Thirty Years of EU Sex Equality Law: Looking Backwards, Looking Forwards
| Date | 01 December 2005 |
| Author | Tamara K. Hervey |
| DOI | 10.1177/1023263X0501200401 |
| Published date | 01 December 2005 |
| Subject Matter | Editorial |
EDITORIAL
THIRTY YEARS OF EU SEX EQUALITY LAW:
LOOKING BACKWARDS, LOOKING FORWARDS
TAMARA K. HERVEY*
§1. INTRODUCTION
As I write, the Equal Pay Directive 75/117/EEC celebrates its thirtieth birthday. The fact
that the body of law in which I research and teach mandates that I should receive equal
pay to that which a man would receive for writing this editorial is something to celebrate!
And, of course, the Equal Pay Directive represented only a modest beginning. The
Directive, coupled with the ruling of the European Court of Justice in 1976 in Case 43/75
Defrenne No 2, was a significant catalyst for what is now a complex and multilayered EU
law and policy in the field of sex equality. EU law has had wide-reaching effects in this
regard in the Member States. EU sex equality law has developed through Court-made
legal norms, legislation, and ‘new governance’ mechanisms. This is an opportune
moment to assess the development of that body of legal norms, its contribution and its
promise, in the context of an enlarging and constitutionalising European Union.
In this special edition, members of the European Commission’s Network of Legal
Experts on the Application of Community Law on Equal Treatment of Men and Women,
and other invited expert contributors, reflect on the achievements of the EU’s sex equality
law. They critically analyse recent developments and future prospects, offering strategies
for reform. The contributors represent a range of national backgrounds, including
Member States that joined the European Union in its latest geographical enlargement.
The contributions were originally presented at an Expert Seminar in the Hague
in November 2004. The seminar was organised in part as a challenge to a growing
assumption that sex equality is somehow ‘completed’, if not in society, at least in EU law,
and that we should instead focus our attention on the other non-discrimination grounds
articulated in Article 13 EC. The contributors to the Seminar, and to this special edition,
show that this is not the case, and that there is great potential for mutually beneficial
12 MJ 4 (2005) 307
* Professor of Law, University of Nottingham, UK. I would like to thank the many women (and the
smaller number of men) with whom I have discussed EU sex equality law over the years, and especially
Professor Noreen Burrows, who first prompted my interest in the subject.
308 12 MJ 4 (2005)
engagement between specialists in sex equality law and those seeking to promote non-
discrimination on other grounds. We are grateful to the organisers (and especially to
Rikki Holtmaat) and sponsors of that seminar (the Netherlands Ministry of Social Affairs
and Employment; the Netherlands Ministry of Interior and Kingdom Relations; the Law
Faculty of the University of Leiden; the Grotius Centre for International Legal Studies;
and E-quality – the expert centre on gender and diversity), for providing an opportunity
for the lively face-to-face exchanges that enrich our work.
§2. LOOKING BACKWARDS
Over the last thirty years, what have been the salient contributions of EU sex equality law:
to women, and to the EU’s legal order?
1
Putting aside the obvious point that it is of
course not feasible to determine and separate out the contributions of the EU’s legal
order from those contributions arising from other legal and non-legal forces for change,
it is possible to trace interventions arising from EU sex equality law that have, at least on
the balance of probabilities, contributed to bringing about changes to the legal (and
practical) position of women in the EU.
2
The analysis below proceeds on this basis.
If one begins with a ‘wish list’ of the elements of women’s inequality to be eradicated,
the record of the EU (and its Member States) in tackling these does not look particularly
impressive. Thirty years of EU sex equality law have not brought an end to violence
against women, trafficking in women, or exploitation of women. Nor has it brought
equal numbers of women and men into the public institutions of the Member States (or
the EU). Women’s pay still lags behind that of men. The workplace cannot be said to be
gender-neutral, given the large number of sectors dominated by either men or women.
And nor has the ‘glass ceiling’ been removed, which would mean, in all sectors, equal
numbers of men and women at the top. EU sex equality law has not brought equal
sharing of family responsibilities. Nor has it brought an end to gender-based stereoty ping
in public life and the media. I could continue ...
So, what has EU sex equality law achieved? Over the course of the last thirty years,
women in the Member States of the European Union
3
have experienced a movement
towards, for instance, the abolition of separate pay scales for men and women, and the
Editorial
1
This is not the place for a full historical account, rather see C. Hoskyns, Integrating Gender, (London:
Verso, 1996).
2
The EU’s external relations policy may also have had some modest impacts on the position of women, in
particular its human rights interventions: see, C. Barnard, ‘Gender Equality in the EU: A Balance Sheet’
in P. Alston (ed.), The EU and Human Rights (OUP, 1999), 215-279.
3
Of course, this conclusion applies only to the extent that Member States have fully implemented and
instrumentalised the norms of EU sex equality law, either as part of the ‘fidelity duty’ (Article 10 EC) to
the EU, or prior to EU membership, as part of their own constitutional and legal framework. As Csilla
Kollonay Lehoczky shows, in this issue, the new Member States may not yet have reached this position,
even though the ‘letter of the law’ implements the acquis communautaire.
To continue reading
Request your trial