Care on the move: the gender care gap and intra‐EU mobility
| Published date | 01 December 2023 |
| Author | NINA MILLER |
| Date | 01 December 2023 |
| DOI | http://doi.org/10.1111/jols.12460 |
DOI: 10.1111/j ols.12460
ORIGINAL ARTICLE
Care on the move: the gender care gap and
intra-EU mobility
NINA MILLER
School of Law, University of Glasgow,
Glasgow, Scotland
Correspondence
School of Law,University of Glasgow,
Stair Building, 5–9 The Square, Glasgow,
G12 8QQ, Scotland.
Email: nina.miller@glasgow.ac.uk
Funding information
ESRC, Grant/AwardNumbers:
ES/W006618/1, ES/J500136/1
Abstract
The structure, interpretation, and implementation of the
European Union (EU) free movement of persons rules
mean that when one’s circumstances involve caring
responsibilities, the quality of one’s rights and protec-
tions under EU law diminishes. The consequence of this,
in the context of the gender care gap, is that women who
are exercising their free movement rights and living in
another EU member state are exposed to a dispropor-
tionately increased risk of legal and physical precarity,
poverty, destitution, and exploitation. They face chal-
lenges in attaining and retaining rights and are at risk
of falling through gaps that exist between legal rules.
Furthermore, the gender care gap is not visible. The con-
nection between the gender care gap and the EU free
movement rules has not been made by EU policy makers
and civil society; there is currently no strategyamong EU
civil society organizations to represent the lived expe-
rience of EU citizens and lobby the EU institutions for
progress on gender equality in this regard.
1 INTRODUCTION
This article evaluates the European Union (EU) free movement of persons rules in the context
of the gender care gap (the disproportionate allocation of unpaid care work between women and
This is an open access article under the terms of the Creative Commons Attribution License, which permits use, distribution and
reproduction in any medium, providedthe original work is properly cited.
© 2023 The Authors. Journal of Law and Society published by John Wiley & Sons Ltd on behalf of Cardiff University (CU).
558 wileyonlinelibrary.com/journal/jols J.Law Soc. 2023;50:558–578.
559
men). The gender care gap is enjoying a prominent place on the policy agenda of the EU insti-
tutions, signalled by, inter alia, the adoption of the Work–Life Balance for Parents and Carers
Directive,1the Council Conclusions on Tackling the Gender PayGap: Valuation and Distribution
of Paid Work and Unpaid Care Work,2the Gender Equality Strategy 2020–2025 of the European
Commission (EC) (which focuses on closing the gender care gap),3and the European Care Strat-
egy.4These developments are in response to the gender care gap and the significance that this
has for, inter alia, the gender pay gap, the gender employment gap, and the gender pension gap.5
The focus of the EU institutions on the gender care gap began before the COVID-19 pandemic,
the impact of which has been to further highlight the issues surrounding the gap. Care is often
privatized, deemed to take place in private places and to be part of our private lives and personal
choices.6The pandemic rendered the value of care itself more tangible, making it ‘starkly visible’
how ‘indispensable’ paid and unpaid care is in our daily lives, for the well-being and functioning
of our societies and our economies.7The effect of the pandemic was also to widen the gender care
gap, which prompted calls for a gendered response to pandemic recovery, one that took account
of the gap.8Forall of these reasons, the gender care gap is on the minds of policy makers in the EU
(and elsewhere). It is therefore an opportune moment to reflect on how EU law intersects with
the gap and evaluate the extent to which it is contributing to the transformation or entrenchment
of gender inequality in this regard.
The focus of the EU institutions in relation to the gender care gap is largely on matters that
fall within the field of EU social policy and rights in the workplace.9However, as the Council
Conclusions recall, Article 8 of the Treaty on the Functioning of the European Union (TFEU)
requires the EU, ‘in all its activities’, to aim to eliminate inequalities between women and men,
1Directive (EU) 2019/1158 of the European Parliament and of the Council on Work–LifeBalance for Parents and Carers
and Repealing Council Directive 2010/18/EU [2019] OJ L188.
213584/20 Council Conclusions on Tackling the Gender Pay Gap: Valuation and Distribution of Paid Work and Unpaid
Care Work, Council of the EuropeanUnion, Brussels, 2 December 2020.
3EC, Communication from the Commission to the European Parliament, the Council, the European Economic and
Social Committee and the Committee of the Regions: A Union of Equality – Gender Equality Strategy 2020–2025 [2020]
COM/2020/152 final, at <https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=COM:2020:152:FIN>.
4EC, Communication from the Commission to the European Parliament, the Council, the European Economic and Social
Committee and the Committee of the Regions on the European Care Strategy [2022] COM/2022/440 final, at <https://eur-
lex.europa.eu/legal-content/EN/TXT/?uri=COM:2022:440:FIN>.
5European Institute for Gender Equality (EIGE), Gender Inequalities in Care and Consequences for the Labour Mar-
ket (2021), at <https://eige.europa.eu/publications-resources/publications/gender-inequalities-care-and-consequences-
labour-market>.
6F. E. Olsen, ‘The Family and the Market: A Study of Ideology and Legal Reform’ (1983) 96 Harvard Law Rev.1497;J.
Tronto, Moral Boundaries: A Political Argument for an Ethic of Care (1994).
7UN Women, ‘Unpaid Care Work: Your Daily Load and Why It Matters’ UN Women, 13 May 2020, at
<https://www.unwomen.org/en/digital-library/multimedia/2020/5/explainer-unpaid-care-work-your-daily-load-
and-why-it-matters>. See also Council Conclusions, op. cit., n. 2.
8Council Conclusions, op. cit., n. 2; UN Women,op. cit., n. 7.
9Through a combination of soft law measures and individual rights in the field of EU social policy, the EU has played
an active role in engaging with the gendered impact of the unequal distribution of unpaid care work: see for example
N. Busby and G. James, ‘Regulating Workand Care Relationships in a Time of Austerity: A Legal Perspective’ in Work–
Life Balance in Times of Recession, Austerity and Beyond, eds S. Lewis et al. (2018) 78; E. Caracciolo di Torella and A.
Masselot, Reconciling Workand Family Life in EU Law and Policy (2010); E. Caracciolo di Torella and A. Masselot, Caring
Responsibilitiesin European Law and Policy: Who Cares? (2020); I. Isailovic, ‘Gender Equality as Investment: EU Work–Life
Balance Measures and the Neoliberal Shift’ (2021) 46 YaleJ. of International Law 277.
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