Constitutionalising Equality in the European Union: A Children's Rights Perspective
| Published date | 01 December 2005 |
| Date | 01 December 2005 |
| DOI | 10.1177/135822910500800204 |
| Author | Helen Stalford |
International Journal
of
Discrimination and the Law, 2005, Vol.
8,
pp. 53-73
1358-2291/2005 $10
© 2005 A B Academic Publishers. Printed in Great Britain
CONSTITUTIONALISING EQUALITY IN THE EUROPEAN
UNION: A CHILDREN'S RIGHTS PERSPECTIVE
HELEN
ST ALFORD*
University
of
Liverpool, UK
ABSTRACT
The
concept
of
equality has been central
to
the development
of
the
European
Union
social
agenda
to
such
an
extent
that
it is
now
universally acknowledged
as a constitutionally-embedded
norm.
This
paper
discusses
how
equality has
driven
important
legislative, judicial
and
institutional change in the
EU,
particu-
larly for women,
and
how
the success
of
the gender campaign
has
inspired
important
changes in respect
of
other
marginalised groups.
The
paper
focuses,
in particular,
on
how
the concept
of
equality offers
an
appropriate,
meaningful
and
effective basis
on
which to enhance the status
of
children in the
EU.
Following a formal analysis
of
how
children fit within the equality/non-
discrimination
paradigm
at
EU
constitutional level, the
paper
moves
on
to discuss
more
critically
how
these provisions are transposed
into
tangible entitlement for
this category
of
citizens.
It
explores mainstreaming as a potential mechanism for
achieving substantive equality for children, again alluding to the successes
of
the
gender
campaign
in this respect.
The
paper
concludes
by
speculating
on
how a
mainstreaming strategy might be
adapted
and
applied in favour
of
children
and
discusses the advancements
that
have already been
made
in this regard.
INTRODUCTION
The
principle
of
equality
is
an
important
dynamic
shaping
EU
law
and
policy-making.
At
its
most
basic level,
equality
underpins
the
concept
of
EU
citizenship formalised
by
Article 17
EC,
which
ensures
that
all
nationals
of
the
Member
States will be
considered
as
equal
citizens
of
the
Union.
This
has
been
interpreted
in
conjunction
with
Article
18
EC
(which
provides
a general
right
of
free
movement
to
and
residence
in
other
Member
States)
and
Article 12
EC
(which
prohibits
discrimina-
tion
on
grounds
of
nationality)
to
enable
de
facto
EU
citizens
to
claim
free
movement
entitlement
regardless
of
their
economic
status.1
The
concept
of
equality
has
been
developed
and
applied
most
extensively,
however,
in
the
context
of
women
in
employment
and
has
taken
the
form
of
both
non-discrimination
and
positive
equality
measures
in
order
to
accommodate
the
specific
situation
of
women
in
the
European
Union.
2 Article
141
EC
(formerly 119
EC),
in
particular,
concerning
54
equal
pay
for
equal
work
has
provided
the
basis
for
a far-reaching
judicial
3
and
legal
construct
of
gender
equality.4
The
extension
of
Article
141
EC
by
the
Treaty
of
Amsterdam
to
include a
formal
right
to
equal
pay
for
work
of
equal
value,5
and
the
implementation
of
a general
duty
to
'promote
equality
between
men
and
women'
in
all
EC
policy activities (Article 3(2)
EC)
have
served
to
entrench
the
principle
of
gender
equality
firmly
within
the
constitutional
fabric
of
the
EU.
The
ongoing
success
of
this
campaign
over
the
past
thirty
years
has
paved
the
way
for
a
more
ambitious
conceptualisation
of
the
equality
principle
in
areas
other
than
gender
and
nationality.
The
most
notable
articulation
of
this
development
is
provided
by
the
Treaty
of
Amsterdam
which
extended
the
prohibition
against
discri-
mination
to
grounds
of
racial
or
ethnic
origin, religion, belief, age,
disability
and
sexual
orientation
(Article 13).
This
provision
represents
an
important
milestone
in
the
drive
for
equality
within
the
EU,
as
evidenced
in
the
important
legislative
measures
already
generated
by
it.
These
include
the
Employment
Framework
Directive6
and
the
Race
Directive,
7
as
well as a
programme
of
action
to
implement
EU
measures
to
combat
discrimination.
8
More
recent
proposals
have
been
submitted
also
by
disabled
rights
advocates
for
a directive imple-
menting
the
principle
of
equal
treatment
for
persons
with
disabilities.9
Interestingly, these
measures
adopt
a distinctly rights-based rhetoric,
thereby
cementing
the
correlation
between
equality,
non-discrimina-
tion
and
fundamental
human
rights.
While
a
broader
definition
of
discrimination,
as
a
model
of
equality,
is
to
be
applauded,
there
has
been
comparatively
little dis-
cussion,
at
either
policy
or
academic
level,
of
the
implications
of
age
as
a
ground
for
discrimination,
in
spite
of
its
formal
articulation
in
Article
13.
While
the
employment
framework
directive
contains
some
provision
relating
to
age-discrimination
in
the
context
of
retire-
ment,
there
has
been
no
attempt
to
apply
the
equality
paradigm
to
those
at
the
other
end
of
the
age
spectrum.
Consequently,
while
developments
in
the
European
social
policy
arena
may
have
assuaged
concerns
as
to
the
gender-neutrality
of
EU
law
and
policy (Lister,
2003;
Leon
et
a/., 2003),
there
is little evidence
of
any
comparable
attempt
to
address
the
age-neutrality
of
such
measures
or
their
specific
impact
on
children.
There
are
a
number
of
explanations
for
this
omission.
Firstly,
children
have
never
been
regarded
as
a
policy
priority
at
EU
level,
principally
because
of
their
perceived
economic
inactivity.
As
Pringle
observes,
'Put
simply,
children
are
not
[generally]
workers
and
are
themselves
not
a
primary
focus
for
European
Union
attention'
(Pringle, 1998: 134). Secondly,
up
until
recently,
the
absence
of
any
direct
reference
to
children
in
any
of
the
treaties
supported
claims
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