The Constitutionalization of Equality within the EU Legal Order
| Author | Colm O'Cinneide |
| Date | 01 June 2015 |
| Published date | 01 June 2015 |
| DOI | 10.1177/1023263X1502200304 |
| Subject Matter | Article |
370 22 MJ 3 (2015)
THE CONSTITUTIONALIZATION OF
EQUALITY WITHIN THE EU LEGAL ORDER
Sexual Orientation as a Testing Ground
C O’C*
ABSTRACT
e principle of equal treatment ha s become constitutionalized within the f ramework of the
EU legal order. However, its scope and substance remain uncertain, its impact is con ned
to the restricted horizon s of EU law, and its normative foundations are contested. is
article explores these issues by focusing on a number of judgments by the Court of Justice
of the European Union (CJEU) in cases involving claims of discrimination based on the
ground of sexual orientation. ese judgments illust rate both the positive impact and also
the uncertain scope and substance of the princ iple of equal treatment as constitutionalized
within EU law. It concludes by highlighting the need for the CJEU’s equalit y jurisprudence
to engage to a greater degree with human dignit y and other values, in order to give greater
de nition and clarity to the conce pt of equal treatment.
Keywords: discr imination; equal treatment; sexua l orientation
§1. IN T RODUC T IO N
e principle of equal treatment has become constitutionaliz ed within t he framework
of the European Union (EU) legal order. is has given great potency to t he individual
right to non-discrimi nation, respect for which has become a fu ndamental value of EU
law. However, the parameters of this constitutionalization process remain unclear, as a
result of the uncerta in scope of the principle of equal treatment, the contested borders of
EU competency in this rega rd, and the ambiguity inherent in the idea of equality itself.
* Professor of Law, UCL.
e Constitutiona lization of Equal ity within the E U Legal Order
22 MJ 3 (2015) 371
As a result, this a rea of law is characterized by a degree of normative uncerta inty, which
limits its e ectiveness as a tool of social change.
is pap er explor es thes e issue s by focu sing in parti cular on a numbe r of cas es by the
Court of Justice of the Europea n Union (CJEU) involving claims of discrimi nation based
on the ground of sexual or ientation, which illustrate the scope and lim its of the process
of constitutionaliz ing equality w ithin the f ramework of EU law. Section 2 outlines the
development of EU equality law and the man ner in which the principle of equal treat ment
has become a fundamenta l norm of the EU legal order. Section 3 describes the uncer tain
scope and content of this norm, and the const raints this i mposes on its transformative
potential.Finally, Section 4 ana lyses the key judgments of the CJEU relat ing to sexual
orientation. is includes recent decisions of the CJEU relating to Member State bans
on gay and bisexual men donati ng blood (Léger)1 and the handling of asylum claims
made on the basis of a persecution risk relat ing to sexual orientat ion (X & Y and A, B
& C).2 It uses this case law to illust rate both the positive impact a nd the limited reach
of the principle of equal treatment as constitutionalized within EU law. It concludes by
highlighti ng the need for the CJEU’s equality jurisprudence to enga ge to a greater degree
with human dig nity and other values, to esh out the uncertain contours of the pr inciple
of equal treatment.
§2. THE CONSTITUTIONALIZATION OF EQUALITY
WITHIN EU LAW
A. THE EMERGENCE AND EVOLUTION OF EU EQUALITY LAW
As is common knowledge, the development of EU equality law began in the eld of
equal pay, with the provisions of the orig inal Art icle119 of the Treaty of Rome, now
Article157(1) TFEU, requiring Member St ates to give e ect to the principle of equal pay
for male and female workers for work of equal value. e Court subsequently ruled i n
Defrenne v. Sabena (No. 2)3 that this principle was capable of having horizontal d irect
e ect in t he context of horizontal relationships between private partie s. is opened the
way for an impressive edi ce of gender equality law to be constructed on these initial,
limited foundations. Subsequent Treaty amendments have given t he EU institutions the
authority to adopt measures g iving e ect to the ‘principle of equal oppor tunities and
equal treatment of men and women’.4 e gender equalit y directives adopted on this
1 Case C-528/13 Léger v. Ministre des A aires sociales, d e la Santé et des Droits d es femmes, Établis sement
français du sang, EU:C:2015:288.
EU:C:2013:720; Joined Cases C -148/13, C-149/13 and C-150/13 A, B and C v. Staatssecre taris van
Veil igh eid en Ju sti tie , EU:C:2014:2406.
3 Case C-43/75 De frenne v. Sabena (No. 2). EU:C:1976:5 6.
4 See Articl es19 and 157(3) TFEU.
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