Indirect Discrimination Law in the EC; Appearance Rather than Reality?
| Published date | 01 December 1996 |
| DOI | 10.1177/135822919600200206 |
| Date | 01 December 1996 |
| Author | Martin Hedemann-Robinson |
International
Journal
of
Discrimination
and
the
Law,
1996,
Vol.
2,
pp.
85-117
1358-2291/96
$10
©
1996
A B
Academic
Publishers. Printed in Great Britain
INDIRECT
DISCRIMINATION
LAW
IN
THE
EC;
APPEARANCE
RATHER
THAN
REALITY?
MARTIN
HEDEMANN-ROBINSON
1
Brunei University, UK
ABSTRACT
It
would not be an overstatement to suggest that the principle
of
equality consti-
tutes a cornerstone
of
European Community Law. The prohibition of discrimination
on the basis
of
nationality, enshrined in Article 6
of
the EC Treaty, is a theme that
runs through Community Law.
It
has been central to the realization of Single
Market dream, in eliminating inter-state barriers to develop greater free movement
of the four key factors of production, namely goods, persons, services and capital
within the Union. The European Court
of
Justice (ECJ) has even developed a gen-
eral unwritten principle of equality, binding on all Community legislative action.
However, beneath this appearance
of
uniformity of approach there lies, paradoxic-
ally, a marked difference in relation to the prohibition
of
hidden forms
of
unequal
treatment (or indirect discrimination) in EC Law. Here, the ECJ has been unable
to sustain the unifying quality
of
the equality principle.
It
has singularly failed to
establish a comprehensive legal test relating
to
the concept of indirect discrimina-
tion. Instead, the case law has diverged considerably, the ECJ apparently willing to
develop principles on a sectoral
as
opposed
to
a generic basis. This paper aims to
analyse and expose the inconsistency
of
treatment by the ECJ in its appraisal
of
indirect discrimination in relation to the following key economic sectors: free
movement of goods, services and workers and gender equality in employment.
Behind the presentation
of
uniformity of approach, the ECJ has established subtle
but significant legal distinctions which have had profound economic consequences
for litigants and markets alike. Such a state of affairs raises serious questions about
the universality and impartiality
of
the application
of
the principle of equality in
the European Community Law context, not least because hidden
as
opposed to
more express forms
of
discrimination tend now
to
take on a more prevalent and
significant role in the Single Market.
The time is ripe for a comprehensive review
of
the prohibitions
of
indirect discrimination under EC Law. It is evident from the develop-
ment
of
the case law that there are fundamental inconsistencies and
contradictions in the European Court
of
Justice's (ECJ) approach
from at least two perspectives. First, the ECJ has, underneath the
veneer
of
generalization, failed to establish a clear and workable set
of
rules regarding the scope and application
of
the individual indirect
discrimination prohibitions contained in the Treaty
of
Rome provi-
86
sions and EC secondary legislation. Second, and more important,
there is the need to examine whether there should be a comprehens-
ive judicial test
of
indirect discrimination in EC Law instead
of
the
present diversity
of
analysis in the case law. The issue here is
whether it is feasible or desirable to strive for harmonization
of
indir-
ect discrimination prohibitions in EC Law. This article aims to begin
to address these issues. It will provide an overview
of
the lack
of
coherence in the case law by referring to three key sectors
of
EC
Law which incorporate prohibitions
of
indirect discrimination, namely
the sex discrimination, free movement
of
persons and free movement
of
goods sectors. In addition, a comparative assessment
of
these sec-
tors will be made with the view to not only exposing the falsity and
insecurity
of
the current facade
of
harmony, but also to initiate
debate as to whether the ECJ should be encouraged to adopt a more
uniform analysis
of
indirectly discriminatory situations and,
if
so, on
what basis.
I. INTRODUCTION
The principle
of
equality
of
Member States in European Com-
munity Law has been rightly described as being one
of
the principal
constitutional foundations
of
the European Community? It crystal-
lizes the fundamental aims and ideals
of
the EC to create a genuine
common market within its territory based on the economic principles
of
the free market and fair competition. For all talk and Treaty texts
cannot bring this about without the underpinning basic philosophy
of
the parity between Member States. The process towards achieving
comprehensive and complete realization
of
single market conditions
cannot be nurtured unless there is a basic and firm commitment
between the members that each
of
them will guarantee unhindered
access onto their respective domestic markets for each others' goods,
persons, services and capital. In aiming for and requiring full lib-
eralization
of
these factors
of
production,3 the EC treaty utilizes the
legal principle
of
equality to ensure their realization. Anti-
discrimination provisions provide the judiciary, at national and EU
level, with the legal tools necessary to realize the core aims and pol-
icies
of
the Community. That the ECJ applies the concept
of
equality
correctly and fairly is therefore
of
crucial concern to all individuals
within the integrated market.
The legal concept
of
equality appears deceptively to be an
impartial and objective method
of
analysing and determining the
occurrence
of
unjust treatment. Its peculiarly strong attraction to the
mind
of
a lawyer lies in its formal and abstract application
of
rules,
seemingly devoid
of
subjective or political content. For instance, the
87
ECJ has defined the general principle
of
non-discrimination in EC
Law to mean that like situations should be treated alike whilst unlike
situations must not be treated alike.4 However, such a definition, and
indeed any abstract definition
of
equality, will be circular rather than
explanatory for the simple reason that the principle
of
equality, in
whatever legal context it finds expression, is a fundamentally subject-
ive assessment
of
justice and injustice.
Ultimately, the principle
of
equality, for all its outward show
of
impartiality, is not a neutral concept. Its interpretation and application
depends ultimately upon the dominant values in society which deter-
mine the situations to be accorded parity
of
treatment in a judicial
context. Two fundamentally subjective and therefore relative assump-
tions or conclusions are made in applying the principle
of
equality.
First, one needs to determine which situations are alike or unlike
before a comparison can be made
as
to their respective treatment.
Perceptions
of
equivalence vary and change according to the social,
moral and economic dynamics
of
the time.5 Second, determining
whether different treatment accorded to like situations may neverthe-
less be justified involves inherently subjective reasoning. Thus, it is
important to recognize that legal equations needed for solving dis-
crimination cases are never likely to be straightforward scientific
exercises.
In EC Law, the concept
of
indirect discrimination has largely
been a judicial than a legislative construct. This is largely because
much
of
written EC Law tends to deal expressly with situations most
commonly associated with forms
of
direct discrimination whilst being
silent on the aspect
of
indirect discrimination. Nevertheless, the ECJ
has consistently recognized and referred to the distinction between
the two legal concepts
of
direct and indirect discrimination. Essen-
tially, direct discrimination exists where a normative measure or
practice expressly treats two similar groups differently, whereby one
group is disadvantaged as a result. Indirect discrimination, on the
other hand, exists where a normative measure or practice, which
although appearing to treat two similar groups equally, actually has
the effect
of
disadvantaging a far greater proportion
of
one group and
cannot be objectively justified.
6 It would appear that the ECJ is only
prepared in principle to consider a defence to directly discriminatory
measures and practices which is expressly provided for in the EC
Treaty or secondary legislation as appropriate. However, as regards
indirect discrimination cases, it has developed an additional unwritten
defence
of
objective justification.
Anti-discrimination law, and EC Law is no exception to this, is
concerned with ensuring that certain social and product groups are
ensured equality
of
treatment with other similarly situated groups.
Specifically, EC Law aims to ensure that certain vulnerable types
of
To continue reading
Request your trial