The Amended Equal Treatment Directive (2002/73): An Expression of Constitutional Principles / Fundamental Rights
| Author | Sophia Koukoulis-Spiliotopoulos |
| Date | 01 December 2005 |
| Published date | 01 December 2005 |
| DOI | 10.1177/1023263X0501200402 |
| Subject Matter | Article |
THE AMENDED EQUAL TREATMENT DIRECTIVE
(2002/73): AN EXPRESSION OF CONSTITUTIONAL
PRINCIPLES / FUNDAMENTAL RIGHTS
SOPHIA KOUKOULIS-SPILIOTOPOULOS*
[...] the Community [...] is not merely an economic union but is at the same time
intended, by common action, to ensure social progress and seek constant improvement of
the living and working conditions of the peoples of Europe. The economic aim pursued by
Article 119 [EC], [...] is secondary to the social aim pursued by the same provision, which
constitutes the expression of a fundamental human right.
1
[...] respect of fundamental rights is a condition of the legality of Community acts.
2
[...] national rules (or situations) [which] fall within the scope of Community law [must
be] compatible with fundamental rights.
3
ABSTRACT
This paper recalls the constitutional framework within which Directive 2002/73 was adopted,
and attempts a first evaluation of some of its ‘new’ provisions in light of this framework. This
12 MJ 4 (2005) 327
* Attorney at law; member of the Commission’s gender equality legal network; past vice-president,
member of the board of the European Women Lawyers Association (EWLA); vice-president of the
Association of Women of Southern Europe (AFEM). This paper draws on S. Koukoulis-Spiliotopoulos,
From Formal to Substantive Gender Equality: The Proposed Amendments of Directive 76/207. Comments
and Suggestions. Marangopoulos Foundation for Human Rights (Sakkoulas/ Bruylant, 2001), and on S.
Koukoulis-Spiliotopoulos,‘Incorporating the Charter into the Constitutional Treaty: What Future for
Fundamental Rights?’, in Proble
`mes d’Interpre
´tation, a
`la Me
´moire de C. N. Kakouris (Sakkoulas/
Bruylant, 2004), 223.
1
Joined Cases C-270/97 and C-271/97 Deutsche Post AG v. Sievers [2000] ECR I-933, paras. 55, 57; C-50/
96 Deutsche Post AG v. Schro
¨der [2000] ECR I-774, paras. 55, 57.
2
Opinion 2/94 [1996] ECR I-1759, para. 34; C-25/02 Rinke v. A
¨rztekammer Hamburg [2003] ECR I-8349,
paras. 25-28 (review of the legality of directives 86/457/EEC (training in general medical practice) and
93/16/EEC (free movement of doctors) in light of the gender equality principle).
3
C-94/00 Roquette Fre
`res v. Directeur ge
´ne
´ral de la concurrence, de la consommation et de la re
´pression de
fraudes [2002] ECR I-9001, para. 25. C-274/96 H.O. Bickel & U. Franz [1998] ECR I-7637, para. 14.
328 12 MJ 4 (2005)
illuminates a brief discussion of the proposal for a Recast Directive, which aims to ‘simplify,
modernize and improve’ gender equality EC law by putting together three gender equality
directives, including Directive 2002/73, and which should, therefore, incorporate the whole
relevant legislative and jurisprudential acquis.
Gender equality enjoys a privileged status under the Treaties. It is an EC ‘task’ and ‘aim’
to ‘eliminate inequalities’ and ‘promote’ gender equality in all fields. This ‘positive
obligation’ is also incumbent on the EU, since (substantive) gender equality, as a
fundamental right, is its cornerstone, and on Member States, via their duty of ‘loyal
cooperation’. Gender equality – which is also a strategic Lisbon goal – is thus an essential
element of European identity.
Directive 2002/73 is an expression of the constitutional principle of gender equality and
other constitutional principles, such as those of the protection of family life and effective
judicial protection. Its provisions on positive action and maternity/paternity rights, far from
constituting derogations from gender equality, are necessary means for its substantive
achievement. Therefore, this Directive – like the Recast Directive, once it is adopted – must be
construed in a wide, teleological way, so that it can be an effective tool for the substantive
implementation of these principles/fundamental rights and contribute to safeguarding and
enhancing the human face of Europe.
INTRODUCTORY REMARKS
4
is a fundamental rights instrument and has proved to be a catalyst for
significant national and European developments. It brought about noticeable improve-
ments in national legislation and practice, and contributed to the evolution of social
attitudes. It led to further gender equality Directives
5
, and served to highlight the gender
equality objective of others.
6
It gave the ECJ the occasion to develop general principles/
fundamental rights, such as the principle of effective judicial protection. It also inspired
Sophia Koukoulis-Spiliotopoulos
4
Directive 76/207/EEC on the implementation of the principle of equal treatment for men and women as
regards access to employment, vocational training and promotion, and working conditions, [1976] O.J.
L39/40.
5
The social security gender equality directives (see Preamble and Art. 1(2) of Directive 76/207): Directive
79/7 on the progressive implementation of the principle of equal treatment for men and women in
matters of social security, [1979] O.J. L6/24, and Directive 86/378 on the implementation of the principle
of equal treatment for men and women in occupational social security schemes, [1986] O.J. L225/40,
amended by Directive 96/97 [1996] L46/24, as well as Directive 86/613 on the application of the principle
of equal treatment of men and women engaged in an activity in a self-employed capacity, [1986] O.J.
L359/56, Directive 97/80 on the burden of proof in cases of discrimination based on sex, [1997] O.J. L14/
6, and Directive 2004/113 implementing the principle of equal treatment between men and women in
the access to and supply of goods and services, [2004] O.J. L373/37.
6
Directive 92/85 on the introduction of measures to encourage improvements in the safety and health at
work of pregnant workers and workers who have recently given birth or are breastfeeding, [1992] O.J.
L348/1; Directive 96/34 on the framework agreement on parental leave, [1996] O.J. L145/4.
the ‘anti-discrimination directives’.
7
Its impact is due in large part to its broad,
teleological and evolutionary interpretation by the ECJ, and to the European
Commission’s relentless efforts to monitor and promote its implementation.
However, twenty five years after its adoption, it became obvious that Directive 76/207
needed updating; it was thus amended by Directive 2002/73.
8
Meanwhile, the Treaties,
‘the Constitutional Charter of a Community [Union] based on the rule of law’
9
, were
enriched with ‘horizontal’ rules, inspired from ECJ case-law, guaranteeing fundamental
rights and gender equality as an integral part thereof: in particular, Art. 6(1) and (2) EU
and Arts. 2 and 3(2) EC. It is against this background that Directive 2002/73 was adopted.
Directive 2002/73 should have been transposed by 5 October 2005 (Art. 2). However,
it became legally binding on the date of its publication (5 October 2002)
10
, in that it
obligates Member States to refrain from any measure liable to compromise the
achievement of the result it prescribes. Thus, the duty of national courts to interpret their
legislation in conformity with this Directive took effect on that date.
11
In any case, most
of its ‘new’ provisions embody rules already in force: they reflect ECJ case-law
12
and
general principles/ fundamental rights, in whose light they shall be read and their legality
shall be reviewed.
After recalling the constitutional framework within which Directive 2002/73 was
adopted, this article will attempt a first evaluation of some ‘new’ provisions in light of this
framework. This will illuminate a brief discussion of the Proposal for a Recast Directive,
13
the objective of which is ‘to simplify, modernize and improve Community law in the area
of equal treatment between men and women by putting together in a single text
Directives linked by their subject’,
14
including Directive 2002/73.
The Amended Equal Treatment Directive (2002/73): An Expression of
Constitutional Principles / Fundamental Rights
12 MJ 4 (2005) 329
7
The first directives adopted on the basis of Art. 13 EC were Directive 2000/43 implementing the principle of
equal treatment between persons irrespective of racial or ethnic origin, [2000] O.J. L180/22, and Directive
2000/78 establishing a general framework for equal treatment in employment and occupation, [2000] O.J.
L303/16.See D. Schiek, ‘A new Framework on Equal Treatment of Persons in EC law?’ 8 Eur. L. J. 290 (2002).
8
Directive 2002/73/EC of the European Parliament and the Council amending Directive 76/207, [2002]
O.J. L269/15.
9
Case 294/83 Les Verts v. Parliament [1986] ECR 1339, para. 23; Opinion 1/91 [1991] ECR I-6079, para.
21; the expression ‘Constitutional Charter of a Community based on the rule of law’ had been already
used by A.G. M. Darmon in relation to the right to effective judicial protection (Opinion in Case 222/84
M. Johnston v. The Chief Constable of the Royal Ulster Constabulary [1986] ECR 1654, para. 3).
10
Date of its publication in the O.J. (Art. 3 of Directive 2002/73).
11
Cases C-129/96 Inter-Environnement Wallonie v. Re
´gion wallone [1997] ECR I-7411, paras. 40-41; C-80/
86 Kolpinghuis Nijmegen [1987] ECR 3969, para. 15; AG J. Kokott, in Case C-313/02 Wippel v. Peek &
Cloppenburg GmBH, paras. 57-63. The possibility to invoke the directive to this effect is termed
‘invocability of prevention’ (‘invocabilite
´de pre
´vention’) by D. Simon, Le syste
`me juridique
communautaire, (PUF, 2001), 442.
12
This case-law is often referred to in the Preamble to Directive 2002/73.
13
Proposal for a Directive of the European Parliament and the Council on the implementation of the
principle of equal opportunities and equal treatment of men and women in matters of employment and
occupation (recast version) COM(2004) 279 final/ 21.04.2004.
14
Explanatory Memorandum to the above proposal, chapter 1, General Considerations.
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