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Introduction: Is the European Union a Credible Protagonist of Equality in Europe and the Wider World?

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The European Union as Protector and Promoter of Equality

Part of the book series: European Union and its Neighbours in a Globalized World ((EUNGW,volume 1))

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Abstract

Closer analysis of the theoretical legal framework of the EU and the way in which it is put into practice leads to a mixed result regarding the Union’s credibility with regard to the protection and promotion of equality. The EU has done a lot, but not enough to combat discrimination within the Union. The EU and Member States have done too little to promote global and regional human rights treaties which prohibit discrimination. The Union should improve on its role as a protagonist of equality both internally and externally, leading by example and prudent policies, thus doing a service to humanity.

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Notes

  1. 1.

    Giegerich et al. (2019) (available at http://jean-monnet-saar.eu/wp-content/uploads/2019/07/ExpertPaper_Tagungsbericht2019_final.pdf [accessed on 16 January 2020]).

  2. 2.

    See also the second recital of the Preamble of the Charter of Fundamental Rights of the EU.

  3. 3.

    See Application No. 40892/98, Koua Poirrez v France (ECtHR 30 September 2003), para. 36.

  4. 4.

    Art. 51 (1) CFR.

  5. 5.

    Case C-617/10, Åkerberg v Åklagaren (ECJ 26 February 2013), paras. 19, 21.

  6. 6.

    See Case C-414/16, Egenberger v Evangelisches Werk für Diakonie und Entwicklung (ECJ 17 April 2018), paras. 70 ff.; Case C-122/17, Meade v Smith (ECJ 7 August 2018), paras. 46 f.; Case C-68/17, IR v JQ (ECJ 11 September 2018), paras. 67 ff.; Case C-193/17, Cresco v Achatzi (ECJ 22 January 2019), paras. 75 ff. See also Joined Cases C-569/16 and C-570/16, Stadt Wuppertal v Bauer and Willmeroth v Broßonn (ECJ 6 November 2018), para. 87.

  7. 7.

    But see the “horizontal clauses” in Art. 8 TFEU (“… the Union shall aim to eliminate inequalities … between men and women”) and Art. 10 TFEU (“… the Union shall aim to combat discrimination based on sex, racial or ethnic origin, religion or belief, disability, age or sexual orientation”). Yet, “shall aim to eliminate/combat” falls short of “shall eliminate/combat”.

  8. 8.

    Art. 18 sentence 2 TFEU. Art. 157 (3) TFEU also prescribes the ordinary legislative procedure for the adoption of measures to ensure the application of the principle of equal opportunities and equal treatment of men and women in matters of employment and occupation, including the principle of equal pay for equal work or work of equal value.

  9. 9.

    According to Art. 13 (1) TEC (added by the Treaty of Amsterdam of 1997), the Council acted unanimously on a proposal from the Commission and after consulting the European Parliament.

  10. 10.

    Council Directive 2000/43/EC implementing the principle of equal treatment between persons irrespective of racial or ethnic origin OJ L 180/22–26 (2000).

  11. 11.

    Council Directive 2000/78/EC establishing a general framework for equal treatment in employment and occupation OJ L 303/16–22 (2000).

  12. 12.

    Council Directive 2004/113/EC implementing the principle of equal treatment between men and women in the access to and supply of goods and services OJ L 373/37–43 (2004). See also the Directive 2006/54/EC of the European Parliament and of the Council of 5 July 2006 on the implementation of the principle of equal opportunities and equal treatment of men and women in matters of employment and occupation (recast) OJ L 204/23–26 (2006) which was based on Art. 141 (3) TEC (the predecessor provision of Art. 157 (3) TFEU).

  13. 13.

    See the CJEU case-law cited above in footnote 6.

  14. 14.

    Proposal for a Council Directive on implementing the principle of equal treatment between persons irrespective of religion or belief, disability, age or sexual orientation, COM (2008) 426 final of 2 July 2008.

  15. 15.

    Jean-Claude Juncker, Candidate for President of the European Commission: A New Start for Europe: My Agenda for Jobs, Growth, Fairness and Democratic Change – Political Guidelines for the next European Commission, Strasbourg, 15 July 2014, p. 10 (https://ec.europa.eu/commission/sites/beta-political/files/juncker-political-guidelines-speech_en.pdf).

  16. 16.

    A Union that strives for more. My agenda for Europe: Political Guidelines for the next European Commission 2019–2024, p. 11 (https://ec.europa.eu/commission/sites/beta-political/files/political-guidelines-next-commission_en.pdf).

  17. 17.

    This was done by von der Leyen (2019)—see preceding footnote, pp. 8, 11.

  18. 18.

    Second recital of the preamble of the Charter of Fundamental Rights of the EU.

  19. 19.

    International Convention on the Elimination of All Forms of Racial Discrimination, UNTS vol. 660 (1965), p. 195.

  20. 20.

    Convention on the Elimination of All Forms of Discrimination against Women, UNTS vol. 1249 (1979), p. 13.

  21. 21.

    Art. 18 CERD; Art. 25 CEDAW.

  22. 22.

    International Covenant on Civil and Political Rights, UNTS vol. 999 (1966), p. 171.

  23. 23.

    International Covenant on Economic, Social and Cultural Rights, UNTS vol. 993 (1966), p. 3.

  24. 24.

    Art. 2 (1), Art. 26 ICCPR; Art. 2 (2), Art. 3 ICESCR.

  25. 25.

    Art. 48 ICCPR; Art. 26 ICESCR.

  26. 26.

    Art. 14 CERD: declarations by 23 Member States; Optional Protocol to CEDAW of 6 October 1999 (UNTS vol. 2131, p. 83): ratified by 26 Member States; Optional Protocol to the ICCPR of 16 December 1966 (UNTS vol. 999, p. 171): ratified by 27 Member States (not the UK); Optional Protocol to the ICESCR of 10 December 2008 (UN General Assembly Resolution A/RES/63/117): ratified by 8 Member States.

  27. 27.

    See Schadendorf (2015), pp. 28 ff.

  28. 28.

    Council Directive 2000/43/EC, recital (3) of the preamble: the Universal Declaration of Human Rights, the United Nations Convention on the Elimination of all forms [sic!] of Discrimination Against Women, the International Convention on the Elimination of all forms [sic!] of Racial Discrimination and the United Nations Covenants on Civil and Political Rights and on Economic, Social and Cultural Rights. Council Directive 2000/78/EC, recital (4) of the preamble: the Universal Declaration of Human Rights, the United Nations Convention on the Elimination of All Forms of Discrimination against Women, the United Nations Covenants on Civil and Political Rights and on Economic, Social and Cultural Rights.

  29. 29.

    Convention on the Rights of Persons with Disabilities, UNTS vol. 2515 (2006), p. 4. See Art. 43, 44 of that Convention.

  30. 30.

    See in particular Art. 1 (1), Art. 3 lit. b and e, Art. 4 (1), Art. 5, Art. 6 of that Convention.

  31. 31.

    See Art. 1 (1), Art. 3 lit. c CRPD.

  32. 32.

    Council Decision concerning the conclusion, by the European Community, of the United Nations Convention on the Rights of Persons with Disabilities, with a declaration concerning the competence of the EC with regard to matters governed by the Convention in Annex II OJ L 23/35–61 (2010).

  33. 33.

    See ECJ, Opinion 2/94, 28 March 1996 (according to which EU accession to the ECHR requires an express basis in primary law).

  34. 34.

    The Convention was amended accordingly in order to enable accession by the EU (see Art. 59 (2) ECHR that was inserted by Art. 17 of Protocol No. 14 of 13 May 2004 [CETS No. 194]). Originally, only Member States of the Council of Europe could become parties to the ECHR.

  35. 35.

    See Protocol (No. 8) Relating to Article 6 (2) of theTreaty on European Union on the Accession of the Union to the European Convention on the Protection of Human Rights and Fundamental Freedoms OJ C 326/273-273 (2016).

  36. 36.

    ECJ, Opinion 2/13, 18 December 2014.

  37. 37.

    Application No. 24833/94, Matthews v UK (ECtHR 18 February 1999).

  38. 38.

    Application No. 45036/98, Bosphorus v Ireland (ECtHR 30 June 2005).

  39. 39.

    Protocol No. 12 to the Convention for the Protection of Human Rights and Fundamental Freedoms CETS No. 177 (2000).

  40. 40.

    See recitals (1) and (2) of the Preamble of Protocol No. 12.

  41. 41.

    See Art. 46 ECHR.

  42. 42.

    While Art. 6 (2) TEU mentions only accession to the Convention as such, it is widely (but not universally) accepted that the accession power conferred upon the EU by that provision extends at least to those Protocols which bind all the Member States and whose substantive provisions are regarded as additional articles to the Convention. See Grabenwarter and Pabel (2013), note 44.

  43. 43.

    See Art. 48 (4), (6) TEU.

  44. 44.

    Art. 218 (8) subpara. 1 TFEU.

  45. 45.

    First recital of the Preamble of the Universal Declaration of Human Rights UN General Assembly Resolution 217 A (III) (1948).

  46. 46.

    See the second recital of the preamble as well as Art. 1 (2) of the Charter of the United Nations, UNTS vol. 829 (1945), p. 119. See also the UN General Assembly Resolution “Promotion of a democratic and equitable international order”, A/RES/73/169 (2018).

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    Thomas Giegerich

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Giegerich, T. (2020). Introduction: Is the European Union a Credible Protagonist of Equality in Europe and the Wider World?. In: Giegerich, T. (eds) The European Union as Protector and Promoter of Equality. European Union and its Neighbours in a Globalized World, vol 1. Springer, Cham. https://doi.org/10.1007/978-3-030-43764-0_1

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