The Legal Approach to Equal Opportunities in Europe: Past, Present and Future*
| Date | 01 December 1998 |
| Author | Christopher McCrudden |
| Published date | 01 December 1998 |
| DOI | 10.1177/135822919800300304 |
International
Journal
of
Discrimination
and
the
Law,
1998,
Vol.
3,
pp. 193-208
1358-2291/98 $10
©
1998
A B Academic Publishers. Printed
in
Great Britain
THE LEGAL APPROACH TO EQUAL OPPORTUNITIES IN
EUROPE: PAST, PRESENT AND FUTURE*
CHRISTOPHER
McCRUDDEN**
Lincoln College, Oxford University, UK
ABSTRACT
The aim
of
this paper is to provide an overview for non-specialists
of
the body
of
law relating to equality
of
opportunity between women and men under European
Community law. The paper considers the history
of
the development
of
equality
law
in
EC law, describing the development
of
Article 119, the development
of
the
three most important directives in the 1970s, the growth
of
litigation surrounding
Article 119 and these Directives, the controversy over supplementary directives
in
the 1980s, the adoption
of
the Pregnancy Directive
in
the 1990s, and the increasing
use
of
'soft law' instruments such
as
in the area
of
equal pay and sexual harass-
ment. The paper considers how the jurisprudence
of
the European Court
of
Justice
has interpreted these legal provisions, concentrating on various themes: the concept
of
'indirect discrimination', the appropriate use
of
positive action policies, and the
meaning
of
equal pay for work
of
equal value, amongst other issues. The paper
considers how these provisions are enforced. It sets out the role
of
the Commission
in
bringing infringement actions, the role
of
individual litigation in the Member
States' courts, and the role
of
the European Court
of
Justice under Article
177
ref-
erences. In particular, the paper considers the extent to which the Court
of
Justice
has scrutinised the adequacy
of
national enforcement
of
equality rights, and the
principles underlying legal remedies for breach
of
European equality law. Finally,
the paper considers the factors which are likely to influence the future
of
equal
opportunities law in the European Community in the near future.
INTRODUCTION
The aim
of
this brief article is to point to some
of
the more import-
ant features
of
European Community law relating to equality
of
opportunity between women and men.
To
a large extent this body
of
law relates to employment and employment-related activity (such as
pensions and some aspects
of
social security).
An article
on
as broad a topic as 'the legal approach' to equal
opportunities between men and women may seem quixotic,
1
but
it is
noticeable how frequently lawyers and legal academics underestimate
**Reader in Law, Oxford University, Fellow, Lincoln College, Oxford.
194
the degree to which non-lawyers are so alienated by the density
of
detail
of
European equality law that they fail to recognise its signi-
ficance, and its parameters. At a time when the legal approach to
equality
of
opportunity is undergoing a significant re-evaluation,
as
we shall see, it seems particularly appropriate that a more general
overview is available to non-specialists in Community law.
I interpret the 'legal approach'
as
encompassing attempts to use
law to bring about equality
of
opportunity through the continuing use
of
the legal process,· in particular by way
of
empowering individuals
to enforce rights through judicial or other legal processes. I have
tended, therefore, not to discuss in any detail other Community pol-
icies which do not give rise to rights-enforcement in this sense.2 This
legal approach has come to be seen
as
a necessary but not a suffi-
cient basis for EC equal opportunity policy.
The Community has implemented specific action programmes
incorporating legal enforcement within a broad policy agenda since
the 1980s. Most recently, in 1995, the Commission proposed a
Fourth Action Programme on Equal Opportunities for Women and
Men, setting out its agenda for action up to 2000. This was endorsed
by a subsequent Council Decision.3 In particular, the programme
argued strongly for an approach to equal opportunities by which it
would become a policy which should intersect all other policies -the
policy
of
'mainstreaming'. The adoption
of
the action programme
was followed by a Communication from the Commission on 'Incorp-
orating equal opportunities for women and men into all Community
policies and activities' .4
A
BRIEF
HISTORY
OF
EC
EQUALITY LEGISLATION
I tum, first, to a brief history
of
the development
of
equality legisla-
tion by EC institutions. The starting point must be the Treaty
of
Rome
of
1957 which included a single article on equality between
women and men, namely Article 119. This was limited to providing
for equal pay for the same work. Article 119 provided:
Each Member State shall . . . maintain
the
application
of
the principle
that
men
and women should receive equal pay for equal work.
For
the purposes
of
this Article,
'pay'
means the ordinary basic
or
minimum wage
or
salary and any other consideration, whether in cash
or
in kind, which the worker receives, directly
or
indirectly, in respect
of
his employment from his employer.
For over a decade this provision had no noticeable effect on the
Member States, and it was not until the path-breaking decisions by
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