EU equality law after a decade of austerity
| DOI | 10.1177/1358229118799234 |
| Date | 01 June 2018 |
| Published date | 01 June 2018 |
| Author | Ania Zbyszewska,Sara Benedi Lahuerta |
| Subject Matter | Articles |
Article
EU equality law after
a decade of austerity:
On the Social Pillar
and its transformative
potential
Sara Benedi Lahuerta
1
and Ania Zbyszewska
2
Abstract
This article discusses the evolution of European Union (EU) legislation and policymaking
methods during the 10 years since the onset of the financial and economic crisis in 2007/
2008. In the EU, this period has been characterized by politics of stimulus, austerity, and
recovery. Against the backdrop of longer term developments in equality law, we con-
sider how the crisis context influenced this field’s evolution. Through the analysis of a
range of legislative and policy proposals, we show that the progressive softening or
hybridization of equality law over this period has gone hand in hand with the stronger
articulation of equality objectives in terms of a “business case.” While this approach
appears to have enabled the proliferation of policy and legal instruments and expanded
the reach of equality law into areas where the EU has limited competence to legislate, it
has also elevated instrumental economic goals for action at expense of human rights or
social rationales. This longer term tendency is also present in the recently adopted
European Pillar of Social Rights, and the accompanying policy documentation, which have
been hailed as carrying potential to infuse more coherence and to rebalance the social
and economic rationales that the EU integration project has unevenly promoted over the
years. Mindful that it is still too early for conclusive judgments, we suggest, however, that
the transformative possibilities the Pillar carries are likely to be undermined by its soft
and economically oriented thrust.
1
Law School, University of Southampton, Southampton, UK
2
Law School, University of Warwick, Coventry, UK
Corresponding author:
Sara Benedi Lahuerta, University of Southampton Law School, University Rd, Southampton SO17
1TR, UK.
Email: s.benedi-lahuerta@soton.ac.uk
International Journalof
Discrimination and theLaw
2018, Vol. 18(2-3) 163–192
ªThe Author(s) 2018
Article reuse guidelines:
sagepub.com/journals-permissions
DOI: 10.1177/1358229118799234
journals.sagepub.com/home/jdi
Keywords
EU equality law, coherence, Social Pillar, soft law, hybrid regulation, marketization,
human rights
Introduction
On launching the European Pillar of Social Rights (“the Pillar”) (Commission, 2017b) at
the Social Summit for Fair Jobs and Growth in Gothenburg in November 2017, the
European Commission President, Jean-Claude Juncker, remarked that the Pillar is not
simply “a poem” but rather “a programme of principles first, a programme of action
next” (Commission, 2017f). The Pillar notably arrives as Europe recovers from one of
the most acute financial and economic crises in decades, which have increased inequal-
ities between member states (MS) and between citizens, left more Europeans at the risk
of poverty and social exclusion (Commission, 2016e), and contributed to the rise of
populism and Euroskepticism. As such, the Pillar’s adoption appears to signal recogni-
tion that halting a race to the bottom in social standards and fulfilling the promise of a
fairer, more equal, Europe requires prompt action to rebalance the European Union’s
(EU) social and market dimensions.
In this article we consider whether the Pillar indeed carries such a potential. Given the
Commission’s assertion that the Pillar expands the application of the equal treatment and
non-discrimination principles beyond their current scope (Commission, 2017b, pp. 12,
15, 65), our focus is specifically on its contribution to the field of EU equality law.
1
In
particular, we consider the potential of the Pillar to make this policymaking area more
robust, coherent,
2
and transformative (see also Busby, 2018).
Rather than considering the Pillar in isolation, we locate it in the context of longer
term trends in the EU social and equality law and policy, with attention placed primarily
on measures proposed over the last decade (2008–2018). This period saw the emergence
of a “new generation of equality law,” which embraces softer legal modes resulting in
hybrid regulation. Theoretically, such hybridity might open the scope of possibilities for
expanding the reach of equality law beyond the current EU competences. As such, this
new approach could contribute to build a more coherent legal framework, which better
articulates equality law with other pertinent policy fields that are necessary for the
achievement of equality in practice. However, the extent to which it has been possible
to promote substantive and transformative equality through such soft and hybrid mea-
sures remains an important question, especially in a climate of austerity and following
the post-2008 erosion of national social models. As we show in this article, the economic
and political fallout of the crisis itself and of the EU-led response, combined with the
European Commission’s promotion of the “Better Regulation” approach,
3
have contrib-
uted not only to a progressive softening of equality law but also to a significant shift in
the framing of recently proposed equality measures. Namely, a shift away from the
discourse of fundamental human rights to that reasserting the market-enhancing and
business case for equality. Against this background, we consider whether the Pillar might
be successful in re-centering the social and, in relation to equality law, in promoting a
transformative conception of equality beyond market-making rationales.
164 International Journal of Discrimination and the Law 18(2-3)
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