The (IN)Visibility of Gender in the New Regulation
| Author | Vicki Paskalia |
| DOI | 10.1177/138826270500700302 |
| Published date | 01 September 2005 |
| Date | 01 September 2005 |
| Subject Matter | Article |
THE (IN)VISIBILITY OF GENDER IN THE NEW
REGULATION
VICKI PASKALIA*
Abstract
This article looks at the new co-ordination Regulation 883/04 from a gender
perspective. The focus is on the provisions of the Regulation concerning its personal
scope and some of its fundamental principles. The article considers whether these
provisions function satisfactorily with regard to workers (often female) who have
interrupted work because of child-rearing; as well as with regard to former spouses,
who are covered by the Regulation in their capacity as family members of a
Community worker, after the termination of their marriage. The article argues that,
although the Reg. 883/03 provides some improvement with regard to the first category,
namely workers interrupting work because of child-rearing, a great deal remains to be
done. It also notes that no attention at all has been paid to the issue of marriage
dissolution, qnd that this makes the situation of former spouses very uncertain and
vulnerable. Finally, the article argues that the development of a gender dimension
within the framework of the law of co-ordination is necessary in order to adjust the
Regulation to new situations and for the satisfactory protection of a considerable
number of persons, mainly women, who find themselves in situations such as those
above.
1º proef
European Journal of Social Security, Volume 7 (2005), No. 3 197
* Vicki Paskalia is a Lecturer in Law at the University of Stockholm, 106 91 Stockholm, Sweden. E-mail
Vicki.paskalia@socarb.su.se
198 Intersentia
1. INTRODUCTION
Reg. 883/04
1
was introduced as a response to long-standing demands for the
simplification and modernisation of Reg. 1408/71,
2
which, after more than thirty years
in force, numerous amendments and an abundant case law, had become a very
complicated piece of legislation that was difficult to understand and cope with.
Reg. 1408/71, as well as its predecessor Reg. 3/58,
3
was a product of its time. It was
a time of distinct gender roles with a male breadwinner and a female housekeeper,
stable marriage and family relationships, migration flows of low-qualified workers
from Southern Europe to Northern and Western Europe, and family-centred
migration. These assumptions have underpinned the social security law of co-
ordination of the European Community.
The new Regulation, Reg. 883/04, is expected to work in a different context.
Economic, social and family conditions, as well as migration patterns have changed
radically. The question is therefore whether the new Regulation can respond to the
new times and the new challenges. The particular question raised in this article is
whether Reg. 883/04 is able to respond to a major modern challenge - the gender
challenge. This challenge involves labour market considerations, particularly the
increasing number of mainly female employees who have to combine work and family
life, changed family conditions, e.g. high rates of divorce, as well as changed migration
patterns involving the emergence of a new type of female migrant acting both as a
worker and a family member.
Reg. 883/04, like its predecessor Reg. 1408/71, does not contain any gender-specific
provisions referring specifically to women. The language of the Regulation is gender
neutral. Neither does it contain any provisions concerning situations of particular
interest to women, such as work interruption due to child-rearing or divorce. Since the
Regulation is new and is not yet in force, there is no case law concerning its
interpretation and application. Thus, we cannot explore the visibility or invisibility of
gender in the new Regulation by focusing on any gender-specific provisions or any
provisions concerning gender-relevant situations or any gender-relevant case law.
However, what we can do is focus on some central areas of the co-ordination law
and try to understand what they mean from a gender perspective. Such central areas
are undoubtedly the provisions of the Regulation concerning the persons covered and
some fundamental principles of co-ordination. Such principles are those underpin-
ning the choice of law provisions, the principle of aggregation and the principle of
exportability. It is important to note here that a considerable part of the gender-
relevant case law developed under Reg. 1408/71 concerns exactly these areas of co-
Vicki Paskalia
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1
OJ 2004 L 166/1.
2
OJ 1971 L 149/2.
3
OJ 1958 B 030/561.
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