Discrimination and beyond in European Economic and Social Law
| Author | Gareth Davies |
| Date | 01 March 2011 |
| DOI | 10.1177/1023263X1101800102 |
| Published date | 01 March 2011 |
| Subject Matter | Article |
18 MJ 1–2 (2011) 7
DISCRIMINATION AND BEYOND IN
EUROPEAN ECONOMIC AND SOCIAL LAW
G D*
ABSTRACT
In practice and comments on EU internal market law, the Court and commentators
o en refer to the notion of ‘market access’ as if it is the keystone of the EU integration
process and as if this would go beyond anti-discrimination rules. However, one cannot
go beyond ‘non-discrimination’ without entering the sphere of ‘positive action’. Yet, there
is no legal, political or economic basis for positive action in the internal market context.
A comparison with social law, where discrimination is a more developed concept, shows
that the arguments for positive action are inappropr iate to the economic context and that
what are sometimes described as non-discriminatory rules con stituting a restriction to
free movement in fact usually con stitute indirect discrimination. As for market access,
economic theory tells u s that the only rules that inhibit market access are those that have a
discriminatory component. us anti-discrimination c ontinues to be the essence of market-
making and of market access and talk of ‘going beyond’ it is mere confusion . e goal and
the logic of internal marke t law is substantive equality for all market actors – similarly to
social law, from which it can learn much about the relevant conce pts.
Keywords: discrimination; free movement; internal ma rket; market access; reverse
discrimination
§1. I N TRODUCT ION
Prohibitions on discrimination are the most ubiquitous tool in European law, forming
the foundation of economic and socia l policy. Yet such prohibitions are o en criticized
as being inadequate to achieve the goals of these policies. From economic lawyers
one sometimes hears that it is access to markets that must be ensu red by the law and
* Department of Trans national Legal Stud ies, VU University Amst erdam.
Gareth Davies
8 18 MJ 1–2 (2011)
that discrimination is an insu ciently far-reaching tool to achieve this.1 ey enjoy
considerable implicit support from the Cou rt, which consistently phrases its judgements
in terms of market access, or closely related concepts.2 In the context of social law it is
wi de ly co ns id er ed th at th e u lt i ma te po li cy go al is eq ua l it y3 and t hat, similarly, a repertoire
of measures beyond and beside ant i-discrimination ru les will be needed to achieve th is.4
e criticism in bot h cases is therefore that prohibiting discrim ination is not enough.
However, whereas it is clear that individuals may face ba rriers to advancement other
than discrimination in employment – for example, role models imposed upon them
by their communities a nd by their own self-perception – it is not clear that t his is the
case for economic actors, at least to an extent that would justify or require regulatory
intervention. Whereas indiv iduals make trade-o s b etween careers and other aspects of
their lives, compan ies are more single-mindedly focused on t he pursuit of pro t. It would
be strange to hear of a company that failed to exploit an opportu nity ‘in order to have
more free time’, or ‘because its f riends and family might disapprove’ or because it d idn’t
think it would be accepted by its col league-competitors in that market. If social policy
wishes to prevent the concentration of power and status i n certain groups, then it is not
hard to see that merely prohibiting discrimination in employment and public services
may well not be enough. By contrast, it is not clear t hat going beyond discri mination in
1 Most prominently, Opinion of Advocate General Jacobs in Case C-412/93 Société d’Impo rtation
Edouard Lecle rc-Siplec v. TF1 Publicité SA an d M6 Publicité SA [1995] ECR I-179; Weatherill, ‘A er
Keck: Some thoug hts on how to clarify t he clari cation’, 33 CMLR 5 (1996), p. 887. See for further
discussion Ba rnard, ‘Fitting the rema ining pieces in the goods and p ersons jigsaw’, 26 ELR 1 (2001),
p. 35; Koutrakos, ‘On Groc eries, Alcohol and Olive Oil: More on t he Free Movement of Goods a er
Keck’, 26 ELR 4 (2001), p. 391.
2 See e.g. Case C-55/94 Gebh ard v. Consiglio dell’O rdine degli Avvocati e Procuratori di Mila no [199 5]
[2009] ECR I-519; Case C-142/05 Mickelsson a nd Roos [2009] ECR I-4273. See Wenneras and Mo en,
‘Selling arrangements , keeping Keck’, 35 ELR 3 (2010), p. 387; Spaventa, ‘Leaving Keck beh ind? e free
movement of goods a er the ruli ngs in Commission v. Italy and Mickelsson an d Roos’, 34 ELR 6 (2009),
p. 924; Pecho, ‘Good-Bye Keck: A comment on the remarkable judgement in Commission v. Italy’, 36
LIEI 3, (2009), p. 257; Tryfonidou, ‘Was Keck a half-ba ked solution a er all?’, 34 LIEI 2 (2007), p. 167;
Prete, ‘Of motorcycle t railers and person al watercra s: the ba ttle over Keck’, 35 LIEI 2 (2008), p. 133.
3 Council Direct ive 2000/43/EC of 29 June 200 0 implementing the principle of e qual treatment bet ween
persons irresp ective of racia l or ethnic origi n [2000] OJ 180/22, Council D irective 200 0/78/EC of
27 November 2000 est ablishing a genera l framework or equa l treatment in employ ment and occupation
[2000] OJ L 303/16 and Directive 20 06/54/EC of the European Pa rliament and of the Counci l of 5 July
2006 on the impleme ntation of the principle of equal oppor tunities and equal tre atment of men and
women in matters of employme nt and occupation (recast) [200 6] OJ L 204/23 all contai n positive action
provisions ‘wit h a view to achievi ng full equa lity in prac tice’ (see Article 3, D irective 200 6/54/EC,
Article 7, Directi ve 2000/78/EC, Art icle 5, Directive 200 0/43/EC).
4 See e.g. Communicat ion from the Commis sion, e Communit y Framework Strategy o n Gender
Equality, COM (2000) 334 nal; S. Fredman, Human Rights Transformed: Positive Rights and Positive
Duties (Oxford University Press, O xford, 2008); Commun ication from the Commi ssion, Incorporat ing
equal opport unities for women and men into a ll Community policies an d activities, COM (96) 67 nal.
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