Broadening the Scope and the Norms of EU Gender Equality Law: Towards a Multidimensional Conception of Equality Law
| Date | 01 December 2005 |
| DOI | 10.1177/1023263X0501200405 |
| Published date | 01 December 2005 |
| Subject Matter | Article |
BROADENING THE SCOPE AND THE NORMS
OF EU GENDER EQUALITY LAW: TOWARDS
A MULTIDIMENSIONAL CONCEPTION
OF EQUALITY LAW
DAGMAR SCHIEK*
§1. INTRODUCTION
Introducing Article 13 and Article 3 (2) EC, the Treaty of Amsterdam fundamentally
changed EU equality law, adding the prospect of multiplying the grounds of forbidden
discrimination and their scope of application and at the same time creating a positiv e
obligation on the part of the European Community ‘to eliminate inequalities, and to
promote equality, between men and women’.
1
Both provisions are placed in part one of
the Treaty, under the heading ‘principles’, enhancing their relevance for interpreting the
Treaty norms and secondary law.
12 MJ 4 (2005) 427
* Jean Monnet Professor of European Economic Law at Carl von Ossietzky University of Oldenburg
(Germany). This article began as a presentation at the conference ‘Progressive implementation; new
developments in European Union gender equality law’ in Den Haag. I would like to thank Prof. Rikki
Holtmaat (University of Leiden) and Wilhelmien Ruygrok (E-Quality) for making this event possible
and the participants for inspiring discussions. Thanks are also due to the editor of this special issue, Prof.
Tamara Hervey (University of Nottingham) for patient editing and suggestions to enhance precision.
Finally, I would like to thank Ulrike M. Vieten, M.A. (University of East London) for sharing her
knowledge on sociological approaches to multidimensionality. The responsibility for any errors remains
with the author.
1
This clause has become known as the gender mainstreaming clause, containing a definition of gender
mainstreaming as combating gender inequality and promoting gender equality in all policy areas. This
does not mean that mainstreaming ‘other equalities’ will never become an objective of the European
Union (for some suggestions see J. Shaw, Mainstreaming Equality in European Law and Policy Making,
commissioned by European Network Against Racism, Brussels 2004). The relevant provisions of the
Treaty Establishing a Constitution for Europe, however, seem to deepen the division between gender
equality law on the one hand and the combating of discrimination based on sex, racial or ethnic origin,
religion or belief, disability, age or sexual orientation on the other. As regards gender equality, the
mainstreaming clause is maintained, but granted its own article (III-116). As regards non-discrimina-
tion, Article III-118 establishes an active obligation on the part of the EU to combat discrimination while
defining and implementing its policies. This means that under the Constitutional Treaty there will be
two active obligations as regards gender equality: combating sex discrimination and furthering equality.
428 12 MJ 4 (2005)
These principles are here presented as being common principles of EU equality law.
Of course, the impetus of Article 13, which enables the Member States to take measures to
‘combat discrimination’, is somewhat different from an obligation to further equality
(Article 3 (2)). Combating discrimination, the Member States aim to diminish negativ e
social phenomena, whereas the Community, while promoting equality, strive s towards a
positive aim. Nonetheless, in Community law the combating of discrimination and the
aim of equality are closely related.
2
As yet, three secondary law instruments have been
based on Article 13 EC Treaty.
3
According to their titles, their shared aim is ‘equal
treatment of persons’ – irrespective of race or ethnic origin, religion and belief, age,
disability, sexual orientation and sex. While their demands on the national legislators go
beyond a mere formal concept of equal treatment, encompassing more substantive aims
such as ‘putting into effect the principle of equal treatment’, combating discrimination
beyond the public sphere and even furthering equality in practice,
4
they focus on persons
as opposed to goods, services or other non-human categories. Focussing on human
beings, non-discrimination law aims, at a substantive level, to eliminate such
differentiations between persons that are based on certain characteristics and that would
fully or partly exclude persons from resources, rights or opportunities, as combating to
act. Combating discrimination against persons predominantly requires equal treatment,
albeit in a substantive and not merely formal sense. Regarding gender equality, the stated
aim of eliminating inequalities between women and men in Article 3 (2) EC is probably
not meant literally, as some differences between women and men are certainly beyond the
regulatory powers of the EU institutions. Consequently, Article 3(2) EC strives for gender
equality as a positive aim of non-discrimination law instead of obliging the institutions to
pursue formal equal treatment of women and men. Accordingly, gender equality could
also be captured as the principle of equal treatment of persons irrespective of gender – as
is witnessed by the aims of Directive 2004/113/EC.
Equal treatment of persons irrespective of certain characteristics (the forbidden
grounds of discrimination) can thus be presupposed as the common aim of a positive
obligation to pursue equality and the competence to combat discrimination. Such equal
treatment is also the principal aim of EU equality law and EU non-discrimination law.
Both notions are used interchangeably in this article.
Dagmar Schiek
2
E. Holmes, ‘Anti-Discrimination Rights without Equality’ 68 Mod. L. Rev. 175 (2005), makes the point
that equality and non-discrimination are not related at all on the level of principle. While brilliantly
argued, this proposition is not shared here.
3
Directive 2000/43/EC of 29 June 2000, implementing the principle of equal treatment between persons
irrespective of racial or ethnic origin, [2000] OJ L 180/22, Directive 2000/78/EC of 27 November 2000,
establishing a general framework for equal treatment in employment and occupation, [2000] OJ L 303/
16 and Directive 2004/113/EC of 13 December 2004, implementing the principle of equal treatment
between men and women in the access to and supply of goods and services [2004] OJ L 373/37.
4
For a detailed analysis of the directives’ aims in relation to dualities of equality see D. Schiek, ‘A New
Framework of Equal Treatment of Persons in EC Law’ 8 Eur. L. J. 290 (2002).
The aim of this article is to discuss some consequences of placing the combating of
discrimination and the promotion of equality among the principles of Community law.
The focus is firstly on the ensuing widening of the scope of EU (gender) equality law and
secondly on the increase of grounds of forbidden discrimination. In concluding, some
steps towards a multidimensional conception of equality law are proposed.
§2. BROADENING OF SCOPE – BEYOND EMPLOYMENT AND
OCCUPATION
Until 2000, EC equality legislation was more or less a subsection of EU social policy,
covering most aspects of employment and occupation.
5
A. SOCIAL ADVANTAGES, EDUCATION, SUPPLY OF GOODS AND
SERVICES
When Article 13 EC was first used as a competence norm, EU equality law encompassed
areas other than employment and occupation: Directive 2000/43/EC, ‘implementing the
principle of equal treatment between persons irrespective of racial or ethnic origin’
(hereinafter the Anti-racism Directive), covered social advantages, education and supply
Broadening the Scope and the Norms of EU Gender Equality Law: Towards a
Multidimensional Conception of Equality Law
12 MJ 4 (2005) 429
5
The principle of equal treatment irrespective of sex is applicable to access to employment and
employment conditions other than pay, including training (Directive 76/207/EEC), membership of and
involvement in organisations of workers and employers and professional organisations (Directive 76/
207/EEC as amended by Directive 2002/73/EC), certain aspects of self employed occupations (Directive
86/613/EEC and Directive 76/207/EEC as amended by Directive 2002/73/EC) and social security issues
(Directive 79/7/EEC). As regards national discrimination, the situation is similar: the prohibition to
discriminate on grounds of a nationality of a EU Member State is one of the corner stones of the EC
Treaty and established generally through Article 12 EC as well as specifically for workers, self-employed
persons and those providing or receiving services under Articles 39, 43 and 49/50 EC. The ECJ’s case law
has considered the fundamental freedoms to guarantee equal treatment regarding ‘social advantages’ that
were connected to their material scope, and also protected ‘service receivers’ from nationality
discrimination (for extended coverage see G. Davies, Nationality Discrimination in the European Internal
Market (Kluwer, 2002); on more recent developments G. Davies, ‘Any Place I Hang my Head or:
Residence is the New Nationality’ 22 Eur. L. J. 43 (2005)). Secondary law, however, focused on
employment and occupation as well as on social security (Regulation 1612/68/EEC of the Council of
15 October 1968 on freedom of movement for workers within the Community [1968] OJ L 257/2 on
employment and regulation EEC 1408/71 of the Council of 14 June 1971 on the application of social
security schemes to employed persons and their families moving within the Community [1971] OJ L
149/2 on social security. Regulation 1612/68, however, also covered access to housing and to union
services (Article 8). In addition, Directive 2004/38/EC of the European Parliament and of the Council of
29 April 2004 on the right of citizens of the Union and their family members to move and reside freely
within the territory of the Member States ([2004] OJ 229/34), now grants aright of equal treatment with
nationals of a host member state to all Union citizens and their family members ‘within the scope of the
Treaty’, excluding social assistance for the first three month of residence and any maintenance aid for
studies of vocational training except for employees and self-employed persons and their family members.
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