Cedaw and the European Union's Policy in the Field of Combating Gender Discrimination
| Date | 01 December 2005 |
| Published date | 01 December 2005 |
| DOI | 10.1177/1023263X0501200404 |
| Subject Matter | Article |
CEDAW AND THE EUROPEAN UNION’S POLICY
IN THE FIELD OF COMBATING GENDER
DISCRIMINATION
RIKKI HOLTMAAT and CHRISTA TOBLER*
ABSTRACT
This paper aims to show that the Convention for the Elimination of All Forms of
Discrimination Against Women (CEDAW) can provide inspiration and open new avenues to
solve some of the problems that are the consequence of the currently insufficient approach to
gender equality under European Community law. It is argued that the approach of CEDAW
should be applied in both interpreting existing EC law and in making new law. In
interpreting existing EC sex equality law, the Convention’s role as a source of inspiration
must be taken much more seriously than is currently the case. As for the drafting of new law,
it is true that the EC itself is not a signatory to CEDAW and, therefore, not bound by the
Convention in a strict legal sense. However, the Member States are signatories. As such, they
are under an obligation to take the Convention seriously, an obligation that also relates to the
making of EU and EC Treaty law that, in turn, provides the framework for the adoption of
secondary EC law.
§1. INTRODUCTION
From the very start, equality and non-discrimination have been central objectives of the
policies of what was then the European Economic Community. However, the relevant
law was mainly instrumental with respect to the Community’s economic goals, both in
the context of free movement (prohibition of discrimination on grounds of nationality)
and in social law (prohibition of discrimination on grounds of sex). Indeed, European
12 MJ 4 (2005) 399
* We wish to thank our colleagues in the equality unit of the research project ‘The Protection of
Fundamental Rights in an Integrating Europe’ of the Faculty of Law, Leiden University, as well as
Professor Tamara Hervey, University of Nottingham, for their comments on earlier drafts of this paper.
400 12 MJ 4 (2005)
Community sex equality law started out as a matter of economic equality,
1
though later
the Court of Justice lifted what was then Art. 119 of the EEC Treaty (now, after
amendment, Art. 141 EC) on equal pay for men and women up to the level of a general
principle of Community law (Defrenne III).
2
Today, respect for human rights is explicitly
recognized in Art. 6 EU and at the level of soft law in the European Union Charter of
Fundamental Rights.
3
Nevertheless, EU social policy – of which EC sex equality
legislation is a part – has long remained heavily market-oriented in its scope, in its
approach and in its function in the EU legal order.
4
As has been pointed out by Fredman,
5
a shift from this economic or market-oriented
approach to a human rights approach includes a shift from formal to substantive equality
and from a reactive to a proactive approach to combating discrimination. This
contribution aims to examine one possible avenue towards such a human rights
approach in the field of gender equality in the European Union, namely the approach
prescribed by the United Nations Convention on the Elimination of All Forms of
Discrimination against Women (henceforth: CEDAW). So far this Convention has
played only a small role in the academic and political discourse about the construction of
EC anti-discrimination legislation.
6
It would seem to the present writers that CEDAW’s
full potential to advance the case of equality for women has not yet been realized in the
European Union.
7
It must certainly be recognised that EC sex equality law has had
considerable impact on the possibilities for European women to gain access to the labour
market and to secure equal treatment in relation to pay, working conditions and work-
related social security rights. However, the fact remains that in some respects the results
have been very disappointing.
Rikki Holtmaat and Christa Tobler
1
The right to equal pay, as laid down in Article 119 of the EEC Treaty, was born from a fear harboured by
the French government that France would not be able to compete on an equal footing with other
Member States as long as France was the only Member State that had equal pay legislation; see L.
Imbrechts, ‘L’e
´galite
´de re
´mune
´ration entre hommes et femmes’, 22 Revue trimestrielle de droit europe
´en
231 (1986); C. Barnard, ‘The economic objectives of Article 119’, in T. Hervey & D. O’Keeffe (eds.), Sex
Equality Law in the European Union (Wiley, 1996), 320; also C. Hoskyns, Integrating Gender. Women, law
and politics in the European Union (Verso, 1996).
2
rights is one of the principles of Community Law’. It added: ‘There can be no doubt that the elimination
of discrimination based on sex forms part of those fundamental rights.’
3
OJ 2000 C 364/01. In the framework of the EU Constitutional Treaty, the Charter would be binding law
(part II of the Treaty establishing a Constitution for Europe, OJ 2004 C 310).
4
See M. Bell, Anti-Discrimination Law and the European Union (Oxford University Press, 2002), Chapter 1
(European Social Policy: Between Market Integration and Social Citizenship); also J. Shaw (ed.), Social
Law and Policy in an evolving European Union (Hart Publishing, 2000).
5
See Fredman’s contribution to this issue.
6
See J. Swiebel, ‘What could the European Union learn from the CEDAW Convention?’, in I. Boerefijn et
al. (eds.), 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 (Intersentia, 2003), 51.
7
One could say that either the glass is half full or half empty, as Hervey expressed herself at the Conference
held in The Hague in November 2004; see her introduction to this issue.
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