Ec Law's Unequal Treatment of the Family: the Case Law of the European Court of Justice On Rules Prohibiting Discrimination On Grounds of Sex and Nationality
| Date | 01 June 1994 |
| DOI | 10.1177/096466399400300203 |
| Author | Kirsten Scheiwe |
| Published date | 01 June 1994 |
| Subject Matter | Articles |
EC
LAW’S
UNEQUAL
TREATMENT
OF
THE FAMILY:
THE
CASE
LAW
OF
THE
EUROPEAN
COURT
OF
JUSTICE
ON RULES
PROHIBITING
DISCRIMINATION
ON
GROUNDS
OF
SEX AND
NATIONALITY
KIRSTEN
SCHEIWE
University
of Mannheim
&dquo;
I
~
<
,
INTRODUCTION
~
,
T
IS
commonplace
that
EC
law
is ’market’ law,
designed
with
the
purpose
of
promoting
the
cross-border
functioning
of
market
operations
within
the
European
Community.
The
policy
of
equal
treatment
of
men
and
women
in
the
fields
of
employment
and
social
security
at
the
EC
level
originated
within
this
framework,
and
is
clearly
affected
by
the
limits
set
by
this
’market-only’
approach.
Feminist
scholars
and
others
have
criticized
the
inherent
limitations
of
the
market-only
approach
because
it
ignores
the
paramount
importance
of
women’s
work
outside
the
market
economy,
the
whole
range
of
caring
activities
and
unpaid
work
in
private
households
and
the
community
(for
example,
see
Olsen,
1983;
Dahl,
1987;
Petersen,
1989;
Lacey,
1987;
Willekens,
1991).
SOCIAL
&
LEGAL
STUDIES
(SAGE,
London,
Thousand
Oaks
and
New
Delhi),
Vol.
3
(1994), 243-265
243
244
Feminist
critics
have
brought
to
light
the
existence
of
women’s
hidden
work
and
the
interactions
between
the
global
and
the
household
division
of
labour.
This
body
of
work
exposes
the
many
shortcomings
of
an
’equal
treatment’
approach
which
focuses
on
gender
equality
only
in
the
employment
sphere.
Formal
equality
is
oriented
towards
a
’male
standard’
of
work.
The
(male)
individual
constructed
as
an
employee
(or
citizen)
is
autonomous,
independent,
does
not
need
to
be
cared
for
and
is
without
bonds
to
others.
The
legal
concept
of
formal
equality
is
blind
towards
substantial
inequalities
and
to
the
structural
causes
reproducing
these
inequalities.
My
argument
builds
upon
the
valuable
insights
advanced
by
feminist
legal
scholars.
I
want
to
take
their
arguments
one
step
further
and
relativize
law’s
own
claim
of
the
autonomy
and
independence
of the
(male)
employee.
This
paper
will
look
at
the
incoherences
and
gender
aspects
of
the
relationships
between
employment
and
the
family
within
EC
law.
My
argument
is
that
one
should
not
take
law’s
own
ideology
of
separated
spheres
too
seriously.
One
should
take
a
closer
look
at
law’s
internal
inconsistencies
and
contradictions
to
deconstruct
certain
gender
ideologies
underlying
law.
Here
I
mean
in
particular
labour-law’s
imagery
of
the
standard
(male)
employee
as
an
independent,
autonomous
individual
free
from
family
and
other
obligations
that
bind
him
to
partners
and
children.
I
will
also
refer
to
law’s
ideology
of
a
clear-cut
separation
between
the
market and
the
family,
of
the
so-called
public/private
split
which
is
mirrored
in
the
boundaries
drawn
between
legal
subsystems
such
as
labour
law,
social-
security
law and
family
law.
I
am
arguing
that
there
are
good
reasons
to
doubt
that
these
border
lines
are
as
clear-cut,
and
that
spheres
are
as
neatly
separated,
as
law’s
claims
would
have
us
believe.
Instead,
the
family
obligations
of
an
employee
constructed
on
the
basis
of
male
life
contingencies
are
privileged
in
comparison
to
the
family
ties
of
persons
who
lack ’market
connections’.
In
this
article,
I
will
present
EC
law
as
it
deals
with
the
family
in
two
different
contexts:
the
family
of
migrant
workers
in
the
context
of
social
security
regulation,
and
the
family
nexus
in
the
context
of
the
directives
on
equal
treatment
of
men
and
women
(where
it
is
widely
disregarded
or
even
explicitly
excluded).
My
aim
is
to
show
that
the
family
has
been
taken
into
account
in
national
laws
as
part
of
the
(male)
employee’s
status,
social
situation
and
supply
conditions.
This
leads
to
differentiated
entitlements
based
on
family
status
in
national
labour
law
and
social-security
law,
which
is
mirrored
in
EC
norms
relating
to
migrant
workers,
whose
purpose
is
to
grant
these
workers
the
same
access
to
family
benefits
as
national
employees.
The
European
Court
of
Justice
(ECJ)
has
consistently
declared
that
disadvantages
faced
by
a
migrant
worker’s
family
vis-a-vis
a
national
worker’s
family
could
act
as
an
obstacle
to
mobility.
This
is
indeed
a
strong
claim,
and
one
that
sociologists
might
question
on
empirical
grounds.
In
the
field
of
migrant
workers’
social-security
claims,
EC
law
has
developed
an
impressive
body
of
case
law
related
to
family
benefits
and
has
created
entitlements
even
for
family
members
of
the
migrant
themselves,
extending
claims
far
beyond
employment-related
benefits
into
the
area
of
education
and
family
allowances
in
general.
This
has
indeed
provoked
protests
from
Member
To continue reading
Request your trial