/political-and-security-committee-(280585). 64 https://eeas.europa.eu/delegations/un-new-york/69606/node/69606_et. 63

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all forms of sexual and gender-based violence (SGBV) and to support effective relief and recovery.[. . .] Tomorrow, we will take a step forward to scale up our cooperation on WPS at a regional level. Together with the UN, the African Union and NATO, and with OSCE as an observer, the Initiative on the Regional Acceleration of Resolution (RAR) 1325 will be launched. Together with our partners we aim to strengthen the connectivity and cooperation between practitioners at all levels. We believe that this unique initiative will, among other benefits, prove the advantages of multilateralism in moving the WPS agenda forward. [emphasis added]

4.2

Gender Impact Assessment and Trade Agreements

In the context of EU trade policy and agreements with third states, gender impact assessment has been employed as a tool for gender mainstreaming.65 In 2012, the Council adopted the EU’s Strategic Framework and Action Plan on Human Rights,66 and human rights have been included explicitly in the EU’s impact assessment, implementing Article 21 TEU.67 The Commission adopted ‘Guidelines on the analysis of human rights impacts in impact assessments for trade-related policy initiatives’ (2015), which (a) focus on the methodology of impact assessment when proposing a new policy initiative and when negotiating a bilateral or plurilateral trade agreement; and (b) describe the principles and approach applicable to the entire cycle of a policy, and hence also in the context of ex post evaluations.68 The Commission also adopted its strategy ‘Trade for all—Towards a more responsible trade and investment policy’ (2015), which has the objectives to deliver economic results for consumers, workers and small companies, to increase efficiency and transparency, and to ensure ‘EU trade policy is not just about interests but also about values’.69 In 2016, the Commission published the second edition of its Handbook for Trade Sustainability Impact Assessment, which included the assessment of human rights impacts and underlined ‘the importance of close dialogue with all relevant stakeholders, including the more vulnerable ones’.70 The Commission is currently revising its Better Regulation Agenda,71 and has developed a Better

65 For a summary of the critique of current practice see National Board of Trade Sweden (2017), p. 43. 66 www.consilium.europa.eu/uedocs/cms_data/docs/pressdata/EN/foraff/131181.pdf. 67 It should be noted that human rights clauses have been included in trade agreements since the early 1990s, see Bartels (2014). 68 http://trade.ec.europa.eu/doclib/docs/2015/july/tradoc_153591.pdf. 69 http://trade.ec.europa.eu/doclib/docs/2015/october/tradoc_153846.pdf. 70 http://trade.ec.europa.eu/doclib/docs/2016/april/tradoc_154464.PDF; with reference to the full list of SIAs conducted, see http://ec.europa.eu/trade/policy/policy-making/analysis/sustainabilityimpact-assessments. 71 https://ec.europa.eu/info/law/law-making-process/planning-and-proposing-law/better-regulationwhy-and-how_en.

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Regulation Tool Box that also provides guidance in the context of impact assessment in external action.72 The EU’s sustainable impact assessment integrates international standards, as it ‘includes an assessment, based on the latest methodology available— the UNCTAD Trade and Gender Toolbox73—of the impact on women in their roles as workers, entrepreneurs, traders, and consumers’.74 The EU’s free trade and association agreements have been an important way for the promotion of gender equality: they often make reference to international conventions on gender equality (e.g. CEDAW) and the UN’s Fourth World Conference on Women in Beijing (1995), and they sometimes include clear objectives, such as the strengthening of dialogue and cooperation to promote gender equality.75 The Cotonou Agreement between the EU and the members of the African, Caribbean and Pacific Group of States has been considered particularly significant, as it ‘prescribes the integration of gender equality into all areas of the agreement’.76 For the first time in EU trade negotiations the EU’s current proposal for a Modernised Agreement with Chile includes an entire chapter on gender equality, again anchoring international law and standards (e.g. CEDAW, ILO Conventions).77 This chapter on gender equality was drafted following an ex post evaluation of the impact of the current agreement and an assessment of the potential impact of a modernised agreement with a chapter on gender equality to address, for example, workforce inequalities.78 The EU’s promotion of gender equality has become an increasingly visible dimension of EU trade policy in principle.79 However, the EU has been criticised for its institutional lack of awareness of EU human and fundamental rights obligations in detail, and for a lack of coherence in its approach in the promotion of human rights through trade and investment policy.80 While Trade and Sustainable Development chapters include labour and environmental rights, human rights have not been incorporated more fully into the text of the other parts of trade and investment

72 https://ec.europa.eu/info/law/law-making-process/planning-and-proposing-law/better-regulationwhy-and-how/better-regulation-guidelines-and-toolbox/better-regulation-toolbox_en. 73 https://unctad.org/en/PublicationsLibrary/ditc2017d1_en.pdf. 74 European Commission (2019), Chapter 5: p. 54. 75 National Board of Trade Sweden (2017), p. 42, with reference to the EU’s Association Agreements/Deep and Comprehensive Free Trade Areas (DCFTAs) with Georgia, Moldavia, Ukraine, Chapter on Employment, Social and Equal Opportunities. 76 National Board of Trade Sweden (2017), p. 42. 77 See full text of current draft chapter on gender equality at https://trade.ec.europa.eu/doclib/docs/ 2018/june/tradoc_156962.pdf. 78 For an overview and regular updates, see http://ec.europa.eu/trade/policy/countries-and-regions/ countries/chile/. 79 Thies (2019), p. 81. 80 Kube (2017, 2019) and Velluti (2016), pp. 41–68.

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agreements.81 As argued elsewhere, even the most recent Trade and Sustainable Development chapters are excluded from dispute settlement.82 Whereas the enforcement of labour and environmental rights could play a particularly strong role in the context of investment arbitration, it is left to arbitrators to determine the precise impact of parties’ commitment to environmental and human rights on investment protection.83 It has been suggested in academic commentary that ex-ante human rights impact assessment and civil society monitoring bodies could be further developed to give precise shape to the EU’s ‘constitutional human rights mandate’ and break it down ‘into clear benchmarks to which EU international economic law making can be held accountable’.84 The EU Commission has been encouraged by civil society and the European Parliament to use trade agreement clauses ‘in a more robust way in order to respond to serious breaches of human rights and democratic principles’ by third countries; so far, the EU has entered dialogue on human right issues but has never suspended any trade commitments under its agreements.85 However, introducing sanctions for violations of human rights remains controversial.86 With regard to the coherence of the EU’s approach and its leverage in future trade negotiations with important trading nations (e.g. China and India), it is concerning that the EU has integrated human rights clauses in trade agreements with arguably less powerful states (e.g. Armenia, Chile, Colombia, Mexico, Western Balkan countries) but not in trade agreements with more powerful states (e.g. Canada, Japan, South Korea).87 In addition to EU’s own priorities and the nature of diplomatic relations, Member States’ retained powers regarding human rights policies, as well as their diverging

81

Kube (2019), p. 226. Thies (2019), p. 81; See, for example, Art 13.16 (1) of the EU-Vietnam Trade Agreement (NB: there is no chapter on SD in the EU-Vietnam Investment Protection Agreement), which was signed on 30 June 2019; Art 15 (5) of the Trade part of the EU-Mercosur Association Agreement (agreed on in principle on 28 June 2019); Art X.13 (2) of the Chapter on SD proposed by the EU to Australia in February 2019. 83 Kube (2019), p. 226. 84 Kube (2019), p. 2. 85 See recent briefing and policy podcast ‘Human rights in EU trade agreements: the human rights clause and its application’, by the European Parliament Research Service, 8 July 2019, https:// epthinktank.eu/2019/07/08/human-rights-in-eu-trade-agreements-the-human-rights-clause-and-itsapplication. 86 National Board of Trade Sweden (2017), pp. 42 ff., with reference to further commentary. 87 Thies (2019), p. 82; See, for example, Art 13.16 (1) of the EU-Vietnam Trade Agreement (NB: there is no chapter on SD in the EU-Vietnam Investment Protection Agreement), which was signed on 30 June 2019; Art 15 (5) of the Trade part of the EU-Mercosur Association Agreement (agreed on in principle on 28 June 2019); Art X.13 (2) of the Chapter on SD proposed by the EU to Australia in February 2019. 82

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interests and domestic pressures with regard to different EU trading partners, might hinder the development of a coherent EU voice on those matters.88

4.3

Making Gender Equality Objective Explicit

In addition to the tools of gender mainstreaming and impact assessment, the EU has committed itself through its Global Action Plan II (2016–2020) to include its equality objective when exercising any of its external competences, including development, trade, enlargement, and the common foreign and security policy (CFSP). As a consequence, the EU institutions are expected to engage with the degree to which the pursuing of the equality objective is part of their external action. Making explicit to what extent external policy-, decision- and treaty-making aim at the promotion of gender equality has led to more transparency and has arguably strengthened EU accountability for including the EU’s gender equality objective in its external action.89

4.4

Examples of International Cooperation and Strategic Partnership

The EU has entered strategic partnerships and joint programmes with a range of international organisations to contribute to the promotion of democracy, rights and (gender) equality in the world. Related to the promotion of gender equality in particular, the EU and UN Women have been in a strategic partnership since 2012, ‘working jointly for gender equality and women’s empowerment worldwide to reach a Planet 50–50 by 2030’.90 The EU, UN Women and the ILO entered a

88 Thies (2019), p. 82; See, for example, Art 13.16 (1) of the EU-Vietnam Trade Agreement (NB: there is no chapter on SD in the EU-Vietnam Investment Protection Agreement), which was signed on 30 June 2019; Art 15 (5) of the Trade part of the EU-Mercosur Association Agreement (agreed on in principle on 28 June 2019); Art X.13 (2) of the Chapter on SD proposed by the EU to Australia in February 2019. 89 See e.g. the Explanatory Memorandum in the Proposal for a Council Decision on the signing, on behalf of the European Union, of the Council of Europe Convention on preventing and combating violence against women and domestic violence COM/2016/0111 final - 2016/063 (NLE) of 4 March 2016, https://eur-lex.europa.eu/legal-content/EN/TXT/?uri¼CELEX%3A52016PC0111. 90 Joint statement on the Memorandum of Understanding between the European Union and the United Nations Entity for Gender Equality and the Empowerment of Women, 15 June 2016; www. unwomen.org/en/news/stories/2016/6/joint-statement-on-the-mou-between-the-eu-and-un-women; see for list of activities: https://www.unwomen.org/en/partnerships/donor-countries/top-donors/ european-union.

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strategic partnership working towards economic empowerment of women at work (through the private sector).91 In 2017, the EU, UN and UN Women started the Spotlight Initiative to eliminate all forms of violence against women and girls in line with the 2030 Agenda for Sustainable Development, and the EU is the main contributor to the budget of EUR 500 million.92 The Spotlight Initiative consists of regional programmes and focused investment in targeted countries (Asia, Africa, Latin America, the Pacific and the Caribbean); the initiative ‘aims at mobilising commitment of political leaders and contributing to achieving the Sustainable Development Goals (SDGs), and more specifically Goal 5 on Gender Equality and Goal 16 on inclusive and peaceful societies’ by ‘building new multi-stakeholder partnerships and providing largescale, targeted support’.93 For example, EUR 250 million are allocated to work in Africa where the initiative focuses on the elimination of sexual and gender-based violence, supports regional initiatives on fighting female genital mutilation and child marriage and includes joint activities with the Africa Union.94 In 2018, the EU, UN Women and ILO launched the 3-year programme ‘Promoting women’s economic empowerment at work through responsible business in G7 countries’ (WE EMPOWER) to support sustainable, inclusive and equitable economic growth.95 The aims of the programme are to enable policy dialogues, knowledge exchange and learning opportunities for the private sector in particular, supporting to support their implementation of the Women’s Empowerment Principles, and fostering corporate delivery on gender equality dimensions of the 2030 Sustainable Development Goals Agenda.96

5 Conclusion The Lisbon Treaty established a clear link between the EU’s external action ambitions and gender equality promotion in the world. The EU’s commitment to its principles, values and objectives is reflected in its external action agenda, which positioned the promotion of gender equality as one of the EU’s priorities. The EU has created positions and allocated resources to strengthen gender mainstreaming, undertake impact assessment and international cooperation, partnerships and joined 91

www.empowerwomen.org/en/resources/documents/2018/06/womens-economic-empowermentthrough-responsive-business-conduct-in-g7-countries. 92 www.un.org/en/spotlight-initiative/index.shtml. 93 https://ec.europa.eu/commission/presscorner/detail/en/MEMO_18_5904. 94 For focus and budget in other countries see https://ec.europa.eu/commission/presscorner/detail/ en/MEMO_18_5904. 95 www.empowerwomen.org/en/resources/documents/2018/03/we-empower-programme-consulta tion?lang¼en. 96 www.empowerwomen.org/en/resources/documents/2018/03/we-empower-programme-consulta tion?lang¼en; www.weps.org/about.

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initiatives. Recent institutional developments and policy-/treaty-making practice has demonstrated that there is an increased awareness of the EU institutions’ responsibility to tackle gender equality challenges through (all) the EU’s external action. The EU institutions have also provided detailed staff guidance on mainstreaming and impact assessment (e.g. toolbox/online resources for development cooperation) and established a framework for monitoring and accountability.97 Notwithstanding the reference to gender equality as a cross-policy commitment in the EU’s legal and policy framework for external action, it is difficult to conclude that the promotion of gender equality in itself can be considered an external policy in its own right.98 In accordance with the well-known principle of conferral, the EU has only competence to address identified challenges—including inequalities of any kind—to the extent the Member States have conferred such competence onto the EU.99 While gender equality objectives might shape the scope of EU external competences, legal uncertainty continues to exist with regard to the EU’s capacity to contribute to international law-making focusing on gender equality in particular.100 The EU’s contribution to global governance and the promotion of gender equality would benefit from more coherence and coordination amongst EU institutions and with EU Member States.101 While there is a legal framework that enables the EU as a global actor to promote its values and principles in the world, further political will of the Member States is needed for the EU to realise its full potential. As recognised above, the EU institutions have started to allocate personnel and resources to activities that help promoting gender equality in the world. However, it will remain challenging to match the EU’s ambition with appropriate resources (e.g. develop internal expertise, systematic assessment of local needs/collaboration with national stakeholders). Moreover, the EU’s capacity and credibility as a promoter of democracy, human rights and gender equality require the EU to tackle related internal challenges (e.g. the rule of law crisis). The requirement to include gender equality objectives in foreign policy-/treatymaking has led to more transparency regarding the EU institutions’ engagement with gender equality objectives and the importance they are given in EU external action. Joint Staff Working Document “Gender Equality and Women’s Empowerment: Transforming the Lives of Girls and Women through EU External Relations 2016–2020”, https://ec.europa.eu/antitrafficking/eu-policy/joint-staff-working-document-gender-equality-and-womens-empowermenttransforming-lives_en. 98 The wording of the GAP II seems to suggest that the EU can undertake ‘targeted gender action’, see GAP II, p. 10 www.consilium.europa.eu/media/24467/st13201-en15.pdf. 99 Article 5 (2) TEU states that ‘[u]nder the principle of conferral, the Union shall act only within the limits of the competences conferred upon it by the Member States in the Treaties to attain the objectives set out therein. Competences not conferred upon the Union in the Treaties remain with the Member States.’ 100 See above text at notes 17 ff. with regard to the need for mixed agreements. 101 See also Joint Staff Working Document “Gender Equality and Women’s Empowerment: Transforming the Lives of Girls and Women through EU External Relations 2016–2020”, p. 13 and pp. 20 ff., Annex 1, https://ec.europa.eu/anti-trafficking/eu-policy/joint-staff-working-docu ment-gender-equality-and-womens-empowerment-transforming-lives_en. 97

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Such increased transparency has strengthened the EU system of political accountability, in that institutional choices/decisions that affect gender equality, and their underlying reasoning related to the impact of gender equality considerations, are subject to scrutiny by other EU institutions, Member States and other stakeholders, including affected individuals.102 At the same time, the EU (institutions) might be held legally accountable for decisions—related, for instance, to the invoking of EU external competence in light of gender equality objectives or the actual content of EU decisions—by all stakeholders challenging the extent to which gender equality objectives have been accommodated. As a consequence, the EU’s engagement with gender equality objectives in EU external action might lead to judicial review and require judicial clarification of the reach of the EU’s legal obligations related to the promotion of gender equality. In the particular context of international treaty-making, the EU has been increasingly committed to integrate gender equality commitments of all treaty partners. This has not been limited to implanting EU standards but involved gender impact assessment of international treaties on both the EU and non-EU states. At the same time, the EU has promoted the inclusion of international law benchmarks, arguably living up to its commitment to international principles and multilateralism. Establishing international law as a yardstick for the protection and promotion of gender equality and non-discrimination has been a way for the EU to contribute actively to good global governance, arguably reducing the risk of being criticised for imposing the EU’s own standards and values on non-EU states through EU external action. The inclusion of international law has also enabled the EU to rely on external mechanisms to enforce non-EU states’ commitment to gender equality, complementing the EU’s commitment to dialogue and partnership for the promotion of gender equality.

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See for reporting obligations e.g. Joint Staff Working Document “Gender Equality and Women’s Empowerment: Transforming the Lives of Girls and Women through EU External Relations 2016–2020”, pp. 15 ff., https://ec.europa.eu/anti-trafficking/eu-policy/joint-staff-working-docu ment-gender-equality-and-womens-empowerment-transforming-lives_en. See for the EU Commission’s Evaluation Roadmap regarding the evaluation of EU external action support in the policy area of gender equality and women empowerment e.g. Directorate-General for Neighbourhood and Enlargement Negotiations (2019); See also EU Commission (2019), pp. 48 ff. 102

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Chamon, Merijn. 2018. Constitutional Limits to the Political Choice for Mixity. In Constitutional Issues of EU External Relations Law, ed. Eleftheria Neframi and Mauro Gatti, 137–165. BadenBaden: Nomos. David, Maxine, and Roberta Guerrina. 2013. Gender and European External Relations: Dominant Discourses and Unintended Consequences of Gender Mainstreaming. Women’s Studies International Forum 39: 53–62. De Búrca, Gráinne. 2010. The EU in the Negotiation of the UN Disability Convention. European Law Review 35: 174–196. ———. 2011. The Road Not Taken: The EU as a Global Human Rights Actor. American Journal of International Law 105: 649–693. Directorate General for Neighbourhood and Enlargement Negotiations (European Commission) 2019. Evaluation of the EU’s External Action Support in the Area of Gender Equality and Women Empowerment. Brussels Publications Office of the European Union, https://op.europa. eu/en/publication-detail/-/publication/de3ec579-c7e3-11e9-9d01-01aa75ed71a1/language-en. European Commission. 2011. Strategy for Equality Between Women and Men 2010–2015. Brussels: Publications Office of the European Union. ———. 2015. Trade for All – Towards a More Responsible Trade and Investment Policy. Brussels: Publications Office of the European Union. https://trade.ec.europa.eu/doclib/docs/2015/october/ tradoc_153846.pdf. ———. 2018. 2018 Report on Equality Between Women and Men in the EU. Brussels: Publications Office of the European Union. ———. 2019. 2019 Report on Equality Between Women and Men in the EU. Brussels: Publications Office of the European Union. Hadjiyianni, Ioanna. 2019. The EU as a Global Regulator for Environmental Protection - A Legitimacy Perspective. London: Hart. Hillion, Christophe, and Panos Koutrakos, eds. 2010. Mixed Agreements Revisited – The EU and its Member States in the World. Oxford: Hart. Holtmaat, Rikki, and Christa Tobler. 2005. CEDAW and the European Union’s Policy in the Field of Combating Gender Discrimination. Maastricht Journal of European and Comparative Law 12: 399–425. International Bank for Reconstruction and Development / The World Bank. 2019. The Little Data Book on Gender. https://openknowledge.worldbank.org/handle/10986/31689. Jha, Anushna, Cham, Youmna and Gebhard, Valerie. 2019. UNSCR 1325: Time to Move from Letter to Spirit. https://blogs.lse.ac.uk/internationaldevelopment/2019/03/19/unscr-1325-timeto-move-from-letter-to-spirit. Kube, Vivian. 2017. The Polisario case: Do EU Fundamental Rights Matter for EU Trade Policies?, EJIL: Talk! 3 February 2017, www.ejiltalk.org/the-polisario-case-do-eu-fundamental-rightsmatter-for-eu-trade-polices. ———. 2019. EU Human Rights, International Investment Law and Participation Operationalizing the EU Foreign Policy Objective to Global Human Rights Protection. Heidelberg: Springer. Leino-Sandberg, Päivi. 2008. Journey Towards All That Is Good and Beautiful. Fundamental Rights and ‘Common Values’ as Guiding Principles of EU Foreign Relations Law. In EU Foreign Relations Law: Constitutional Fundamentals, ed. Marise Cremona and Bruno de Witte, 259–290. Oxford: Hart. Martin de Almagro, Maria. 2017. Transitional Justice and Women, Peace and Security – A Critical Reading of the EU Framework. LSE Women, Peace and Security Working Paper Series https:// blogs.lse.ac.uk/wps/2017/06/12/transitional-justice-and-women-peace-and-security-a-criticalreading-of-the-eu-framework-maria-martin-de-almagro-52017. National Board of Trade Sweden. 2017. Trade and Social Sustainability. An Overview and Analysis. www.kommers.se/publikationer/Rapporter/2017/Trade-and-social-sustainability. Pollack, Mark A., and Emilie M. Hafner-Burton. 2010. Mainstreaming International Governance: The Environment, Gender, and IO Performance in the European Union. Review of International Organizations 5: 285–313.

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From Hierarchy to Dialogue: EU-Africa Exchange on the Right to Equality and the Prohibition of Discrimination by Religious Organisations Rosaan Krüger

Contents 1 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 European Union Discrimination Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.1 A Balancing Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 The African Regional Human Rights Framework . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.1 Specific African Examples . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.1.1 Kenya and South Africa: Equality First . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.2 Uganda and Zimbabwe: Autonomy for Religious Organisations . . . . . . . . . . . . . . . . . . . . 4 Conclusion: Leading the Discussion from the Bottom Up . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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Abstract European Union law on the prohibition of discrimination by religious organisations provides for a balance to be struck between the competing rights of citizens to be free from discrimination, and religious organisations to manage their own affairs in accordance with it ethos. In the contribution, I illustrate the subtle yet significant shift in the balance as a result of recent European Court of Justice case law on discrimination from private sources. This authoritative interpretation by the Court will inform the application of EU and national law by the different member states. In response to the EU position, I consider the overarching African human rights framework, and in the absence of regional directive on discrimination from private sources, I turn the attention to case law from specific jurisdictions in a bottom-up approach. While the absence of regional directives to deal with matters of discrimination leaves citizens in African states vulnerable, the absence of the guidance allows for progressive and unconventional interpretation of the prohibition of equality that brings new perspective to enrich both the EU and African responses to discrimination from private sources.

R. Krüger (*) Rhodes University, Faculty of Law, Grahamstown, South Africa e-mail: [email protected] © Springer Nature Switzerland AG 2020 T. Giegerich (ed.), The European Union as Protector and Promoter of Equality, European Union and its Neighbours in a Globalized World 1, https://doi.org/10.1007/978-3-030-43764-0_23

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1 Introduction Discrimination that undermines the equality right of human beings is ubiquitous. National, regional and international legal frameworks seek to address this phenomenon in similar yet distinguishable ways. In this contribution, I attempt to start/create a dialogue about the legal frameworks adopted in the European Union and on the African continent to combat discrimination. In doing so, I consider how African examples can inform European understanding and response to the phenomenon and vice versa. I focus specifically on discrimination from private sources, and, in particular, discrimination by religious organisations in the context of employment. For this dialogue to deepen our understanding of the equality right and the concomitant prohibition of discrimination, it is necessary to bear the differences between the EU and African regional human rights framework in mind. The EU legal standards on discrimination law forms part of the broader established EU legal and human rights framework. The structures responsible for overseeing its implementation have been in existence for some time and they function effectively.1 By way of contrast, the African regional human rights framework is in its infancy. For example, the regional framework provides no specific guidance to member states to the African Charter on Human and Peoples’ Rights or to member states of the African Union on dealing with issues of discrimination.2 As a result of the status and operation of these different frameworks, I argue that the EU framework inevitably relies on a top-down approach, with the Court of Justice of the European Union providing ultimate guidance to national courts for the interpretation of the applicable legal standard. In response to this top-down approach, I contrast the EU standard with specific examples from African states dealing with discrimination from private sources. Given the lack of a regional equivalent standard framework, I characterise these examples as illustrating a bottom-up approach to dealing with discrimination with the national frameworks more prominent than the regional. While these two different approaches appear at odds, I argue that the recent approaches followed by some African states represent an increasingly progressive and definitive choice in favour of equality. For the EU, in the face of increasing diversity of its population, such development is worthy of consideration. For this reason a dialogue between Europe and Africa, rather than the well-established patterns of engagement in which Africa receives and Europe gives3 is advised. 1

See, in general, FRA (2018), chapter 1. For a brief overview of the history of the African Charter on Human and Peoples’ Rights, the African Commission on Human and Peoples’ Rights, the African Union and the African Court on Human and Peoples’ Rights see . 3 Colonialism established a relationship between European colonial powers and their African colonies as one of European superiority and African inferiority. While African states gained independence after World War II, the hierarchical nature of the relationship did not change much, as many African states remained dependent on aid, mainly from European states. For analysis of the impact of colonialism, see Mamdani (1996). See also Rutabizwa (2010), p. 209. 2

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The dialogue begins with an exposition of the EU discrimination law framework, and its specific provisions allowing for exemptions to religious organisations. In particular, I discuss case law interpreting the European standard after the 2000 Council Directive providing for equal employment4 and the allowance for exemptions by the directive and the further restatements thereof. The African equivalent makes brief reference to the African Charter on Human and Peoples’ rights and the overall regional standard in relation to the prohibition of discrimination. But it is the particular the case discussions from African states, Uganda, Zambia, Kenya and specifically South Africa that enliven the discussion. The increasing preference in favour of the equality right in matters of discrimination from private sources in at least Kenya and Africa invites a reconsideration of established standards and precedents by EU lawmakers and courts.

2 European Union Discrimination Law The initial establishment of the European Economic Community focused on the establishment of a free trade zone. This was the case since human rights considerations were deemed to be separate from trade.5 The only provision resembling of the protection of human rights is in the 1957 Treaty which established the EEC, related to equal pay for equal work performed by men and women.6 As the European Court of Justice heard more cases in which human rights issues were determinative, the Court’s jurisprudence developed to incorporate human rights into the general principles of community law, and particularly in respect of the right to equality and non-discrimination.7 This precedent-based system provided important guidance for member states in relation to non-discrimination on the basis of sex. It also created an impetus for the directive on equal pay for equal work.8 But it was in 2000 that EU law cast the net wider in its prohibition of discrimination. In 2000, the Charter of Fundamental Rights of the European Union was proclaimed to consolidate EU human rights law.9 Title III of the Charter which explicitly prohibits ‘discrimination based on any ground such as sex, race, colour, ethnic or social origin, genetic features, language, religion or belief, political or any other opinion, membership of a national minority, property, birth, disability, age or

4 Council Directive 2000/78/EC establishing a General Framework for Equal Treatment in Employment and Occupation OJ L 303/16 – 22 (2000). 5 FRA (2018), p. 18. 6 Burri and Prechal (2008), p. 4. 7 FRA (2018), p. 20. 8 Burri and Prechal (2008), p. 4. 9 Charter of Fundamental Rights of the European Union OJ C 326/391 - 407 (2012).

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sexual orientation’.10 It further affirms religious, cultural and linguistic diversity,11 and highlights the importance of the equality right and the prohibition of discrimination between men and women,12 and in relation to children,13 the elderly14 and people living with disabilities.15 Following the coming into force of the Amsterdam Treaty which expanded the powers of the European Parliament significantly16 a number Council Directives issued after 2000 extended the scope of the prohibition of discrimination significantly. In the employment context, the Equal Employment Directive17 introduced additional prohibited grounds to the prohibition of discrimination in employment, namely, religion or belief, disability, age or sexual orientation. Insofar as racial and ethnic discrimination is concerned the Directive18 expanded the reach of EU discrimination law for persons of colour in relation to access to employment or selfemployment, education, social security, health care, social advantages and access to and supply of goods. As a result of these Directives and subsequent Directives in 2004,19 2010,20 as well as the 2006 recasting Directive21 EU law strikes widely in prohibiting discrimination on the basis of sex or race. Member states are required to provide for the prohibition of race and sex discrimination in its domestic law in the employment context and beyond. However, insofar as discrimination on the grounds of sexual orientation, age, religious beliefs and disability is concerned, EU law only requires members states to prohibit discrimination in the employment context.

10

Article 21 CFR. Article 22 CFR. 12 Article 23 CFR. 13 Article 24 CFR. 14 Article 25 CFR. 15 Article 26 CFR. 16 Article 13 of the Amsterdam Treaty reads as follows: “Without prejudice to the other provisions of this Treaty and within the limits of the powers conferred by it upon the Community, the Council, acting unanimously on a proposal from the Commission and after consulting the European Parliament, may take appropriate action to combat discrimination based on sex, racial or ethnic origin, religion or belief, disability, age or sexual orientation.” 17 Council Directive 2000/78/EC establishing a General Framework for Equal Treatment in Employment and Occupation OJ L 303/16 – 22 (2000), (hereafter the Equal Employment Directive). 18 Council Directive 2000/43/EC implementing the Principle of Equal Treatment between Persons Irrespective of Racial or Ethnic Origin OJ L 180/22 – 26 (2000). 19 Council Directive 2004/113/EC implementing the Principle of Equal Treatment between Men and Women in the Access to and Supply of Goods and Services OJ L 373/37 – 43 (2004). 20 Directive 2010/41/EU of the European Parliament and of the Council on the application of the Principle of Equal Treatment Between Men and Women Engaged in an Activity in a Self-Employed Capacity OJ L 180/1 – 6 (2010). 21 Directive 2006/54/EC of The European Parliament and of the Council on the implementation of the Principle of Equal Opportunities and Equal Treatment of Men and Women in Matters of Employment and Occupation (Recast) OJ L 204/23 – 36 (2006). 11

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Thus, it is fair to say that, while EU law has significantly expanded the scope of protection against discrimination over the past few decades, its application has been limited to the workplace in respect of the majority of grounds, excluding sex and race. In this way, the transformational potential of EU law is limited. When the restriction is read in conjunction the exemption incorporated in the Equal Employment Directive regarding sexual orientation, age, religious beliefs and disability, the scope of the protection mandated by EU law shrinks even more. Article 4(2), in particular, permits member states to exempt churches, and public or private organisations that base their ethos on religion or belief to differentiate in their employment practices by determining that a ‘person’s religion or belief constitute a genuine, legitimate and justified occupational requirement’. The exemption, it would seem, allows member states to determine where to strike the balance between competing rights, as equality is juxtaposed with the right to freedom of religion. It is to this balancing exercise in the case law of national courts and the European Court of Justice that I wish to turn the attention to in the next section.

2.1

A Balancing Act

R (Amicus and Others) v Secretary of State22 is a decision of the Administrative Court (Queen’s Bench) of the United Kingdom of 2004. The matter concerned a challenge to the UK’s Employment Equity Regulations (Sexual Orientation) of 2003. These regulations were promulgated under the European Communities Act 1972 to give effect to the Council Directive. It was alleged that these regulations were incompatible with that Directive. The Administrative Court held that the regulations which permitted discrimination in employment for the purposes of organised religion were compatible with the Directive’s allowance for exceptions for genuine, legitimate and justified occupational requirements. In the view of the court, the regulations struck a balance between competing rights appropriately, as required by EU law, by allowing religious institutions to discriminate in employment and in providing educational opportunities on the basis of sexual orientation.23 It was more than a decade later before a similar matter came before a national court of a member state of the EU, namely Germany. Complainant v Respondent24 involved a complaint of unfair dismissal of the complainant, a social education worker, in the employ of the respondent, an organisation affiliated with the Roman Catholic Church. The complainant had been dismissed from his position as a social education worker following his termination of his membership of the Roman Catholic Church. The complainant terminated his membership in protest against sexual abuse in the church, and challenged his dismissal as unfair. The Federal

22

EWHC 860, R (Amicus and Others) v Secretary of State (EWHC 26 April 2004). EWHC 860, R (Amicus and Others) v Secretary of State (EWHC 26 April 2004), para. 123. 24 AZR 579/12, Complainant v Respondent (German Federal Labour Court 25 April 2013). 23

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Labour Court upheld an earlier finding of the court a quo that the contract of employment which required loyalty to the church was in line with the statutory permission granted to churches to manage their own affairs. This meant that the church was permitted to choose not to employ a person who does not belong to that church. These decisions from the national courts in the UK and Germany viewed the legislative choices of the respective legislatures to grant exemption from discrimination law to churches as permissible. In both instances, the balance struck by the law favoured religious organisations’ freedom above the legal commitment to equality and non-discrimination. As the Directive allow member states through their legislatures to determine where to strike the balance, the courts endorsed the legislative choices without interrogating these choices. Since these decisions in the national courts, Germany referred two matters to the European Court of Justice. In these matters, deference to the legislature and its choice to balance competing rights in favour of religious organisations and their complete autonomy have been contested. While the most recent jurisprudence of the European Court indicates a shift in favour of equality, the fundamental approach of the Court remains that of finding balance between competing rights. In Egenberger,25 the applicant challenged the requirement of religious affiliation with a protestant church for a fixed-term contract of employment as discriminatory in terms of EU and German law.26 From the outset of the matter, the Diaconate relied on the exemption granted to religious organisations in the General Law on Equal Treatment in accordance with EU law.27 In its view, the membership requirement was not discriminatory as the organisation was exempted from compliance with the law prohibiting discrimination. In the Labour Court Egenberger was successful. That court held that she was discriminated against, and she was awarded a small sum in damages. Dissatisfied with the amount awarded in damages, Egenberger approached the Higher Labour Court for Berlin and Brandenburg on appeal.28 That appeal was dismissed. Subsequently, she referred a legal question to the Federal Labour Court, which, in turn referred pertinent legal questions to the Court of Justice.29 In the Court of Justice, the first question concerned who the decision-maker has to be who in determines whether religion constitutes ‘a genuine, legitimate and justified occupational requirement’, bearing in mind the ethos of the organisation. If that determination is left to the church itself, the church would be allowed to discriminate against employees or potential employees regardless of the role the particular 25

Case C-414/16, Egenberger v Evangelisches Werk für Diakonie und Entwicklung (ECJ 17 April 2018). 26 The contract was to conduct research for the Diaconate of the Evangelical Church. 27 Case C-414/16, Egenberger v Evangelisches Werk für Diakonie und Entwicklung (ECJ 17 April 2018), para. 28. 28 Case C-414/16, Egenberger v Evangelisches Werk für Diakonie und Entwicklung (ECJ 17 April 2018), para. 29. 29 Case C-414/16, Egenberger v Evangelisches Werk für Diakonie und Entwicklung (ECJ 17 April 2018), para. 41.

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employee fulfils in the organisation. The second question concerned whether Article 21 of the European Charter which prohibits discrimination on the grounds of religion or belief confers a subjective right on individuals that can be enforced in national courts and which allows national courts to disapply national law in conflict with the right. The third question related to the nature of the occupational activity and its relation to the religious ethos of the church.30 The CJEU rooted its judgment in the balance struck by the Directive between autonomy of religious organisations and the individual’s right not to be discriminated against.31 As to the first question, the Court held that it is up to national courts to determine whether the discrimination by a religious organisation as employer requiring adherence by its employee to its dogma, meets the standards of the Directive.32 In other words, it is the national courts (through effective judicial review), and not the church itself, that must determine whether religious adherence constitutes a genuine, legitimate and justified occupational requirement. As to whether national law can be ignored where in conflict with EU law, the court held that national courts must strive to interpret national laws in conformity with the Directive. This must be done to ensure that an appropriate balance is struck between autonomy of religious institutions and freedom of religion and the right not to be discriminated against on the basis of religion.33 Further, the nature of the employment and whether it requires adherence to the dogma and membership of the church must be determined by the national courts. In assessing this on a case-by-case basis,34 the Court of Justice found that national courts should engage in a proportionality exercise to determine whether religious affiliation is ‘necessary and objectively dictated’ bearing in mind the ethos of the organisation and the nature of the activity.35 IR v JQ36 involved similar questions to those considered in Egenberger, and the Court relied on its earlier dicta in coming to similar conclusions. JQ worked as a medical doctor and head of the internal medicine department of a private hospital operated by IR, a limited liability company affiliated with the Roman Catholic Church.37 JQ, a member of the Roman Catholic Church, was dismissed from his

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Case C-414/16, Egenberger v Evangelisches Werk für Diakonie und Entwicklung (ECJ 17 April 2018), para. 41. 31 Case C-414/16, Egenberger v Evangelisches Werk für Diakonie und Entwicklung (ECJ 17 April 2018), para. 51. 32 Case C-414/16, Egenberger v Evangelisches Werk für Diakonie und Entwicklung (ECJ 17 April 2018), para. 55. 33 Case C-414/16, Egenberger v Evangelisches Werk für Diakonie und Entwicklung (ECJ 17 April 2018), paras. 70–79. 34 Case C-414/16, Egenberger v Evangelisches Werk für Diakonie und Entwicklung (ECJ 17 April 2018), para. 65. 35 Case C-414/16, Egenberger v Evangelisches Werk für Diakonie und Entwicklung (ECJ 17 April 2018), para. 69. 36 Case C-68/17, IR v JQ (ECJ 11 September 2018). 37 Case C-68/17, IR v JQ (ECJ 11 September 2018), para. 23.

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position for contravention of church dogma.38 JQ was married to his first wife by religious rites and after their divorce he married his second wife in accordance with civil law. The first marriage was not annulled by the church.39 JQ challenged his dismissal as discriminatory.40 IR maintained that JQ was in breach of the terms of his employment contract.41 After JQ succeeded in the labour court and the higher labour court, IR referred a legal question to the Federal Labour Court. That court held that JQ was discriminated against as non-RC members would not be dismissed if they were to remarry.42 IR approached the Federal Constitutional Court which set aside the Federal Labour Court’s judgment and remitted the matter to that court. The Federal Labour Court referred questions similar to those in Egenberger, to the CJEU.43 As in Egenberger, the court held that effective judicial review by national courts is necessary to ensure compliance with EU law.44 The court held that it is not up to the church to determine whether religion is a genuine, legitimate and justified requirement for a person performing managerial duties. Further, it is also for the court to determine whether the nature of the occupational activities requires adherence to the religion as an occupational requirement that is genuine, legitimate and justified. This requires a consideration of proportionality. Lastly, the court confirmed that national laws should be interpreted in conformity with EU law where possible, and that national law should only be disapplied where contrary to the Charter.45 Egenberger and JQ clarify that EU law requires the balancing of competing interests by national courts, and vest significant power in those courts to determine whether the particular occupational activity objectively requires religious adherence or membership of a religious organisation. As such, the right not to be discriminated against seems to have gained more weight in the balancing exercise in later decisions. In R (Amicus and Others) and in Complainant the scales were tipped in favour of religious organisations to discriminate in their employment decisions. The Egenberger and JQ judgments shift the balance more in favour of equality.

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Case C-68/17, IR v JQ (ECJ 11 September 2018), paras. 24, 26. Case C-68/17, IR v JQ (ECJ 11 September 2018), para. 25. 40 Case C-68/17, IR v JQ (ECJ 11 September 2018), para. 27. 41 Case C-68/17, IR v JQ (ECJ 11 September 2018), para. 28. 42 Case C-68/17, IR v JQ (ECJ 11 September 2018), para. 29. 43 Case C-68/17, IR v JQ (ECJ 11 September 2018), para. 37. 44 Case C-68/17, IR v JQ (ECJ 11 September 2018), para. 56, drawing conclusions from preceding paragraphs. 45 Case C-68/17, IR v JQ (ECJ 11 September 2018), para. 61. 39

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3 The African Regional Human Rights Framework In comparison to other regional human rights frameworks, the African framework is a relative late-comer. Members of the Organisation of African Unity adopted the African Charter on Human and Peoples’ Rights in 1981 and the treaty entered into force in 1986. The Charter provides for equal rights entitlement (Article 2), equal protection and benefit of the law (Article 3), freedom of religion and conscience subject to legal regulation (Article 8) and freedom of association (Article 10). Insofar as discrimination from private sources is concerned, the Charter contains a broad provision outlining a duty on individuals ‘to respect and consider his fellow beings without discrimination, and to maintain relations aimed at promoting, safeguarding and reinforcing mutual respect and tolerance’ (Article 28). The implementation of the Charter is overseen by the African Commission on Human and Peoples’ Rights46 which considers periodic reports from member states47 and communications from member states48 and individuals.49 As of 2004 the work of the Commission is complemented by the African Court on Human and Peoples’ Rights.50 The Court hears matters referred to it by member states, non-governmental organisations, organs of the African Union51 and referrals by individuals in instances where member states have agreed to such referrals.52 Despite the African human rights framework being operational, neither the Commission nor the Court has had the opportunity to consider a complaint of discrimination from private source.53 More particularly, not a single matter concerning discrimination by a religious organisation in employment has been referred to either institution. In the absence of guidance at the regional level, I turn the attention to the consideration of such complaints by national courts in different African jurisdictions.

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The Commission was established in terms of Article 30 of the Charter. Article 45. 48 Article 47. 49 Article 55. 50 The Protocol to the African Charter on Human and Peoples’ Rights on the Establishment of an African Court on Human and Peoples’ Rights was adopted on 9 June 1998 in Burkina Faso and came into force on 25 January 2004 after it was ratified by more than 15 countries. 51 The continent-wide commitment to upholding human rights was bolstered with the adoption of the Constitutive Act of the African Union in 2000 which saw the Organisation of African Unity re-emerging as the African Union identifying human rights as a cornerstone in the establishment of the Union. See Article 3(h) and Article 4(m) of the Constitutive Act. 52 Article 5(3) of the Protocol to the African Charter on Human and Peoples’ Rights on the Establishment of an African Court on Human and Peoples’ Rights read with Article 34(6). 53 For a general discussion of resistance experienced by the African Court, see Daly and Wiebusch (2018). 47

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Specific African Examples

In what follows I outline recent case examples of challenges on the basis of discrimination by religious organisations in Kenya, South Africa, Uganda and Zimbabwe. The first two jurisdictions represent a clear preference for equality, while the latter two retain the separation between the church and state in justification of allowing religious organisations to adhere to its dogma. I present the opposing African examples to illustrate how the absence of a regional directive hampers human rights protection at the regional level on the one hand. However, on the other hand, the absence of a regional guideline allows courts in African states to test the boundaries of conventional interpretation of the prohibition of discrimination from private sources.

3.1.1

Kenya and South Africa: Equality First

The 2010 Kenyan Constitution protects the right to equality and prohibits discrimination on a number of specified grounds, but does not restrict the prohibition of discrimination to those grounds exclusively.54 The Constitution further entitles everyone to fair labour practices.55 The Employment Act56 gives effect to the constitutional rights by prohibiting unfair termination of employment57 and stipulates explicitly that termination of employment for reasons relating to pregnancy of a woman does not constitute a fair reason for termination of employment.58 This legal framework provide the basis for the judgment of the Employment and Labour Relations Court of Kenya in Mukiria v Methodist Church in Kenya.59 In Mukiria the claimant was employed by the respondent, the Methodist Church, as an evangelist. She applied for maternity leave, but in turn was dismissed because she had given birth five months after her wedding. The dismissal was thus a result of the Church’s invariable conclusion that she had pre-marital sex. The claimant’s case was that she was unfairly dismissed and subjected to discrimination on the basis of pregnancy and gender. The Church did not participate in the proceedings. The court held that the sanction of dismissal was harsh in this instance since the church rules allow for counseling of single women in its employ who become pregnant out of wedlock. The claimant was awarded compensation equivalent to six months’ salary.

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Section 27. Section 41. 56 The Employment Act Chapter 226. 57 Section 45. 58 Section 46. 59 Case 140/18, Merry Mukiria v Methodist Church in Kenya Trustees Registered & another (eKLR 9 October 2018). 55

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Mukiria was decided on the basis of the rules of church. However, in applying those rules, the Court considered the rules within the legislative and constitutional standards applicable.60 Against the background of this moderate approach of the Kenyan judiciary that I turn the attention to the South African legal framework and case law. As evident from the discussion of the cases below, the balance in the South African context is in favour of the right to equality. Significantly, a recent judgment of the North Gauteng High Court called into question whether balancing of competing rights is called for in considering the permissibility of discrimination from private sources. The distinct preference in favour of equality followed by the South African courts and its possible contribution to the dialogue between north and south must be viewed in the context the historical systemic denial of equality in South Africa prior to the advent of constitutional democracy. The explicit sanctioning of discrimination by legal means under apartheid and during colonial times required and continues to require unambiguous denunciation of discrimination. Legal provisions and exercise of power— whether from public or private sources—that differentiate between people or groups of people based on prohibited grounds (including race, gender, sex, sexual orientation, religion, culture) in a manner that undermines the inherent equal dignity of persons through, for example, prejudice and stereotype have no place in postapartheid South Africa.61 Kriegler J, in one of the early judgments of the Constitutional Court, observed as follows: The importance of equality in the constitutional scheme bears repetition. The South African Constitution is primarily and emphatically an egalitarian constitution. The supreme laws of comparable constitutional states may underscore other principles and rights. But in the light of our own particular history, and our vision for the future, a constitution was written with equality at its centre. Equality is our Constitution’s focus and organising principle. The importance of equality rights in the Constitution, and the role of the right to equality in our emerging democracy, must both be understood in order to analyse properly whether a violation of the right has occurred.62

The commitment to equality and the prohibition of unfair discrimination is reflected in legislation that applies in the context of employment in the form of the Employment Equity Act63 and also by the Promotion of Equality and Prevention of Unfair Discrimination Act64 which prohibits unfair discrimination from public or

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Case 140/18, Merry Mukiria v Methodist Church in Kenya Trustees Registered & another (eKLR 9 October 2018), para. 3. 61 For case examples highlighting the historical significance of the constitutional protection of equality see CCT/25/94, S v Mhlungu (Constitutional Court 8 June 1995), para. 8; CCT/15/95, Brink v Kitshoff NO (Constitutional Court 15 May 1996), paras. 39–40; CCT/31/96, Fraser v Children’s Court, Pretoria North (Constitutional Court 5 February 1997), para. 20; CCT/4/96, Prinsloo v Van der Linde (Constitutional Court 18 April 1997). 62 CCT/11/96, President of the Republic of South Africa v Hugo (Constitutional Court 18 April 1997), para. 74. 63 Act 55 of 1998. 64 Act 4 of 2000.

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private sources outside the employment relationship. These two statues cast the net wide enough to prohibit possible unfair discrimination by religious organizations, even as they determine their own rules.65 It is in terms of the latter legislative framework that two complaints of unfair discrimination on the basis of sexual orientation by a church arose. In Strydom v Nederduitse Gereformeerde Gemeente Moreleta Park,66 the applicant filed a complaint of unfair discrimination against a church. The church had terminated his service contract as a music teacher when it came to light that the applicant was in a same-sex relationship.67 Strydom’s complaint was one of unfair discrimination on the basis of sexual orientation. The church countered the complaint by asserting that the discrimination against the applicant was not unfair. It reasoned that the church had autonomy to regulate its own affairs in accordance with the dictates of its doctrine, which regarded homosexuality as a sin.68 The church further argued that the complainant was a spiritual leader in its arts academy. As such, he had to set an example through an exemplary Christian lifestyle.69 The court reached its conclusion by balancing the rights of the complainant not to be discriminated against unfairly against the rights of the church to freedom of religion. Of this, the court said: . . . [t]he facts that freedom of religion must be balanced against the complainant’s right to equality, in essence, forms the context of the question whether the discrimination was fair.70

The court did not deem the position of music teacher as one of spiritual leadership.71 As a result, the court did not consider the purpose of the discrimination against the applicant to be legitimate. The court concluded that the impact of the discrimination on the complainant through the impairment of his dignity was far more extensive than the impact of not granting an exemption to the church by requiring it to adhere to constitutional norms.72 The court thus found the church to

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South African legal scholars have engaged with this topic in a number of thought-provoking and theoretically grounded contribution Lenta (2009), Woolman (2009), Bilchitz (2011), Lenta (2012), Bilchitz (2012) and De Freitas (2012). The current discussion steers clear of the theoretical debates and focuses the attention of the application of the law by the courts. 66 Case 26926/05, Strydom v Nederduitse Gereformeerde Gemeente Moreleta Park (High Court – Gauteng 17 August 2008). 67 Case 26926/05, Strydom v Nederduitse Gereformeerde Gemeente Moreleta Park (High Court – Gauteng 17 August 2008), para. 1. 68 Case 26926/05, Strydom v Nederduitse Gereformeerde Gemeente Moreleta Park (High Court – Gauteng 17 August 2008), paras. 8, 15. 69 Case 26926/05, Strydom v Nederduitse Gereformeerde Gemeente Moreleta Park (High Court – Gauteng 17 August 2008), para. 16. 70 Case 26926/05, Strydom v Nederduitse Gereformeerde Gemeente Moreleta Park (High Court – Gauteng 17 August 2008), para. 31. 71 Case 26926/05, Strydom v Nederduitse Gereformeerde Gemeente Moreleta Park (High Court – Gauteng 17 August 2008), para. 17. 72 Case 26926/05, Strydom v Nederduitse Gereformeerde Gemeente Moreleta Park (High Court – Gauteng 17 August 2008), paras. 24–26.

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have discriminated unfairly against the applicant on the basis of sexual orientation. The church was ordered to apologise unconditionally to the complainant and pay damages for the unfair discrimination and impairment of his dignity.73 More than 10 years after the balancing approach followed in Strydom, the same church was back in court in the matter of Gaum and Others v Van Rensburg NO.74 In this matter the church sought to defend its 2016 reversal of a 2015 decision of its synod to accept same-sex marriages, to allow solemnisation of such unions by ministers of the church, and allow persons in same-sex relationships to be ministers and elders in the church. The reversal of that decision would mean that same-sex unions could not be celebrated in the church and that only celibate unattached gays and lesbians could be ministers or elders in the church. Gaum, a minister of the church, questioned the 2016 decision on both substantive and procedural grounds.75 For current purposes it is only the substantive aspect that is relevant.76 The applicant maintained that the 2016 decision constituted unfair discrimination on the basis of sexual orientation in that it diminished the dignity of LGBTQIA+ members of the church. In particular, the applicant maintained that LGBTQIA + members’ dignity was impaired in that their relationships could not be solemnised in the church thus preventing them from exercising their rights to freedom of religion and freedom of association. The church boldly denied this assertion and argued that the applicant and others were free to join a church which follows beliefs that aligned with their own. In its attempt to address the question of the fairness of the differentiation, the church ‘invok[ed] a trump right; religious freedom, trumping or ousting the rights of Gaum’.77 The court found the reversal of the 2015 decision to be unfairly discriminatory and thus set the 2016 decision aside. In coming to this conclusion the court explained that the test for a breach of the equality right requires in the first instance, a consideration as to whether there is differentiation and whether there is a rational connection between the differentiation and the purpose it is meant to serve.78 Even when such a rational connection exists, the differentiation could still amount to unfair discrimination. Where a listed ground in the South African Constitution— such as sexual orientation—forms the basis for the discrimination is presumed to be unfair. The respondent then bears the onus to rebut the presumption and demonstrate

Case 26926/05, Strydom v Nederduitse Gereformeerde Gemeente Moreleta Park (High Court – Gauteng 17 August 2008), paras. 35–41. 74 Case 40819/17, Gaum and Others v Van Rensburg NO and Others (North Gauteng High Court 8 March 2019). 75 Case 40819/17, Gaum and Others v Van Rensburg NO and Others (North Gauteng High Court 8 March 2019), paras. 1–4. 76 It is interesting to note that the court discussed the doctrine of entanglement in some detail (paras. 21–29), but that it proceeded to decide the matter on the basis of secular law as presented. 77 Case 40819/17, Gaum and Others v Van Rensburg NO and Others (North Gauteng High Court 8 March 2019), para. 64. 78 Case 40819/17, Gaum and Others v Van Rensburg NO and Others (North Gauteng High Court 8 March 2019), para. 66. 73

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that the discrimination is fair.79 The last consideration, according to Raulinga J, is to determine whether the unfair discrimination is justifiable.80 The court held that the 2016 decision differentiated between same-sex and opposite sex church members and clergy on the basis of sexual orientation. Accordingly, it was presumed to be unfair. In considering the fairness of the differentiation, the court noted that the impact of the discrimination on the affected group must be considered. In particular, the court must determine whether the dignity of persons has been affected and whether the discriminatory treatment serves a worthy and important societal goal.81 The court held that gays and lesbians remain a vulnerable group in SA society who have suffered discrimination in the past. The purpose of the 2016 decision was, in the view of the court, to exclude LGBTQIA+ members from positions of leadership and celebrating wedding ceremonies in the church.82 The court found that this purpose did not further the constitutional ideals of the achievement of human dignity, equality and freedom, but instead the decision deprived members of the church of their full and equal enjoyment of all rights and freedoms that the church offers.’83 In dealing with the contention of church autonomy, the court noted that the church’s autonomy covered decisions relating to its doctrine. However, when a church dispute ends in court, the court applies the law of the land. In particular, where the Bill of Rights is invoked, the court stated that it is wrong then to employ the religious sentiments of some as a guide to the constitutional rights of others. The sacred is forced into the secular where there is prejudice to the basic rights contained in the Bill of Rights; unfair discrimination with no supportive evidence of fairness renders the supreme law, the Constitution, to be upheld.84

In this context, the court found that it was not required to balance rights. Rather, it noted that its only task was to determine fairness of the discriminatory conduct/ policy. Where it found the discrimination is found to be unfair, the justification

79

Case 40819/17, Gaum and Others v Van Rensburg NO and Others (North Gauteng High Court 8 March 2019), para. 68. Section 9 of the Constitution prohibits unfair discrimination on listed grounds, and ground that are analogous to listed grounds. When it has been asserted that discrimination is on a listed ground, the burden of proof to prove that the discrimination is fair, shifts to the respondent. Citizenship (CCT/2/97, Larbi-Odam and Others v Member of the Executive Council for Education (North-West Province) and Another(Constitutional Court 26 November 1997)) and HIV-status (CCT/17/00, Hoffman v South African Airways (Constitutional Court 28 September 2000)) have been found to be grounds similar to those listed in section 9(3). 80 Case 40819/17, Gaum and Others v Van Rensburg NO and Others (North Gauteng High Court 8 March 2019), para. 66. 81 Case 40819/17, Gaum and Others v Van Rensburg NO and Others (North Gauteng High Court 8 March 2019), para. 70. 82 Case 40819/17, Gaum and Others v Van Rensburg NO and Others (North Gauteng High Court 8 March 2019), para. 76. 83 Case 40819/17, Gaum and Others v Van Rensburg NO and Others (North Gauteng High Court 8 March 2019), para. 81. 84 Case 40819/17, Gaum and Others v Van Rensburg NO and Others (North Gauteng High Court 8 March 2019), para. 78.

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enquiry would then ensue.85 This enquiry in turn, the court held, also did not require the balancing of rights.86,87 While the South African case examples set out above demonstrate a clear preference for equality, it does so in different ways in the two cases discussed. Strydom follows the conventional approach of balancing competing rights, while Gaum introduces an approach that the presumes discrimination and rejects reliance on religious freedom and autonomy to rebut the presumption of unfairness or justify such discrimination. This nonconformist approach represents an outlier on the continent, as illustrated when compared to the Ugandan and Zimbabwean examples.

3.2

Uganda and Zimbabwe: Autonomy for Religious Organisations

The recent decisions of the Ugandan High Court and Zimbabwean Constitutional Court bear reference. In each matter, the court dealt with the employment of individuals by religious organisations by relying strictly on the principles of church autonomy and separation of church and state. This approach allows significant leeway to religious organisations to circumvent human rights obligations based on its own interpretation of the requirements of its doctrine. In Adiga v Sabino and Another88 the plaintiff, an ordained priest of the Roman Catholic Church sought damages from the defendants, the Bishop and Diocese for unlawful suspension from his position as a curate and chaplain of the Church in terms of the Employment Act, 2006. At the core of the dispute was the question whether the civil court had jurisdiction to determine the dispute. The Constitution of the Republic of Uganda, 1995 prohibits the adoption of a state religion (Article 7), and church and state thus exist separately. The Constitution further stipulates that

85 Adjudication in terms of the South African Bill of Rights generally follows a two-stage approach, similar to the approach followed in Canada. The court is required in the first instance to interpret the right in question and the legislation/conduct under scrutiny to determine whether the latter limits the former. Thereafter, the court is required to determine whether that limitation is justifiable in an open and democratic society. See CCT/28/01, Ex Parte Minister of Safety and Security and Others: In Re S v Walters and Another (Constitutional Court 21 May 2002), paras. 26–27. For a critical consideration of how this staged approach applies in relation to the right to equality, see Krüger (2011). 86 Case 40819/17, Gaum and Others v Van Rensburg NO and Others (North Gauteng High Court 8 March 2019), paras. 83–91 deal with the submissions of the amicus before the court who relied on foreign and international law in its attempt to convince the court to strike the balance in favour of religious exemption. 87 See however, Currie (2010). 88 CIVIL SUIT No. 0002 OF 2017, Adiga v Sabino and Another (UGHCCD 11 January 2018). The judgment can be accessed at . The paragraphs of the judgment are not numbered and references below will be to the relevant pages of the PDF version of the judgment.

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‘civic organisations shall retain their autonomy in pursuit of their declared objectives’.89 Article 29 protects the right to freedom of religion held by individuals. The court held that this right necessarily extends to religious organisations to regulate their own affairs in accordance with the dictates of the religion.90 Importantly, the judge noted that civil courts would refrain from making pronouncements that requires it to make decisions based on religious doctrine. In determining what this means for religious institutions in hiring and firing of persons in positions with religious significance, the question, according to the court, is thus whether the person is an employee of the religious institution. Only employees, according to the court, are entitled to the legal protection granted in terms of national law to employees.91 After an extensive consideration of comparative jurisprudence, the judge concluded that ‘whether or not clergy of a religious organisation in pastoral care are “employed” depends on ecclesiology and self-understanding of the particular church.’92 The court thus decided that the dispute between the plaintiff and the defendant was to be determined in terms of canon law and the suit was struck out as incompetent. Significantly, the court (per Mubiru J) noted with caution that ‘autonomy is not autocracy’. In explaining this cautionary note, he stated that courts would be slow to intervene in church matters, and then only if the civil right in question cannot be protected in any other way.93 The approach of the Zimbabwean Constitutional Court’s in Sango94 is similar to that of the Ugandan High Court in Adiga. The first and second applicants were appointed by the governmental Department of Primary and Secondary Education and deployed as deputy heads in schools run by the Anglican Church. They subsequently left the church to join a new church. The Anglican Church requested the government department to transfer the applicants from their schools.95 The applicants challenged this request as unconstitutional on the basis of discrimination and infringement of their rights to freedom of assembly and association.96 The court concluded that the Church was entitled to establish schools and to expect the leaders of the schools to adhere to the doctrine of the Church. This conclusion followed from the court’s consideration of the right to freedom of conscience which includes

89

The Constitution of the Republic of Uganda, National Objective and Directives Principles of State Policy II (iv). 90 Adiga, 5. 91 Agida, 9 ff. 92 Adiga, 23. 93 Adiga, 31. 94 Case 1/18 and Case 39/14 and 40/14, Sango v Trustees, Anglican Diocese of Manicaland, Church of the Province of Central Africa & Others; Dumbura v Trustees, Anglican Diocese of Manicaland, Church of the Province of Central Africa & 2 Others (CCZ 22 October 2014 and 29 March 2018). The judgment can be accessed at . The paragraphs of the judgment are not numbered and references below will be to the relevant pages of the PDF version of the judgment. 95 Case 1/18, Sango v Trustees (CCZ 28 March 2018), pp. 1–3. 96 Case 1/18, Sango v Trustees (CCZ 28 March 2018), p. 5.

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freedom of religion, and its application for the benefit of the collective. Of this the court said: ‘Where individual and collective aspects of the right [to freedom of conscience] conflict, it will generally be appropriate to consider that the collective rather than the individual interests prevail – so long as the former do not become oppressive or tyrannical.’97 The court noted that the applicants left the church on their own volition and that, as a result, they must face the consequences of their own decisions. Effectively, in the view of the court, the applicants ‘deprived themselves of the right to remain deputy headmasters at the schools’.98 These judgments, handed down in 2018, illustrate that the autonomy of religious institutions trump the rights of individuals’ right not to be discriminated against in some African jurisdictions. Where civil rights may be at stake in a dispute between a citizen and the church, the courts, at least in Uganda and Zimbabwe, will allow significant leeway to the church. The balance here clearly favours freedom of religion and autonomy of religious organizations at the expense of human rights. This approach is quite different from that of the Employment and Labour Relations Court in Kenya and those of the South African courts discussed above. These very different approaches exist alongside each other in the absence of a directive or guidance at the regional level. And this, as argued above, is at the same time detrimental and beneficial to the development of equality jurisprudence.

4 Conclusion: Leading the Discussion from the Bottom Up It is evident from the discussion of the different approaches within and across jurisdictions that discrimination from private sources, and particularly by religious organisations, provide courts with difficult decisions. The difficult decisions are further complicated or simplified by the presence or absence of different levels of guidance. The top-down approach of the EU provides clear guidance and requires national legislation and frameworks to strike a balance between competing rights. In the EU context, decisions as to whether to allow discrimination by religious organisations are guided by the need to balance competing rights—freedom of religious organisation to manage their own affairs against the rights of individuals to be free from discrimination. Prior to the 2018 Court of Justice decisions, religious organisations were allowed significant leeway to depart from human rights standards. Egenberger and JQ represent a shift in favour of equality by requiring courts, rather than the religious organisations themselves, to determine whether the adherence to religious doctrine is a legitimate and justified occupational requirement. To this subtle, yet significant shift, national courts and legislatures of EU member states must take note.

97 98

Case 1/18, Sango v Trustees (CCZ 28 March 2018), p. 7. Case 1/18, Sango v Trustees (CCZ 28 March 2018), p. 6.

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In the absence of similar guidance on the African continent, national legal frameworks and national courts allow divergence which promotes conservative conventional reasoning at the expense of human rights as in Uganda and Zambia. But it also allows conventional interpretations to be challenged. The South African case examples confirm the fundamental commitment to equal dignity espoused in the South African Constitution. While Strydom calls for a balance to be struck between competing rights, it does so bolstered by the presumption of unfairness of discrimination that is constitutionally sanctioned. In Gaum, Raulinga J rejected the idea of balancing competing rights in determining the complaint of unfair discrimination before the court. The question for determination, according to Raulinga J turns on the issue of fairness. In this, the consideration of the autonomy of religious organisations may play a role, but is certainly not determinative. The judgment in Gaum does not follow convention and may well represent the next frontier in determining complaints of discrimination from private sources. Its point of departure is that the equality right is breached where an identity marker such as sexual orientation forms the basis of differentiation in policy formation or decision-making by a religious organisation. Once that is established, the differentiation is presumed to constitute unfair discrimination. Rebuttal of such a presumption of unfairness will require careful motivation, which may or may not include reference to religious dogma. What is evident from the dialogue is that blanket exemptions or blanket refusal of exemptions will lead to the abuse of rights—whether that of the employee or worker of the church, or whether it would lead to suppression of difference and a retreat by religious institutions from public life. For now, perhaps, a balance must be struck between competing rights. As migration and globalisation lead to the introduction of new and different norms and challenges to equality and non-discrimination law, it may be appropriate in future to consider Gaum seriously and to follow the pull of progressive legal norms to accommodate social change.

References Bilchitz, David. 2011. Should Religious Organisations Be Allowed to Discriminate. SAJHR 27: 219–248. ———. 2012. Why Courts Should Not Sanction Unfair Discrimination in the Private Sphere: A Reply. SAJHR 28: 296–315. Burri, Susanne, and Sacha Prechal. 2008. EU Gender Equality Law. Luxemburg: Office for Official Publications of the European Communities. Currie, Iain. 2010. Balancing and the Limitation of Rights in the South African Constitution. SA Public Law 25: 408–422. Daly, Tom, and Micha Wiebusch. 2018. The African Court on Human and People’s Rights: Mapping Resistance Against a Young Court. International Journal of Law in Context 14 (2): 294–313. https://doi.org/10.1017/S1744552318000083. De Freitas, Shaun. 2012. Freedom of Association as a Foundational Right: Religious Associations and Strydom v Nederduitse Gereformeerde Gemeente, Moreleta Park. SAJHR 28: 258–272.

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FRA. 2018. Handbook on European Non-Discrimination Law (2018 Edition). . Krüger, Rosaan. 2011. Equality and Unfair Discrimination: Refining the Harksen Test. South African Law Journal 128: 479–512. Lenta, Patrick. 2009. Taking Diversity Seriously: Religious Associations and Work-Related Discrimination. South African Law Journal 126: 827–860. ———. 2012. The Right of Religious Associations to Discriminate. SAJHR 28: 231–257. Mamdani, Mahmood. 1996. Citizen and Subject: Contemporary Africa and the Legacy of Late Colonialism. Nashville: College of Business, Tennessee State University. Rutabizwa, Olivia U. 2010. The Problematics of the EU’s Ethical (Self)Image in Africa: The EU as an ‘Ethical Intervener’ and the 2007 Joint Africa-EU Strategy. Journal for Contemporary European Studies 18: 209–288. Woolman, Stu. 2009. On the Fragility of Associational Life: A Constitutive Liberal’s Response to Patrick Lenta. SAJHR 25: 280–305.

European Anti-Discrimination Law: The American Perspective Mathias Möschel

Contents 1 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 What Americans Would Recognize . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 What Americans Would Not Recognize . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.1 Positive Differences . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.2 Negative Differences . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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Abstract This contribution provides an overview of what American antidiscrimination lawyers from the United States would and would not recognize when looking at the complex, multilevel framework on anti-discrimination law as it has developed in Europe, thanks also due to EU law. It argues that there is a whole set of elements ranging from grounds of discrimination, equality bodies and legal and academic debates which American colleagues would recognize. At the same time, it also argues that on other aspects parallels would not be as obvious. On the one hand, European anti-discrimination law has gone further than its American counterpart, especially with regard to indirect discrimination and quotas and this also thanks to the international legal framework and case law. On the other hand, a certain lack of anti-discrimination law culture in most European countries, and the difficulties to deal with race and the acceptance of Muslim headscarf and veil bans due to lack of reasonable accommodation on the grounds of religion could be mentioned here as consisting in the lesser developed side of European antidiscrimination law.

Mathias Möschel is Associate Professor at Central European University. M. Möschel (*) Central European University, Legal Studies Department, Budapest, Hungary e-mail: [email protected] © Springer Nature Switzerland AG 2020 T. Giegerich (ed.), The European Union as Protector and Promoter of Equality, European Union and its Neighbours in a Globalized World 1, https://doi.org/10.1007/978-3-030-43764-0_24

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1 Introduction This contribution provides an American perspective on European antidiscrimination law with a series of preliminary provisos. First of all, this is certainly not the first time that a comparative perspective of anti-discrimination law between the United States and Europe is being adopted. Indeed, one could say that this is a relatively common angle given that, to some extent, many concepts and notions in anti-discrimination law have originated in the North American context and have then travelled across the Atlantic. I will get back to these further in this contribution which nevertheless builds on and integrates the publications by many other comparative (and) anti-discrimination law scholars who have already highlighted certain similarities or differences between the United States and the European setting in this domain.1 Second, I take a fairly broad view of ‘European anti-discrimination law’ here. Indeed, I do not limit myself to the extremely important body of anti-discrimination law developed under the aegis of the European Union (EU). Instead, I take a wider angle. Doing any differently would be doing injustice to the rich number of instruments and cases developed in this domain and that constitute the body of European anti-discrimination law. Third, I should acknowledge that I am not an American lawyer. Rather my perspective here is that of a European lawyer, who has obtained an LL.M. from Berkeley School of Law, who has passed the bar examination in New York and thereafter worked in a California law firm, who later in his academic work has used the lens of American Critical Race Theory to analyse the European context,2 and who now works at an American university in Europe. Hence, it is essentially the comparative look, experience and knowledge of both geographical realities that informs the analysis here below and allows me to provide the so-called ‘American perspective’. As to the structure of my analysis, I have followed the logic of what American lawyers would recognize in European anti-discrimination law (Sect. 2) and what they would not recognize (Sect. 3). Indeed, there are a number of features which Americans would be familiar with when confronted with the European body of antidiscrimination law. Yet at the same time, American anti-discrimination lawyers and scholars would probably be just as puzzled when they look across the Atlantic There is a whole research centre, the “Berkeley Center on Comparative Equality & Antidiscrimination Law” focusing, if not exclusively, on the comparisons between the United States and Europe in this domain. Here below are some names of the best known comparative antidiscrimination legal scholars—even though they might not necessarily identify themselves as such: Mark Bell, Emmanuelle Bribosia, Barbara Havelková, Tanya Katerí Hernandez, Bob Hepple, Chris McCrudden, Marie Mercat-Bruns, Julie Ringelheim, Isabelle Rorive, Ruth Rubio-Marín, Iyiola Solanke, Julie Suk, Lisa Waddington and David Oppenheimer. Moreover, in 2012 a special issue of the American Journal of Comparative Law has been dedicated precisely to the “Trajectories of European and American Anti-Discrimination Law”. 2 Möschel (2014). 1

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Ocean. And here I subdivide the differences into positive (Sect. 3.1) and negative surprises (Sect. 3.2). Positive and negative are intended here as coming from the perspective of someone who believes and hopes that anti-discrimination law should and could fight discrimination not only punctually but also structurally.

2 What Americans Would Recognize One of the first elements that Americans would certainly recognize in European antidiscrimination law are the main grounds of discrimination. There is a certain convergence around certain grounds of discrimination which are deemed particularly suspect so as to warrant specific protection against discriminatory behavior from the State but also from private individuals. In this sense, there is a certain convergence on both sides of the Atlantic that discrimination on the grounds of race, ethnicity, sex, gender, disability, sexual orientation, age and religion—i.e. those grounds of discrimination enshrined in the most important EU antidiscrimination directives3—need to be prohibited.4 The second element which would easily be recognized by American colleagues are the institutions to combat discrimination. Especially as far as race discrimination is concerned, the idea of having equality bodies to enforce anti-discrimination law under EU law was partly copied and pasted from the (positive) experience and role played by the American Equal Employment Opportunities Commission (EEOC) and constituted what De Witte called a “migration of ideas”.5 EU law imposed on Member States the obligation to identify such equality bodies at least as far as race and sex discrimination are concerned.6 Although the competences and structure of these bodies vary considerably across the borders, thus making it sometimes difficult to compare them with the EEOC, nevertheless the underlying idea that a—preferably independent—administrative agency is in charge of overviewing the implementation of anti-discrimination law is something that Americans are quite familiar with. The third element of familiarity are the concepts in anti-discrimination law used on both sides of the Atlantic Ocean. Here again, we have something that could be called a legal transplant with concepts developed in the American reality that

3 Directive 2000/43/EC implementing the principle of equal treatment between persons irrespective of racial or ethnic origin, OJ L 180/22 (2000) (hereinafter the Race Equality Directive); Directive 2000/78/EC establishing a general framework for equal treatment in employment and occupation, OJ L 303/16 (2000) (hereinafter the Employment Equality Directive); and Directive 2006/54/EC on the implementation of the principle of equal opportunities and equal treatment of men and women in matters of employment and occupation (recast), OJ 2006 L 204/23 (2006) (hereinafter the Sex Equality Directive). 4 For a theoretical understanding of this convergence of grounds of discrimination also beyond the US-EU dichotomy, see Khaitan (2018). 5 De Witte (2012). 6 See art. 13 of the Race Equality Directive and art. 20 of the Sex Equality Directive.

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travelled to Europe. Yes, the names might be different: Europeans speak and write about ‘direct’ and ‘indirect discrimination’ whereas Americans call them ‘disparate treatment’ and ‘disparate impact’. Moreover, Europeans do not speak about ‘affirmative action’ but often refer to such measures as ‘positive action’7 or even as ‘positive discrimination’, especially in France. However, there is no denying that essentially the underlying logic and functioning of these mechanisms is relatively similar, at least at the macro-level. The probably best documented example of a conceptual transplant is how indirect discrimination originated from a United States’ Supreme Court case in 19718 and then travelled to Europe via the United Kingdom9 before becoming enshrined in the EU anti-discrimination directives.10 Another example of conceptual travel from the United States to Europe that could be mentioned here is the idea of (sexual) harassment being a form of (sex) discrimination which was developed by Catherine MacKinnon in the late 1970s11 and then again travelled from the United States to Europe where today it is legislatively enshrined in the EU anti-discrimination directives as a form of discrimination.12 Moreover, it is not just the concepts but also the procedural mechanisms facilitating the use of anti-discrimination law, such as the shifting or sharing the burden of proof, that have been copied in the European domain.13 The last element to be mentioned here are the similarities, dialogues and crossreferences in terms of academic debates and case law around the development of anti-discrimination law. Just to name a few examples as far as academic debates are concerned, intersectionality14 has certainly been one of those terms that has occupied scholars since quite some time.15 In a similar way, the issue of stereotypes in antidiscrimination law could be mentioned as one of those areas where some rhetorical overlap can be observed. Arguably, the origins of stereotyping analysis in antidiscrimination law can be traced back to a United States’ Supreme Court case16 and the academic comments it engendered.17 The issue was then picked up in the European context.18

7

See e.g. art. 5 of the Race Equality Directive and art. 3 of the Sex Equality Directive. Griggs v Duke Power Co., 401 U.S. 424 (1971). 9 On this story, see: Lester (1988), pp. 550–552. 10 See e.g. art. 2.2(b) of the Race Equality Directive and of the Employment Equality Directive. 11 MacKinnon (1979). 12 See e.g. art. 2.3 of the Race Equality Directive and of the Employment Equality Directive. 13 See e.g. Directive 97/80/EC on the burden of proof in cases of discrimination based on sex, Official Journal L 014/6 (1997). 14 Crenshaw (1989, 1991). 15 See e.g.: Davis (2008) and Carbin and Edenheim (2013). 16 Price Waterhouse v Hopkins, 490 U.S. 228 (1989). 17 Franklin (2010). 18 Timmer (2011, 2016). 8

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In terms of similarities, if not a full blown judicial dialogue, concerning case law, some have observed parallels between American race-based affirmative action cases by the US Supreme Court and the EU’s Court of Justice sex-based affirmative action cases.19 Also, some mostly symbolic and strategic comparisons between the race education de-segregation cases of the US Supreme Court in Brown v. Board of Education20 and the European Court of Human Rights (ECtHR) and its D.H. and Others v. Czech Republic landmark judgment21 have been made. More recently, uncanny resemblances emerged when two bakers in places as different as Utah and Northern Ireland refused to provide respectively a cake for a gay marriage and a cake with the message “support gay marriage”. In both cases by the United States’ Supreme Court22 and the United Kingdom’s Supreme Court,23 despite the somewhat differing reasoning and legal issues involved, the outcome was similar: a rejection of the sexual orientation discrimination claims over free speech claims by the bakers. Whether there was a common litigation strategy behind these cases is another question open for further research. One thing is sure, at a first glance, there are many ‘déjà-vu’ commonalities. Nevertheless, one could just as easily notice certain ‘faux-amis’, to remain in the French linguistic register, because there are a number of differences as well, some of which are often hidden in the detail.

3 What Americans Would Not Recognize Beyond the similarities, there are a certain number of elements that Americans would not be familiar with when looking at European anti-discrimination law. Before entering into the details of the positive (Sect. 3.1) and negative differences (Sect. 3.2), some macro-level observations are made here. First and foremost, Americans would probably be bewildered by the numerous instruments and provisions on anti-discrimination law applying in Europe. In fact, beyond the main EU anti-discrimination directives mentioned above, a whole set of international human rights and labour law instruments have been ratified by European countries, thus creating a real multi-level framework and body of equality and anti-discrimination law. Not only does one have to look to national differences—and in certain countries even to the regional or state level—to understand how anti-discrimination law works but it is from the international plane that most of the multi-level framework stems. First and foremost, one should mention the various conventions adopted at the

19

See e.g. Hepple (2006), p. 617 and Thomas (1999). Brown v Board of Education, 347 U.S. 483 (1954). 21 D.H. and Others v Czech Republic [GC], no. 57325/00, 13 November 2007. 22 Masterpiece Cakeshop v Colorado Civil Rights Commission, 584 U.S. (2018). 23 Lee v Ashers Baking Company Ltd and others, UKSC 49 (2018). 20

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international level (Council of Europe (CoE) or United Nations (UN)) and which either contain provisions prohibiting discrimination or are instruments whose whole purpose is to combat discrimination. As to the former group one could mention Article 14 of the European Convention on Human Rights (ECHR), Articles 20 and E of the European Social Charter but also Article 26 of the International Covenant on Civil and Political Rights (ICCPR). As to the latter group, the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), the International Convention on the Elimination of All Forms of Racial Discrimination (CERD), and the Convention on the Rights of Persons with Disabilities (CRPD) as well as the CoE Convention on preventing and combating violence against women, also known as the Istanbul Convention, or the 2019 ILO Convention concerning the elimination of violence and harassment in the world of work, can be mentioned. How this has positively influenced the development of antidiscrimination law will be described below. Suffice to say here, that broadly speaking, the framework for anti-discrimination law is more complex and multilayered. Another broad difference is that in the United States anti-discrimination law has developed starting from race discrimination and only later expanded towards other grounds of discrimination.24 In most European legal systems instead, and especially at the EU level, anti-discrimination law developed from sex and nationality discrimination only then to expand into the other grounds of discrimination.25 Moreover, especially with regard to race discrimination, many European countries opted to use criminal law as the preferred instrument to combat such discrimination26 until more recently, with the new EU directives, one can observe a shift towards civil law instruments. Last but not least, a vast body of theoretical, constitutional and freedom of expression literature has focused on the different approaches taken by the United States and Europe in a somewhat specific domain of anti-discrimination law: hate speech.27 For mostly historical reasons, many European countries have a fairly restrictive approach to such type of speech whereas the United States are rather protective of free speech.28 Without entering into the debate of whether one approach is better than the other, American lawyers looking at the European context would remain struck by the fact that certain speech which is constitutionally permissible in the United States would not be so in numerous countries in Europe. The consequences of such broad differences as well as a more close-up look at European anti-discrimination law may help explaining in more detail where the positive differences (Sect. 3.1) and the negative differences (Sect. 3.2) lie.

24

See on this: Mayeri (2014). See on this e.g.: Bell (2002), esp. 32–53. 26 On this see: Suk (2007). 27 See for all: Oppenheimer et al. (2012), pp. 602–675. 28 See e.g.: Kahn (2014). 25

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Positive Differences

There is a generic sense that European anti-discrimination law has taken a more positive and expansive trajectory than its American counterpart, despite all the similarities highlighted above.29 A number of factors may account for that. On the one hand, some argue that precisely the fact of European antidiscrimination law starting from sex and nationality discrimination and not from race, has allowed for a different understanding and shaping of anti-discrimination law with less of a focus on a narrow and individualistic understanding of discrimination but rather on a broader structural conception.30 For example, it has been argued that in Europe certain anti-discrimination measures on the grounds of sex and especially positive action measures are more acceptable because they have been linked to the idea of “parity-democracy”; something that in the United States would be difficult to imagine.31 This may seem in contradiction to the jurisprudential parallels on affirmative/positive action described above. However, it is confirmed by the fact that gender quotas on corporate boards and also in public bodies are a reality in a number of European countries.32 Moreover, many European countries have long-existing disability quotas33 and even racial quotas for Roma in the form of set-asides for political representation or for university students in favour of national minorities exist in some Central and Eastern European countries.34 Probably the fact that such measures are not merely seen as ‘pure’ anti-discrimination law measures but also as something broader, such as parity-democracy for sex equality, the integration of war-veterans for disability and/or the protection of national minorities for certain racial quotas favours a broader approach. On the contrary, in the United States the understanding of anti-discrimination law is narrower as is demonstrated by an absence of political debates on sex quotas or by the Supreme Court’s dismantling of most race based affirmative action measures.35 On the other hand, in Europe the multi-level framework mentioned above has facilitated the development of case law in progressive ways, in some situations also thanks to reciprocal influence and/or judicial dialogue. Thus, the CJEU has 29

More in detail on this see: De Burca (2012). In this sense see e.g.: Suk (2015). 31 Rubio-Marín (2012). 32 See e.g. France (Law no. 2011-103 of 27 January 2011 concerning the balanced representation of women and men on corporate boards and professional equality) and Italy (Law 12 July 2011, no. 120 concerning equal access to corporate boards of publicly listed companies). The European Commission is still debating the introduction of a similar instrument EU-wide: Proposal for a Directive of the European Parliament and of the Council on improving the gender balance among non-executive directors of companies listed on stock exchanges and related measures, COM/2012/ 0614 final - 2012/0299 (COD) of 14 December 2012. 33 See in more detail on this Waddington (1994), esp. 368–377. 34 This is the case for example in Hungary, Romania and Macedonia. 35 Regents of the University of California v Bakke, 438 U.S. 265 (1978); City of Richmond v J.A. Croson Co., 488 U.S. 469 (1989); Adarand Constructors, Inc. v Peña, 515 U.S. 200 (1995). 30

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recognized pregnancy discrimination as direct discrimination on the grounds of sex36 and has included victimless discrimination37 and discrimination by association38 as being part of EU anti-discrimination law. Moreover, the ratification of the CRPD by the EU has arguably shifted the interpretation of the CJEU from the medical to the social model of defining and understanding discrimination on the grounds of disability.39 The ECtHR has generally developed an increasingly staunch anti-discrimination jurisprudence,40 and has in particular included indirect discrimination,41 reasonable accommodation on the grounds of disability, domestic violence as gender based discrimination,42 sex stereotypes43 and structural racial discrimination44 under its Article 14 prohibition against discrimination. Overall, the sense is that of an expanding body of law with a broad foundation and with an upward trajectory.

3.2

Negative Differences

Despite the previous point, it would be wrong to depict Europe as the proverbial Shangri-La for anti-discrimination law. First of all, in a certain way, despite the multi-level framework and the many instruments combating discrimination, there is a certain lack of ‘anti-discrimination culture’ or unawareness of anti-discrimination. Possibly 50 years of Civil Rights Act and other pieces of anti-discrimination legislation have increased awareness in the United States. In Europe instead the consistent and visible body of anti-discrimination law is much younger, meaning that here such a discourse and awareness is only in its fledgling years. Clearly one needs to nuance the picture, with the United Kingdom being closer to the United States, whereas especially Central and Eastern European countries—but not only— seem to struggle with anti-discrimination law. Arguably, the broader linkage of antidiscrimination law to other social and democratic measures in many countries explains why in some of them, such as France and a number of Central and Eastern European countries, have recognized a vast array of somewhat unusual grounds of 36

See e.g.: Case 177/88, Dekker, (ECJ 8 November 1990) ECLI:EU:C:1990:383. Case C-54/07, Feryn, (ECJ 10 June 2008) ECLI:EU:C:2008:397. 38 Case C-303/06, Coleman, (ECJ 17 July 2008) EU:C:2008:415; and Case C-83/14, CHEZ, (ECJ 16 July 2015) EU:C:2015:480. 39 Case C-335/11, HK Danmark, (ECJ 11 April 2013) EU:C:2013:222. See also the contribution by Degener to this volume. 40 Generically on this see: O’Connell (2009). 41 App.-No. 57325/00, D.H. and Others v Czech Republic (ECtHR, GC 13 November 2007) and App.- No. 38590/10, Biao v Denmark (ECtHR, GC 24 May 2016). 42 See e.g.: App.- No. 41237/14, Talpis v Italy, (ECtHR 2 March 2017). 43 See e.g.: App.-No. 30078/06, Konstantin Markin v Russia (ECtHR, GC 7 October 2010) and App.- no. 17484/15, Carvalho Pinto v Portugal, (ECtHR 25 July 2017). 44 App.-No. 48474/14, Lingurar v Romania, (ECtHR 16 April 2019). 37

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anti-discrimination, whose equivalent it would be difficult to find in the United States.45 The risk becomes that everything and anything becomes discrimination at this point. The combination of an absence of anti-discrimination law culture with the broader couching of anti-discrimination law amongst other social welfare measures may in turn also explain the limited damages, if any, that are awarded in cases of discrimination. Yes, punitive damages have been seen as problematic in the past in Europe46 but this is not the only reason why damages in discrimination cases are relatively low. Another important difference Americans would note in Europe, and in particular on the mainland, is how tricky it is to speak in terms of race. I have explained the reasons for this elsewhere and discussed why this is problematical.47 It entails not only the fact that of the term race is being eliminated from legislation and policy but also the absence of racial statistics to help fighting racism and race discrimination in mainland Europe.48 In more profane ways, the difficulties with race in mainland Europe also gives rise to situations like this conference which has led to these proceedings. In fact, whereas the representation in terms of women, persons with disability, and sexual minorities was certainly noteworthy and noted, for Americans the almost complete absence of people of color at a conference on antidiscrimination law would have been striking. Last but not least, certain ‘negative’ differences can certainly be ascertained in the jurisprudence. For instance, recently the CJEU has rejected the notion of intersectionality in its case law.49 Moreover, despite literature assessing the potential of reasonable accommodation in the domain of religious discrimination as known from American but even more so from Canadian jurisprudence,50 in Europe such accommodation is limited to disability both under EU law51 as well as in the case law of the ECtHR.52 One can imagine that this concept applied to the Muslim headscarf and/or veil ban cases could have given rise to a somewhat different outcome in European case law where, for the most part, such bans have withstood human rights

45

See e.g. for the Czech Republic: Havelková (2017); for France see Défenseur des droits (2018). However, the CJEU has explained that EU law allows member states to introduce damage awards but are not obliged to do so, in anti-discrimination law cases: Case 407/14, Camacho, (ECJ 17 December 2015) ECLI:EU:C:2015:831. 47 Möschel (2014). 48 Id., esp. 122–128. 49 Case 443/15, Parris, (ECJ 24 November 2016) ECLI:EU:C:2016:897 and the note by Möschel (2017). 50 Bribosia et al. (2010). 51 See e.g. Article 5 of Directive 2000/78. 52 See e.g. App.-No. 51500/08, Çam v Turkey, (ECtHR 23 February 2016) and App.-No 23065/12, Enver Șahin v Turkey, (ECtHR 30 January 2018). 46

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and EU law challenges,53 which could have been more favourable to Muslim women. In conclusion to this contribution, I have tried to provide a relatively sweeping overview of how Americans would view anti-discrimination law in Europe. While probably recognizing a whole set of concepts, grounds of discrimination, debates and even cases, at the same time they would encounter a somehow different world where certain elements would leave them positively surprised and other elements instead probably somewhat puzzled. One thing is sure: the transatlantic dialogue which has started in the 1960s in this domain is certainly not going to end here.

References Bell, Mark. 2002. Anti-Discrimination Law and the European Union. Oxford: OUP. Bribosia, Emanuelle, Julie Ringelheim, and Isabelle Rorive. 2010. Reasonable Accommodation for Religious Minorities: A Promising Concept for European Antidiscrimination Law? Maastricht Journal of European and Comparative Law 17: 137–161. Carbin, Maria, and Sara Edenheim. 2013. The Intersectional Turn in Feminist Theory: A Dream of a Common Language. European Journal of Women’s Studies 20: 233–248. Crenshaw, Kimberle. 1989. Demarginalizing the Intersection of Race and Sex. University of Chicago Legal Forum 1989: 139–167. ———. 1991. Mapping the Margins: Intersectionality, Identity Politics, and Violence Against Women of Color. Stanford Law Review 43: 1241–1299. Davis, Kathy. 2008. Intersectionality as Buzzword: A Sociology of Science Perspective on What Makes a Feminist Theory Successful. Feminist Theory 9: 70–77. De Burca, Grainne. 2012. The Trajectories of European and American Anti-Discrimination Law. American Journal of Comparative Law 60: 1–22. De Witte, Bruno. 2012. New Institutions for Promoting Equality in Europe: Legal Transfer, Bricolage and European Governance. American Journal of Comparative Law 60: 49–74. Défenseur des droits. 2018. Multiplication des critères de discriminations. Enjeux, effets et perspectives. Available at: https://defenseurdesdroits.fr/sites/default/files/atoms/files/actescolloq2018-num-07.01.19.pdf. Franklin, Cary. 2010. The Anti-Stereotyping Principle in Constitutional Sex Discrimination Law. New York University Law Review 85: 83–173.

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Here I refer not to national case law but only to the cases by the CJEU: Case 157/15, Achbita, (ECJ, GC 14 March 2017) EU:C:2017:203 and Case 188/15, Bougnaoui, (ECJ, GC 14 March 2017) EU:C:2017:204; and by the ECtHR which in certain cases found no violation of freedom of religion by such bans: App.-No 42393/98, Dahlab v Switzerland, (ECtHR 15 February 2001); App.-No 4474/98, Leyla Şahin v Turkey (ECtHR 10 November 2005); App.-No 27058/05, Dogru v France, (ECtHR 4 December 2008); App.-No. 31645/04, Kervanci v France, (ECtHR 4 December 2008); App.-No. 43835/11, S.A.S. v France (ECtHR, GC 1 July 2014); App.-No. 64846/11, Ebrahimian v France, (ECtHR 26 November 2015); App.-No. 377908/13, Belcacemi and Oussar v Belgium, (ECtHR 11 July 2017) and App.-No. 4619/12, Dakir v Belgium, ( ECtHR 11 July 2017) or in others declared applications simply inadmissible: App.-No. 43563/08, Aktas v France (dec.) (ECtHR 30 June 2009); App.-No. 14308/08, Bayrak v France (dec.), (ECtHR 30 June 2009); App.-No. 29134/08, Ghazal v France (dec.), (ECtHR 30 June 2009); App.-No. 18527, Gamaleddyn v France (dec.), (ECtHR 30 June 2009).

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Havelková, Barbara. 2017. Gender Equality in Law. Uncovering the Legacies of Czech State Socialism. Oxford and Portland, Oregon: Hart. Kahn, Robert A. 2014. Why Do Europeans Ban Hate Speech? A Debate Between Karl Loewenstein and Robert Post. Hofstra Law Review 41: 545–585. Khaitan, Tarunabh. 2018. A Theory of Discrimination Law. Oxford: OUP. Lester, Anthony. 1988. The Overseas Trade in the American Bill of Rights. Columbia Law Review 88: 537–561. MacKinnon, Katherine A. 1979. Sexual Harassment of Working Women. Yale: Yale University Press. Mayeri, Serena. 2014. Reasoning from Race. Feminism, Law, and the Civil Rights Revolution. Harvard: Harvard University Press. Möschel, Mathias. 2014. Law, Lawyers and Race. Critical Race Theory from the United States to Europe. London: Routledge. ———. 2017. If and When Sexual Orientation and Age Intersect: Parris. Common Market Law Review 54: 1835–1851. O’Connell, Rory. 2009. Cinderella Comes to the Ball: Article 14 and the Right to Non-Discrimination in the ECHR. Legal Studies 29: 211–229. Oppenheimer, David, Sheila Foster, and Sora Han. 2012. Comparative Equality and AntiDiscrimination Law. Cases, Codes, Constitutions, and Commentary. New York: Foundation Press. Rubio-Marín, Ruth. 2012. A New European Parity-Democracy Sex Equality Model and Why It Won’t Fly in the United States. American Journal of Comparative Law 60: 99–125. Suk, Julie. 2007. Equal by Comparison: Unsettling Assumptions of Antidiscrimination Law. American Journal of Comparative Law 55: 295–346. ———. 2015. Disparate Impact Abroad. In A Nation of Widening Opportunities. The Civil Rights Act at 50, ed. Ellen D. Katz and Samuel R. Bagenstos, 283–306. Michigan Publishing. Thomas, Kendall. 1999. The Political Economy of Recognition: Affirmative Action Discourse and Constitutional Equality in Germany and the USA. Columbia Journal of European Law 5: 329–364. Timmer, Alexandra. 2011. Toward and Anti-Stereotyping Approach for the European Court of Human Rights. Human Rights Law Review 11: 707–738. ———. 2016. Gender Stereotyping in the Case Law of the EU Court of Justice. European Equality Law Review 1: 37–46. Waddington, Lisa. 1994. Legislating to Employ People with Disabilities: The European and American Way. Maastricht Journal of European and Comparative Law 1: 367–395.

The European Union as Promoter of Equality in Asia: Beyond Economic Tools of Influence Holning Lau and Kelley Loper

Contents 1 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 The Importance of Non-economic Tools of Influence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.1 Limitations of Economic Hard Power . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.2 Soft Power Alternatives . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 Judicial Engagement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.1 India . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.2 Hong Kong . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.3 From Monologue to Dialogue . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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Abstract The European Union’s (EU’s) foreign policy objectives include promoting equality rights around the world. Commentary on such efforts in Asia has focused on the EU’s application of economic pressure to influence Asian states. This chapter seeks to shift the focus to a range of non-economic tools that the EU uses to promote equality rights in Asia. These “soft power” options include, but are not limited to, conducting official “human rights dialogues” with Asian leaders, providing technical assistance to government and civil society actors, developing social media campaigns, and setting positive examples through progressive law reforms in the EU. This chapter first explains why it is important for the EU to support equality rights through the exercise of soft power. It then specifically considers the EU’s highest court, the European Court of Justice (ECJ), as a source of soft power. Some Asian courts cite the ECJ as persuasive authority. The ECJ thus indirectly promotes equality rights in Asia by setting examples. It is problematic, however, that Asian courts learn from the ECJ while the ECJ and other EU H. Lau (*) University of North Carolina School of Law, Chapel Hill, NC, USA e-mail: [email protected] K. Loper The University of Hong Kong, Faculty of Law, Hong Kong, China © Springer Nature Switzerland AG 2020 T. Giegerich (ed.), The European Union as Protector and Promoter of Equality, European Union and its Neighbours in a Globalized World 1, https://doi.org/10.1007/978-3-030-43764-0_25

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institutions fail to reciprocate by learning from rights-protective Asian courts. This unidirectional flow of information reflects and reinforces neocolonial dynamics. The EU could allay concerns about neocolonialism, and perhaps increase its influence in Asia, by engaging Asian courts in a two-way dialogue on equality rights.

1 Introduction The European Union’s (EU’s) foreign policy objectives include promoting equality rights around the world.1 Academic commentary on such efforts in Asia has focused on the EU’s use of economic pressure to influence Asian jurisdictions,2 namely the conditioning of economic agreements on human rights compliance.3 This chapter seeks to shift the focus to a range of non-economic tools for promoting equality rights in Asia.4 These “soft power” methods include, but are not limited to, conducting official “human rights dialogues” with Asian leaders, providing technical assistance to government and civil society actors, initiating social media campaigns, and setting positive examples through progressive law reforms in the EU. Instead of relying on economic levers, these soft power tactics seek to promote reforms through persuasion or capacity-building within Asia.5 This chapter proceeds as follows. In Sect. 2, we explain why non-economic tools for promoting equality rights are important. As Asian countries’ economic powers have grown, the EU’s economic leverage has diminished. In addition, many commentators consider the conditioning of economic agreements on human rights compliance to be a “hard power” approach that is overly coercive. Rights protections that emerge from such tactics are at risk of being maligned by critics as neocolonial 1

Promotion of equality rights is a component of the EU’s external efforts to promote human rights more generally. See, e.g., the European Union (2018), pp. 55–80. In its 2016 global strategy on foreign and security policy, the European Union explained that it aims “to champion the indivisibility and universality of human rights . . .”; “promote human rights through dialogue and support, including in the most difficult cases”; and “persistently seek to advance human rights protection.” European Union June (2016), pp. 18, 26, and 38. 2 We use the term “jurisdictions” to encompass Asian countries as well as semi-autonomous territories such as Hong Kong. In this chapter, we focus on jurisdictions from the South, East, and Southeast Asian subregions. 3 E.g. Cremona (1995), Miller (2004), Bartels (2005), Borreschmidt (2014) and Sicurelli (2015). 4 To the extent that commentators have examined the EU’s use of non-economic strategies to promote human rights in Asia, they have focused narrowly on the “human rights dialogues” that the EU has conducted with state leaders in Asia. This chapter addresses a broader range of non-economic tools of influence. 5 Like many commentators, we refer to the EU’s use of economic tools of influence as an exercise of “hard power.” See, e.g., Meunier and Vachudova (2018). It is worth noting, however, that some commentators define hard power more narrowly as military power and, therefore, refer to economic leverage as a form of soft power. See, e.g., Hutt (2019).

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“Western” impositions; this could undermine the public’s perception of the legitimacy of the rights protections.6 In light of these considerations, it is important for the EU to strategically use soft power tactics to promote equality. Section 3 of this chapter then examines the EU’s highest court, the European Court of Justice (ECJ), as a source of the EU’s soft power. To the best of our knowledge, the ECJ’s power to influence Asia has not yet been examined in academic literature, and this chapter helps to fill that gap. Presenting case studies from India and Hong Kong, we show that these jurisdictions cite the ECJ in human rights cases. The ECJ indirectly promotes equality rights in Asia by setting examples for these courts. It is problematic, however, that Asian courts learn from the ECJ’s decisions while the ECJ and other relevant EU institutions fail to reciprocate by learning from rights-protective Asian courts. This unidirectional flow of information reflects and reinforces neocolonial dynamics. We propose a thought experiment: imagine a world in which the EU also draws inspiration from Asian courts that protect equality rights. The EU could allay concerns about neocolonialism, and perhaps increase its impact in Asia, by engaging Asian courts in a two-way dialogue.

2 The Importance of Non-economic Tools of Influence In this section, we seek to illuminate why it is important for the EU to promote equality rights through means other than the conditioning of trade and economic assistance on Asian jurisdictions’ rights records. We begin by examining the limitations of such economic tools of influence. Afterwards, we discuss the strengths and weaknesses of a variety of “softer” tools. To be clear, we do not suggest that economic tools are never appropriate. Indeed, economic coercion can sometimes be effective, especially if coupled with soft power methods.7 Violations of equality rights may also be so egregious that the EU would be right, as a matter of principle, to respond by imposing economic sanctions. A detailed exploration of such circumstances, however, is beyond the scope of this chapter. Instead, this section provides a broad overview of the importance of looking beyond economic tools to promote equality rights in Asia.

6

Duquette (2001). For a discussion supporting the use of hard power to promote human rights, see Hafner-Burton (2005). For discussions on the importance of strategically combining hard and soft power, see, e.g., Nye (2009). 7

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Limitations of Economic Hard Power

The EU has used—and continues to use—economic tools to influence states beyond its borders. In its 2015–2019 Action Plan on Human Rights and Democracy, the Council of the European Union emphasized that it would, without exception, “promote human rights in all areas of its external action”. In this regard it has conditioned trade and aid agreements on human rights compliance. For example, an external country’s eligibility for the EU’s Generalised Scheme of Preferences, which offers developing countries preferential access to the EU market, is conditioned partly on ratification and implementation of human and labor rights instruments.8 Commentators often refer to the wielding of economic power—in the form of both “carrots” and “sticks”—as “hard power” means of influence.9 Existing scholarly literature offers two forceful critiques of the EU’s use of economic hard power. The first critique is purely pragmatic and concerns the decline of the EU’s economic leverage. As Asian economies—such as China’s—have grown, the EU’s economic leverage has diminished.10 Since wealthier Asian countries are also providing aid to poorer Asian countries, even relatively less developed Asian countries now have a stronger bargaining position vis-à-vis the EU.11 As a result, the EU has backpedaled from some of its economic threats, and has inconsistently incorporated human rights clauses in economic agreements.12 For example, it has maintained amicable trade agreements with China and Singapore, despite initial concerns about those countries’ human rights violations.13 The EU has also continued to provide development aid to the Philippines, apparently turning a blind eye toward human rights violations committed by President Duterte’s regime there.14 The importance of the Philippines as a geopolitical partner, and its ability to receive economic aid from other sources, has made economic threats from the EU less viable as a foreign policy option. Indeed, leaders of some Asian states have openly pushed back against the EU’s economic threats. For example, regarding the EU’s possible invocation of human rights to withdraw from a deal granting Cambodia tariff-free access to the EU market, Cambodian Prime Minister Hun Sen reportedly told a group of factory workers that “[i]f they give us preferential access, it won’t make us rich. If they withdraw it from us, it won’t make us dead”.15 Another example comes from India. The government of India, a democracy with strong constitutional rights, reportedly 8 Regulation (EU) No. 978/2012 of the European Parliament and of the Council of 25 October 2012 applying a scheme of generalised tariff preferences, Article 9. 9 E.g. Nye (2003) and Akçay and Kanat (2018). 10 Orbie and Khorana (2015), Hutt (2019) and Deringer et al. (2019). 11 See, e.g., Goh (2016) and Kutlay (2018). 12 Velutti (2016), Borreschmidt (2014), Hoang and Sicurelli (2017) and Duquette (2001). 13 McKenzie and Meissner (2017), Hoang and Sicurelli (2017) and Panebianco (2006). 14 Dela Cruz (2018). 15 Chheng (2019).

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rejected the EU’s attempt to negotiate a free trade agreement conditioned on human and labor rights protections because it viewed the conditions as patronizing.16 The second critique of using economic hard power takes issue with the coerciveness of such influence. Some commentators criticize the EU’s conditionality clauses in economic agreements for being neocolonial, in that they coercively impose so-called “Western” human rights on Asian jurisdictions.17 From a normative perspective, we disagree with describing the equality rights promoted by the EU as being “Western” in nature. We believe that equality rights are universal human rights, and that the protection of equality rights in Asia is not a form of Western imperialism. Still, it is worrying from a pragmatic standpoint that, when rights protections are imposed top-down by a foreign entity such as the EU, the public may perceive the protections to be the products of Western imperialism. As we discuss in the following subsection, rights protections are often more stable when they are homegrown by local actors exercising their agency, with the EU playing a supporting—not leading—role in the process. It is more difficult for opponents of rights protections to disparage homegrown protections for being foreign impositions.

2.2

Soft Power Alternatives

In light of the drawbacks of using economic hard power to promote equality rights in Asia, soft power tactics are important. For the purposes of our chapter, we are interested in particular aspects of the EU’s soft power, namely its ability to help cultivate a culture of equality rights in Asia through persuasion and capacitybuilding. By flexing this power, the EU can support the internal development of equality rights, as opposed to demanding related reforms from the outside. The EU has sought to exercise its soft power in many ways. The soft power tactic that has perhaps garnered the most attention is the EU’s attempt to influence Asian jurisdictions through regular “human rights dialogues” between the EU and individual Asian states or regional organizations such as ASEAN. For example, the EU has held annual human rights dialogues with China since 1995.18 Another soft power approach is the provision of technical assistance to government officials, judges, and civil society actors who are well-positioned to advance equality norms domestically in Asia.19 For example, in March 2017, the EU delegation in South Korea contributed expertise at a workshop attended by

16

Orbie and Khorana (2015), pp. 260–261. Fisher Onar and Nicolaïdis (2013). 18 Kinzelbach and Thelle (2011). 19 Cf. Crookes (2014) (describing the EU’s provision of technical assistance in the field of intellectual property as an exercise of soft power). 17

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government officials, and the workshop inspired South Korea’s development of measures to counter online gender-based violence.20 The EU has also lent its support to civil society organizations that work to advance equality rights. For example, the EU has funded human rights training for lawyers, marched in Pride Parades in cities such as Seoul and Tokyo, and launched social media campaigns to support domestic law reform efforts.21 The EU also promotes equality rights indirectly by setting positive examples through EU legislation and judicial opinions that can inspire developments in Asia. In Hong Kong, for example, some equality activists have modelled law reform proposals on EU Directives.22 In Sect. 3, we discuss another form of indirect influence, namely the impact of the ECJ’s equality jurisprudence on judicial developments within Asia. Some have criticized the EU’s soft power tactics as ineffective, calling the EU’s human rights dialogues with China disingenuous and merely for show.23 Due to such criticisms, in 2017, a group of NGOs even called for cessation of the EU-China human rights dialogues altogether.24 Another limitation of soft power is that certain exercises of soft power are slow to produce tangible results, and the outcomes may be difficult to measure. For example, funding to train human rights advocates may affect change over time, but the cultivation of new advocates can be slow. It involves a process of learning, gaining experience, and building networks before new advocates make a measurable impact. Yet, soft power tactics for promoting equality rights also have benefits, especially initiatives aimed at enabling local actors who are already interested in advancing equality rights in Asia, whether they are members of civil society or government actors. Exercises of soft power such as the provision of technical assistance to local actors can contribute to law reform that is relatively strong and stable. Supporting homegrown reform efforts within Asian jurisdictions is particularly important to certain areas of equality rights—such as sexual orientation equality, which is frequently condemned by opponents as a Western cultural imposition.25 For example, in October 2018, the Malaysian prime minister expressed his view that lesbian, gay, bisexual, transgender and intersex (LGBTI) rights are “Western values”.26 Protections of equality rights are more likely to take hold if local actors are seen to lead efforts incorporating the rights into local law. Even in a cosmopolitan

20 European External Action Service (2017) and European External Action Service (2018a), pp. 200–201. 21 European External Action Service (2018a, b, 2019). 22 See, e.g., Hong Kong Human Rights Commission et al. (2007) arguing for a more expansive definition of indirect discrimination in the Hong Kong Race Discrimination Bill based on the EU Race Directive and UK legislation which implemented the Directive. 23 Human Rights Watch (2017). 24 Ibid. 25 Human Rights Watch (2008), Chang (2016) and Lau (2018). 26 AsiaNews (2018).

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jurisdiction such as Hong Kong, which prides itself for being “Asia’s World City,” the perception of homegrown demand for equality rights makes a difference. For example, a prominent LGBTI rights advocate in Hong Kong, who happens to be white and grew up in the United Kingdom, has said that it was important that his client in Hong Kong’s groundbreaking gay rights litigation on unequal age-ofconsent laws was an ethnic Chinese, middle class, “local lad” who had the support of his family and employer.27 This plaintiff, who prevailed in court, symbolized the homegrown demand for LGBTI equality rights, countering notions that LGBTI rights are a form of cultural imposition from the West. To be sure, some people may contend that the EU’s soft power tools are still neocolonial. For example, one might argue that the EU imposes its values when it funds training for equality advocates in Asia. This criticism, however, is weaker than the neocolonial critique of hard power discussed above. Compared with making economic threats, the EU’s provision of technical assistance or training to actors within Asia is more clearly a form of support provided to local actors.28 To call such support a coercive imposition of foreign norms would be patronizing to the actors within Asia who are playing leading roles as change agents. It is beyond the scope of this brief chapter to evaluate all the strengths and weaknesses of various types of soft power exercised by the EU. Indeed, the effectiveness of particular forms of soft and hard power will vary on a case-bycase basis, depending on the target jurisdiction’s cultural, political, and legal context, among other factors. Rather than explore any one particular situation in detail, our goal has been to draw more attention to soft power options in general as potential tools for promoting equality rights in Asia, especially because scholarly literature to date has tended to focus on economic hard power. The following section will focus in greater detail on one particular form of soft power—judgments of the ECJ and their influence on courts beyond Europe.

3 Judicial Engagement A court’s decisions can have meaningful influence outside of its jurisdiction’s borders. A judicial opinion can, as persuasive authority, inform legal interpretations of a foreign court.29 Accordingly, scholars have recognized judicial opinions as a source of soft power.30 For example, Adam Dodek has described the Canadian 27

Moon (2017) (interviewing attorney Michael Vidler on his representation of Billy Leung). Local activists in Asia might welcome economic coercion from the EU that supports their causes. In comparison with economic coercion, however, tactics such as the provision of training and assistance to local actors are aimed more directly at empowering local actors. 29 See, e.g., Slaughter (1994), L’Heureux-Dubé (1998), Knop (2011) and Mohallem (2017) (evaluating transnational judicial dialogue across constitutional courts in South America). 30 Knop (2011); see also Law (2015) (describing judicial comparativism as a form of “judicial diplomacy”). 28

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Supreme Court’s growing influence on foreign courts as a rise in Canada’s “soft” power.31 Conversely, courts around the world are citing the U.S. Supreme Court less frequently than before, and Anne-Marie Slaughter has lamented this diminishment of the United States’ influence abroad.32 In this section, we examine the ECJ’s power to influence Asian courts’ protection of equality rights. We present case studies on India and Hong Kong.33 Courts in these two jurisdictions regularly cite comparative law, including ECJ jurisprudence, in their own human rights decisions. Our case studies show that the ECJ has played a role in shaping rights protections in India and Hong Kong. We are critical, however, of the unidirectional flow of information between the ECJ and these Asian courts. While courts in India and Hong Kong learn from the ECJ’s decisions, the ECJ fails to reciprocate by learning from rights-protective Asian court decisions. This unidirectional flow of information reflects and reinforces neocolonial dynamics. We argue that the EU could counter criticisms of neocolonialism, and perhaps increase its impact in Asia, by engaging Asian courts in a two-way dialogue on equality rights. To be sure, the ECJ’s influence does not extend to all parts of Asia. In some places, such as mainland China, there is no court that exercises review of constitutional rights, let alone one that would draw inspiration from ECJ judgments. Nonetheless, judicial influence is a source of power with respect to other parts of Asia. Although our case studies center on India and Hong Kong, these two jurisdictions are not the only ones in Asia with courts that draw inspiration from foreign judgments.34

3.1

India

In India, the Supreme Court and lower courts regularly cite foreign law.35 Indian courts have engaged meaningfully with EU law, including the ECJ’s case law. They

31

Dodek (2007), pp. 333–334. Knop (2011), p. 76 (quoting Anne-Marie Slaughter). 33 We chose these two jurisdictions out of convenience. Prior to developing this book chapter, we were already familiar with India and Hong Kong based on our previous research. We believed that courts in India and Hong Kong would serve as illuminating case studies because they have demonstrated a willingness to draw inspiration from foreign law. 34 A number of Asian courts, in addition to those of India and Hong Kong, draw inspiration from foreign law even if they do not explicitly acknowledge doing so through citations. See, e.g., Law (2015) (discussing the examples of Japan, South Korea, and Taiwan). It is worth noting that the ECJ’s influence on India and Hong Kong may also have ripple effects on other parts of Asia. For example, India’s case law has had an influence on courts in other South Asian countries (Knop 2011, p. 77). 35 For discussion on the Supreme Court’s citation of foreign law, see, e.g., Scotti (2013). 32

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do not blindly follow examples from the EU. Indeed, in some cases, the Indian Supreme Court has acknowledged and then refused to follow EU law.36 For example, the Indian Supreme Court noted that the death penalty is prohibited in the EU, but then it distinguished the Indian context and upheld capital punishment in India against a constitutional challenge.37 The Indian Supreme Court has also acknowledged the ECJ’s use of proportionality analysis, but it chose not to follow the ECJ’s precedent when defining the scope of Indian cases in which proportionality analysis would apply.38 In terms of equality rights, LGBT issues is an area in which the Indian Supreme Court has cited EU law approvingly in recent years. In National Legal Services Association (NALSA) v. Union of India (2014), the Supreme Court stated that India’s ban on sex discrimination in Articles 15 and 16 of India’s constitution should be interpreted to also prohibit gender identity discrimination.39 In its review of relevant comparative law, the Court cited the EU’s directive that codified the ECJ’s decision in P. v. S. and Cornwall County (P. v. S.),40 which ruled that the EU’s ban on sex discrimination in employment prohibited discrimination against transgender persons who seek, or have undergone, sex reassignment medical procedures. The Supreme Court also cited a European Parliament resolution that supported transgender rights.41 Although EU law is certainly not binding on India, the Court cited EU law with approval. Interestingly, the Indian Supreme Court also went further than the ECJ. Unlike the ECJ’s ruling in P. v. S., the Indian Supreme Court did not make sex reassignment surgery a prerequisite for protection from discrimination.42 The Indian Supreme Court also stated that the constitution’s prohibition of sex discrimination protects individuals who suffer discrimination because they identify outside the male/female binary.43 In Navtej Singh Johar v. Union of India (2018), which consisted of several concurring opinions, the Indian Supreme Court ruled that Section 377 of the Indian Penal Code was unconstitutional insofar as it criminalized consensual same-sex sexual activity.44 The Indian Supreme Court drew inspiration from the EU in two ways. First, the opinion by Chief Justice Misra and Justice Khanwilkar

36

Cf. ibid (discussing the fact that the Indian Supreme Court sometimes cites foreign law without following it). 37 Swamy Shraddananda v. State of Karnataka, (2008) 13 SCC 767. 38 Om Kumar v. Union of India, (2001) 2 SCC 386. 39 National Legal Services Authority v. Union of India (NALSA), (2014) 5 SCC 438, para. 59. 40 Ibid, para. 37; see also P. v. S. and Cornwall County Council, Case C-13/94 [1996] IRLR 347. 41 NALSA, para. 38. 42 Ibid, para. 76: “Gender identity as already indicated forms the core of one’s personal self, based on self identification, not on surgical or medical procedure. Gender identity, in our view, is an integral part of sex and no citizen can be discriminated on the ground of gender identity, including those who identify as third gender” (emphasis added). 43 Ibid, para. 59. 44 Navtej Singh Johar v. Union of India (2018) 10 SCC 1.

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cited P. v. S. to underscore the notion that the respect for human dignity should influence judicial interpretation.45 Second, Justice Chandrachud’s opinion cited an EU directive and ECJ case law to support the conclusion that indirect discrimination can be impermissible.46 India’s sodomy law was neutral on its face, but nevertheless resulted in indirect discrimination based on sexual orientation.

3.2

Hong Kong

Hong Kong courts have also engaged meaningfully with comparative human rights law, including ECJ decisions in a small number of cases. The Hong Kong cases which have cited EU law have involved a range of issues such as determining the appropriate comparator in pregnancy discrimination claims47 and defining the scope of equality rights for same-sex couples48 and non-citizens.49 The Court of First Instance in Hong Kong also considered, though distinguished and therefore refused to follow, P. v. S. when examining whether certain detention conditions for transgender persons amounted to sex discrimination.50 Although Hong Kong courts have cited ECJ jurisprudence less frequently than Indian courts have, Hong Kong courts are clearly willing to draw inspiration from foreign judicial opinions. In fact, a study published in 2009 found that foreign jurisprudence regarding the European Convention on Human Rights, including case law of the European Court of Human Rights (ECtHR), has been “the single most important source of reference” for Hong Kong courts when they interpret Hong Kong’s Bill of Rights.51 Although Hong Kong courts have not cited the ECJ as often as they have cited the ECtHR, citations to the ECJ may increase in the future as the ECJ’s corpus of human rights case law grows.52

45

Ibid, para. 136. Ibid, para. 395. 47 Chan Choi Yin Janice v. Toppan Forms (HK) Ltd. [2006] 3 HKC 143. 48 QT (Appellant) v Director of Immigration [2017] HKFLR. 49 Comilang Milagros Tecson & Anor v Commissioner of Registration & Ors [2012] HKCU 1282. 50 Navarro Luigi Recasa v. The Commissioner of Correctional Services and Another [2018] HKCU 2638, para. 67. 51 Chen (2009), p. 247. 52 Other factors may also influence the future frequency of Hong Kong courts’ citation to the ECJ. To date, Hong Kong courts have been most likely to cite ECJ decisions when the ECJ decision is discussed in a relevant UK case; this is because Hong Kong courts frequently engage UK jurisprudence. It may be, therefore, that after Brexit, the UK’s disengagement from EU law will result in Hong Kong courts citing the ECJ less often. Yet, if the ECJ starts engaging Asian courts in judicial dialogue, as we propose, perhaps Hong Kong courts would become more likely to cite the ECJ. 46

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497

From Monologue to Dialogue

While India and Hong Kong have looked to the EU to see what they can learn, the EU has not reciprocated. A search of ECJ cases suggests that the ECJ does not cite Asian courts. This is perhaps not surprising because the ECJ rarely cites any international or foreign law at all, with the exception of citing the ECtHR.53 Scholars have criticized the ECJ for its failure to consult international and foreign law. Gráinne de Búrca, for example, has argued that the ECJ “is missing the opportunity of developing informed expertise in the field of human rights adjudication,” and that the ECJ’s failure to engage international and foreign law is “at odds with the internationalist orientation of the EU”.54 Beyond the courts, other components of the EU similarly fail to look to Asia for inspiration. For example, the European Parliament’s LGBTI Intergroup monitors the situation of LGBTI rights within EU member states and around the world.55 It frequently issues statements condemning Asian countries’ LGBTI records, but rarely, if ever, applauds positive developments in Asia, and has not acknowledged that Asian jurisdictions have sometimes gone further than the EU in protecting LGBTI rights. In 2013, the LGBTI Intergroup issued a statement condemning the Supreme Court of India’s decision in Koushal v. Naz Foundation, which upheld India’s criminal prohibition on same-sex sexual activity.56 Yet, the LGBTI Intergroup never followed up with a statement to acknowledge India’s 2018 Supreme Court decision in Navtej Singh Johar, which overruled Koushal and declared the criminalization of consensual same-sex intimacy to be unconstitutional. Moreover, the LGBTI Intergroup never acknowledged the Indian Supreme Court’s 2014 decision in NALSA, which built on and went further than EU law’s protections against gender identity discrimination. While the LGBTI Intergroup ignored such positive developments in Asia, it issued statements celebrating positive court decisions within Europe.57 What we see is that the EU is engaged in a monologue. It speaks on equality rights while Asian jurisdictions like India and Hong Kong listen; however, the EU does not reciprocate by engaging with what India and Hong Kong have had to say about equality rights. In fact, the LGBTI Intergroup directly speaks at Asia by issuing statements to condemn violations of LGBTI rights in Asia. However, it has not engaged with positive developments, such as India’s NALSA decision, to reflect on

53

De Búrca (2013) and Voeten (2010). De Búrca (2013), p. 184. 55 The LGBTI Intergroup is “an informal forum for Members of the European Parliament who wish to advance and protect the fundamental rights of lesbian, gay, bisexual, transgender and intersex (LGBTI) people.” The European Parliament’s LGBTI Intergroup, http://lgbti-ep.eu (last visited 22 September 2019). 56 See LGBTI Intergroup (2013); see also Suresh Kumar Koushal v. Naz Foundation, (2014) 1 SCC 1: (2013) 4 SCC (Cri) 1. 57 See, e.g., LGBTI Intergroup (2017). 54

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how the EU’s own protection of LGBTI rights may be insufficient. The EU’s monologue reflects and reinforces neocolonial dynamics, wherein Asian jurisdictions are treated as recipients of enlightening information from the EU, as opposed to potential partners in a two-way conversation.58 As a thought experiment, let us imagine a world where we move from monologue to dialogue—where the ECJ engages rights-protective Asian courts in a figurative conversation by referencing their decisions.59 Not only would the ECJ mitigate concerns about neocolonialism; it might actually grow its influence in Asia. Commentators have suggested that domestic courts are more likely to cite foreign courts if the foreign courts engage them in two-way dialogue.60 Some believe that the decline in the U.S. Supreme Court’s international influence can be attributed, in part, to the fact that the U.S. Supreme Court does not engage foreign courts in a robust fashion.61 Turning to India, there are signs that some justices of the Indian Supreme Court care about the Court’s influence abroad. For example, in dicta in the case of State of Uttar Pradesh v. Jeet S. Bisht (2007), Justice S.B. Sinha celebrated the fact that the Indian Supreme Court’s jurisprudence has garnered attention outside of India.62 In particular, he quoted Professor Sandra Fredman of Oxford University for her suggestion that the ECJ should draw inspiration from the Indian Supreme Court’s cases on public interest law.63 Justices like S.B. Sinha may feel additionally motivated to engage with ECJ jurisprudence if the ECJ engages the Indian Supreme Court in return. Gender identity discrimination is a prime area for two-way information sharing between the EU and India. As discussed above, the Supreme Court of India’s judgment in NALSA not only cited P. v. S. to support the proposition that sex discrimination subsumes gender identity discrimination; it also went beyond P. v. S. in elaborating on the ways in which gender identity discrimination is a form a sex discrimination. At the conference where we first presented this book chapter, some commentators acknowledged there is debate within Europe on the soundness of the holding in P. v. S. Going forward, as scholars and others involved in the development of EU law debate whether the reasoning in P. v. S. is

Cf. Knop (2011), p. 77 (discussing the “imperialism critique of transjudicialism,” which applies when citations travel only in one direction from Western to non-Western courts). 59 We recognize that the ECJ would need to retreat from its aversion toward citing foreign courts generally, not only Asian courts. We hope this chapter contributes to the discourse that encourages such reform, but we recognize that such reforms may be unlikely to materialize due to the entrenchment of judicial citation conventions. 60 See, e.g., Mohallem (2017); Kalb (2013), pp. 441–442. 61 Lester (1988), p. 561; L’Heureux-Dubé (1998); Liptak (2008) (citing the views of Aharon Barak and Michael Kirby). 62 Para. 8. 63 Para. 9. 58

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conceptually sound, they should take into account insights from foreign decisions, including India’s NALSA judgment which cited and expanded upon P. v. S.64 In our thought experiment, imagine that a transgender person who has no intention of undergoing sex reassignment surgery files a discrimination claim seeking to expand on P. v. S., and the case reaches the ECJ. We contend that, if this were to happen, the ECJ should engage the decision in NALSA. Even if such litigation never materializes, however, policymakers and entities such as the LGBTI Intergroup should use NALSA as a springboard for examining the inadequacies of the EU’s nondiscrimination laws. They could, for example, draw support from NALSA to call for the development of EU nondiscrimination protections for individuals who identify as non-binary and who do not intend to undergo any sex reassignment surgery. In moving from monologue to dialogue, the EU would distance itself from neocolonial critiques. Europe would no longer be speaking at Asia, but instead it would be engaging progressive Asian jurisdictions as allies—even partners—jointly moving together to advance the principles of equality and nondiscrimination. To be sure, we do not suggest that the EU should engage with all Asian courts, including illiberal courts with poor records of adjudicating human rights claims. Instead, the ECJ should engage Asian courts that have produced a substantial jurisprudence protecting equality rights, such as the courts of India and Hong Kong. Indeed, commentators have suggested that courts committed to protecting human rights should distinguish among foreign courts, assigning particularly persuasive value to courts in foreign jurisdictions that have records of protecting human rights.65

4 Conclusion In this chapter, we have illuminated the importance of looking beyond economic tools to other means through which the EU can promote equality rights in Asia. Especially because the EU’s economic leverage has declined, these alternative “soft power” tools are important. This chapter has also shed light on the fact that the ECJ’s jurisprudence plays a role in promoting equality rights in Asia. As the ECJ influences Asian law, however, the EU should also engage with judicial developments in Asia from which the EU could learn. This move from monologue to dialogue would not only mitigate concerns about neocolonialism but could help to increase the ECJ’s impact abroad. While NALSA is worthy of attention for expanding gender identity rights, it also has its flaws. For example, the judgment is marred by some inconsistencies. The main opinion, written by Justice Radhakrishnan, generally supports individuals’ self-determination of gender identity, but some parts of the judgment have been rightly criticized for being inconsistent with the principle of selfdetermination. See, e.g., Dutta (2014). Despite such criticisms, NALSA was groundbreaking. Courts outside India can build on and improve upon the NALSA judgment. 65 See, e.g., Jackson (2005), p. 125. 64

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This chapter has provided a broad overview of the alternatives to economic tools of influence. It has also provided a cursory discussion on judicial engagement as soft power. Much remains to be explored in further research. We hope that commentators will draw inspiration from this chapter to examine in greater depth how the EU can best put together an effective package of tools—soft power options as well as hard power options when appropriate—for particular jurisdictions in Asia. That analysis will need to be highly contextualized to factors particular to the specific jurisdiction. Acknowledgements We thank Shreya Atrey, Surabhi Chopra, Mara Malagodi and Jeffrey Redding for conversations that helped us develop this chapter’s discussion on Indian law.

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