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Has the EU Taken Comprehensive and Coherent Action to Combat Discrimination?

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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))

Abstract

EU anti-discrimination action cannot be expected to be ‘comprehensive’ from a material scope perspective due to the nature of the EU itself and the limits derived from EU primary law (e.g. the closed list of discrimination grounds in Article 19 TFEU). However, EU anti-discrimination action could be more ‘coherent’ than it is now. This contribution builds on external relations’ literature and emergent discussions in EU anti-discrimination law to identify ‘coherence needs’ in EU anti-discrimination action at internal, systemic and external levels. Whilst recognising that divergences in protection for different discrimination grounds may be justified to specifically address diverse forms of disadvantage, various examples of (allegedly unjustified) substantive and procedural incoherence are examined. Despite the difficulties to adopt coherent EU action in this field due to rulemaking constraints in an enlarged Union, the ‘policy integration clauses’ in Articles 7, 8 and 10 TFEU point towards mainstreaming as a key tool to achieve more coherence across EU action in this area. The article also hints towards various interpretative options to address some of the incoherence examples discussed.

This paper largely builds on the contributions and findings of the project ‘Rethinking EU Equality Law: Towards a More Coherent and Sustainable Regime’, coordinated by myself and Dr Ania Zbyszewska between 2016 and 2018 (https://rethinkingeuequalitylaw.wordpress.com), and funded by the ESRC (Impact Acceleration Account), the Society of Legal Scholars (SLS), University of Southampton (Centre of Policy, Law and Society) and the University of Warwick (Institute of Advanced Study). I am grateful to the participants of the Jean-Monnet Symposium ‘The European Union as Protector and Promoter of Equality’ for their comments on an earlier version of this paper; the usual disclaimer applies.

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Notes

  1. 1.

    Benedi Lahuerta and Zbyszewska (2018c), pp. 55–59.

  2. 2.

    Directive 2000/43 implementing the principle of equal treatment between persons irrespective of racial or ethnic origin, OJ L180/22-26 (2000), (‘Race Equality Directive’ or ‘RED’); Directive 2000/78 establishing a general framework for equal treatment in employment and occupation, OJ L3030/16 (2000), (‘Framework Equality Directive’ or ‘FED’).

  3. 3.

    Belavusau and Henrard (2019), p. 2.

  4. 4.

    Communication Establishing a European Pillar of Social Rights, COM (2017) 250 final of April 2017.

  5. 5.

    For a critical assessment of the potential of the Pillar in this area see Benedi Lahuerta and Zbyszewska (2018b), pp. 163–192.

  6. 6.

    I.e. The Union can only enact legislation in the areas where primary law confers explicit powers to the Union (Art. 5(2) TEU).

  7. 7.

    Note, however, that there are some exceptions (see e.g. Case 22/70, European Communities v Council (ERTA) (ECJ 31 March 1971) on the implied external competence of the EU) and that EU competence is also influenced by other ‘variables’, such as the case law of the Court of Justice of the EU (CJEU) and institutions’ interpretation of EU Treaties, see further Craig and De Búrca (2015), p. 74.

  8. 8.

    Art. 21 EUCH.

  9. 9.

    Nevertheless, Article 51 EUCH also stipulates that the principles established in the Charter should guide the development of EU policies (and the implementation of these policies by national authorities), which was interpreted in Fransson (Case 617/10, Åklagaren v Åkerberg Fransson (ECJ 7 May 2013)) as meaning ‘application’ of EU law, see further Bernitz (2015), pp. 155, 156–160.

  10. 10.

    See further Fiori-Khayat (2019), pp. 122–137, 123.

  11. 11.

    See e.g. Art. 8 RED. See also a discussion of the CJEU’s case law in this field in Henrard (2019), p. 95.

  12. 12.

    See e.g. Art. 15 RED.

  13. 13.

    Cf. with the open list of discrimination grounds established in Article 14 of the European Convention of Human Rights (ECHR).

  14. 14.

    Apart from the RED and the FED, these include Directive 2004/113 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) (gender equality in access to goods and services); Directive 2006/54 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 204/23-36 (2006)); Directive 2010/41 on the application of the principle of equal treatment between men and women engaged in an activity in a self-employed capacity and repealing Council Directive 86/613/EEC, OJ L 180/1-6 (2010) (gender equality for the self-employed).

  15. 15.

    Directive 2019/1158 on work-life balance for parents and carers and repealing Council Directive 2010/18/EU, OJ L 188/79-93 (2019), (‘Work-Life Balance Directive’). The proposal for a ‘Horizontal Directive’ (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) is also briefly mentioned although it is still pending.

  16. 16.

    On the potential of the EU Anti-discrimination Directives to combat nationality discrimination and protect minorities, see Benedi Lahuerta (2009), pp. 738–756; De Schutter (2016); Kochenov (2019), p. 119.

  17. 17.

    For a discussion on the differences between ‘sex’ and ‘gender’ see Lembke (2016).

  18. 18.

    Bertea (2005), p. 168.

  19. 19.

    Tietje (1997), pp. 212–213.

  20. 20.

    Den Hertog and Stroβ (2013), p. 378.

  21. 21.

    Shuibhne (2019), p. 168.

  22. 22.

    See e.g. Tietje (1997), pp. 212–213; Cremona (2008), pp. 13–14; Den Hertog and Stroβ (2013), pp. 377–388. Discussions regarding the coherence of EU law have also concerned the rights of EU and non-EU citizens, see e.g. Iglesias Sánchez (2013).

  23. 23.

    Gauttier (2004), p. 23; Missiroli (2001), pp. 177, 182; Shuibhne (2019), pp. 169–170.

  24. 24.

    Den Hertog and Stroβ (2013), pp. 375–376; see also Shuibhne (2019), p. 170; Tietje (1997), p. 212.

  25. 25.

    See further Shuibhne (2019), pp. 169–170.

  26. 26.

    Hillion (2014), p. 13. This is based on Cases such as Case 266/03, Commission v Luxembourg (ECJ 23 July 2005) and Case 433/03, Commission v Germany (ECJ 14 July 2005), where the CJEU referred to the need to ensure both ‘coherence’ and ‘consistency’ of action (see, respectively, paras. 60 and 66 of those judgments).

  27. 27.

    Den Hertog and Stroβ (2013), p. 378.

  28. 28.

    Cremona (2008), pp. 13–14; Den Hertog and Stroβ (2013), pp. 373–388; Shuibhne (2019), p. 160.

  29. 29.

    Benedi Lahuerta (2016), Benedi Lahuerta and Zbyszewska (2018a), available at https://rethinkingeuequalitylaw.wordpress.com.

  30. 30.

    For instance, building on Kant, Dupré identifies the ideal of ‘equality among all human beings’ as one of the ‘dignity ideals’ that ‘became instrumental in the powerful shift from rank to equality that characterized the spirit of the French Revolution and its Declaration; see Dupré (2015), pp. 37–38.

  31. 31.

    This has been recognized by the CJEU in Case 13/94, P. v S. and Cornwall (ECJ 30 April 1996), para. 22, as well as by AG Poiares Maduro and AG Cruz Villalón; see respectively, AG Opinion in Case 303/06, Coleman v Attridge Law and Steve Law (ECJ 17 July 2008), para. 8; AG Opinion in Case 447/09, Prigge v Lufthansa (ECJ 13 September 2011), para. 31.

  32. 32.

    See further Benedi Lahuerta (2016), pp. 354–355 and references cited therein.

  33. 33.

    Fredman (2016). See also Xenidis (2018), p. 41.

  34. 34.

    As I have argued elsewhere this is evident, inter alia, from EU Anti-discrimination Directives self-declared ambition ‘to put into effect’ the principle of equal treatment, the prohibition of indirect discrimination and the concept of ‘reasonable accommodation’, see Benedi Lahuerta (2016).

  35. 35.

    Commission (EC), Equality and Non-Discrimination in an Enlarged European Union, Green Paper (2004), p. 10.

  36. 36.

    Benedi Lahuerta and Zbyszewska (2018a), available at https://rethinkingeuequalitylaw.wordpress.com.

  37. 37.

    See e.g. Bell and Waddington (2003), pp. 355–358; Benedi Lahuerta (2016), p. 354.

  38. 38.

    Benedi Lahuerta and Zbyszewska (2018a).

  39. 39.

    Den Hertog and Stroβ (2013), p. 377.

  40. 40.

    Shuibhne (2019), p. 171.

  41. 41.

    Bertea (2005), p. 177.

  42. 42.

    Another example would be public procurement; see e.g. Germaine (2017), pp. 40–53.

  43. 43.

    See e.g. Zbyszewska (2016).

  44. 44.

    See the Commission (EU) Recommendation of 26 April 2017 on the European Pillar of Social Rights, which states that ‘equality of treatment and opportunities between women and men must be ensured and fostered in all areas, including regarding participation in the labour market, terms and conditions of employment and career progression’.

  45. 45.

    See De la Corte-Rodríguez et al. (forthcoming in 2020).

  46. 46.

    Den Hertog and Stroβ (2013), p. 377.

  47. 47.

    Article 2 TEU establishes that pursuing equality and protecting “the rights of persons belonging to minorities” are among the founding values of the EU. This provision also emphasises that non-discrimination and equality between women and men are at the core of European societies.

  48. 48.

    Article 3.3.2 TEU provides that the Union “shall combat […] discrimination, and shall promote […] equality between women and men” as part of its aims. This has also been recognised by the Commission in soft law, e.g.: ‘Measures to combat discrimination are also included amongst the fundamental objectives of the European Union in Article 3 of the draft constitution presented to the European Council by the European Convention in July 2003.’, Commission (EC), Equality and Non-Discrimination in an Enlarged European Union, Green Paper (2004), p. 10.

  49. 49.

    For a more detailed discussion on these two provisions see also Caracciolo di Torella (2019) and Ippolito (2019).

  50. 50.

    See Benedi Lahuerta (2016) and Benedi Lahuerta and Zbyszewska (2018a).

  51. 51.

    Den Hertog and Stroβ (2013), p. 377.

  52. 52.

    Adopted on 13 December 2006 (61/106), Convention on the Rights of Persons with Disabilities (United Nations 13 December 2006).

  53. 53.

    See e.g. Waddington (1999), Bell (2000) and Waddington and Bell (2001).

  54. 54.

    See above. Whilst these authors refer to ‘inconsistencies’, it is clear from their analysis that they are actually referring to ‘(in)coherence’ as nuanced and defined in section 2 of this article.

  55. 55.

    See e.g. Schiek (2002), Bell and Waddington (2003) and Howard (2007).

  56. 56.

    Bell (2020, 3rd ed, OUP forthcoming).

  57. 57.

    Waddington (1999). In fact, protection for sex discrimination in the field of access to goods and services was lacking until the 2004 Directive on gender equality in access to goods and services was adopted.

  58. 58.

    For that reason, it could be argued that racial or ethnic origin should be at the top of the hierarchy of protected grounds, even above sex. However, considering all the other EU measures that directly or indirectly focus on combatting sex discrimination (only) (e.g. Commission Recommendation on strengthening the principle of equal pay between men and women through transparency, OJ L 69/112–116 (2014); Work-Life Balance Directive), sex should arguably sit at the top of the hierarchy, together with racial or ethnic origin (and nationality discrimination for EU nationals only).

  59. 59.

    Even within the FED grounds, a sub-hierarchy may be identified, given that wider exceptions (and thus, weaker protection) exist for age (Arts. 3(4) and 6 FED) and religion discrimination (Art. 4(2) FED). While specific exceptions also apply to disability discrimination (Art. 3(4) EED), there are also specific provisions (i.e. Arts. 2(2)(ii) and 5 FED) that would arguably put disability over age and religion or belief in the hierarchy of discrimination grounds.

  60. 60.

    Howard (2018).

  61. 61.

    Case 83/14, CHEZ Razpredelenie Bulgaria AD v Komisia za zashtita ot diskriminatsia (ECJ 16 July 2015).

  62. 62.

    Cases 335/11 and 337/11, HK Danmark, acting on behalf of Jette Ring v Dansk almennyttigt Boligselskab (ECJ 11 April 2013); HK Danmark, acting on behalf of Lone Skouboe Werge v Dansk Arbejdsgiverforening, acting on behalf of Pro Display A/S (ECJ 11 April 2013).

  63. 63.

    Case 443/15, Parris v Trinity College Dublin and others (ECJ 24 November 2016).

  64. 64.

    Case 157/15, Achbita, Centrum voor gelijkheid van kansen en voor racismebestrijding v G4S Secure Solutions NV (ECJ 14 March 2017).

  65. 65.

    Case 188/15, Bougnaoui and Association de défense des droits de l’homme (ADDH) v Micropole SA (ECJ 14 March 2017).

  66. 66.

    Howard (2018), pp. 64–73.

  67. 67.

    See further Benedi Lahuerta (2016), p. 348.

  68. 68.

    Bell (2020) and European Commission (2004), p. 10.

  69. 69.

    Bell (2020) and Benedi Lahuerta (2016), pp. 348–367.

  70. 70.

    Conscious of this constraint, the European Commission recently proposed to amend Article 19(1) TFEU so that only qualified majority is required at the Council, see Commission, ‘More Efficient Decision-Making in Social Policy: Identification of Areas for an Enhanced Move to Qualified Majority Voting’, COM (2019) 186 final of 26 September 2019, 9–10.

  71. 71.

    These provisions refer to the ‘ordinary legislative procedure’, which is described in Article 294 TFEU. See also Article 16(3) TEU.

  72. 72.

    This is perfectly exemplified by the stark contrast between (a) the proposal for a Horizontal Directive, pending since 2008 due to the lack of consensus at the Council—inevitably required under its legal base (Article 19 TFEU)—, and (b) the ‘Work-Life Balance Directive’, proposed in 2017 under the legal basis of Article 153(1)(i)-(2)(b), and which was adopted relatively swiftly in June 2019. For a comment on the negotiation procedure of the Work-Life Balance Directive see De la Corte-Rodríguez et al. (2020).

  73. 73.

    Another area where systemic incoherence arguably exists is at the intersection of anti-discrimination law and atypical or precarious work, see further Bell (2019).

  74. 74.

    See e.g. Weldon-John (2013) and Davaki (2016).

  75. 75.

    For instance, by the European Commission’s New Start Initiative, see e.g. https://ec.europa.eu/social/main.jsp?langId=en&catId=1044&newsId=2388&furtherNews=yes.

  76. 76.

    See further De la Corte-Rodríguez et al. (forthcoming in 2020).

  77. 77.

    E.g. paternity leave has been extended to a minimum of at least 10 working days and must be compensated to the level of, at least, sick pay. Additionally, 2 of the 4 months of parental leave must become non-transferable between parents and must be compensated (at the level set by the relevant Member State); see Arts. 4 and 5.

  78. 78.

    This right has been extended to all working parents of children aged up to eight years old and, generally, to all carers, see Arts. 5 and 6.

  79. 79.

    See e.g. Zbyszewska (2013).

  80. 80.

    E.g. by requiring more comprehensive justifications from the employer if the request is dismissed and by limiting the situations where a request may not be granted.

  81. 81.

    See e.g. CORAN, ‘What influences mothers’ decisions about returning to work after having a baby?’ Available at www.familyandchildcaretrust.org/sites/default/files/Resource%20Library/Coram_UnderstandingSocietyBriefing_211019_1.pdf; UNICEF, Achieving Women’s Economic Empowerment and Early Childhood Care and Development as Mutually Reinforcing Objectives, available at www.unicef.org/earlychildhood/files/Technical_NoteAchieving_Womens_Economic_and_ECD.pdf.

  82. 82.

    E.g. Cases C-335/11 and 337/11, HK Danmark v Dansk almennyttigt Boligselskab; HK Danmark v Dansk Arbejdsgiverforening,, (ECJ 11 April 2013); C-354/13, FOA, acting on behalf of Karsten Kaltoft v KL, acting on behalf of the Municipality of Billund (ECJ 12 June 2014).

  83. 83.

    See e.g. Waddington (2015), p. 591; Waddington and Broderick (2018).

  84. 84.

    Art. 33(2) of the Convention establishes that State Parties ‘shall […] maintain, strengthen, designate or establish within the State Party, a framework, including one or more independent mechanisms, as appropriate, to promote, protect and monitor implementation of the present Convention’, taking ‘into account the principles relating to the status and functioning of national institutions for protection and promotion of human rights’.

  85. 85.

    Another source of external incoherence may arguably be identified in connection with the ECtHR case law. According to some authors, the recent CJEU approach in the case of Achbita on wearing religious symbols at the workplace may sit uncomfortably with the ECtHR ruling in Eweida (Eweida and others v UK. Apps. Nos: 48420/10, 59842/10, 51671/10 and 36516/10, judgment of 15 January 2013), see further McCrea (2016), but cf. with Hashemi (2019).

  86. 86.

    These have now been complemented by the Yogyakarta Principles plus 10 (YP+10), adopted on 10 November 2017. See also Parliamentary Assembly (Council of Europe), Recommendation 1117 (1989) Condition of transsexuals, at 11(d).

  87. 87.

    These principles have not been formalised in an international convention, but they were signed by leading experts from the UN and from more than 25 different countries and they are increasingly recognised as a key international benchmark in this field.

  88. 88.

    See e.g. European Parliament (EC) resolution on discrimination against transsexuals, OJ C 256/33-37 (1989).

  89. 89.

    Paras. 20–21. See also subsequent rulings on gender reassignment Case 117/01, K.B. v National Health Service Pensions Agency and Secretary of State for Health (ECJ 7 January 2004); Case 423/04, Richards v Secretary of State for Work and Pensions (ECJ 27 April 2006).

  90. 90.

    Some Member States have transposed Recital 3 into their national legislations (and in some cases, have extended the prohibition to gender identity discrimination) but many others have not, see further Timmer and Senden (2016), pp. 10–11.

  91. 91.

    See further Agius and Tobler (2012), pp. 139–216.

  92. 92.

    Report on the application of 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, COM (2015) 190 final of 5 May 2015, p. 4. See also the Parliament (EU), Resolution of 4 February 2014 on the EU Roadmap against homophobia and discrimination on grounds of sexual orientation and gender identity (2013/2183(INI)), at 4(C-D).

  93. 93.

    For instance, Directive 2011/95/EU (‘Recast Qualification Directive’) on standards for the qualification of third-country nationals or stateless persons as beneficiaries of international protection, for a uniform status for refugees or for persons eligible for subsidiary protection, and for the content of the protection granted, OJ L 337/9-25 (2011), Art. 10(1)(dd); Directive 2012/29/EU (‘Victims’ Rights Directive’) establishing minimum standards on the rights, support and protection of victims of crime, and replacing Council Framework Decision 2001/220/JHA, OJ L 315/57-73 (2012).

  94. 94.

    See also a similar requirement concerning nationality discrimination in Directive 2014/54/EU (‘Enforcement measures for free movement of workers’) on measures facilitating the exercise of rights conferred on workers in the context of freedom of movement for workers, OJ L 128/8-14 (2014), Art. 4.

  95. 95.

    Another example of procedural incoherence would be the lack of EU encouragement for collective redress mechanisms in the field of anti-discrimination law, whereas these tools are expressly recommended for other EU law areas, such as consumer law; see further Benedi Lahuerta (2018).

  96. 96.

    Chopin et al. (2019).

  97. 97.

    See Art. 12 of the Proposal 2019.

  98. 98.

    See further Kádár (2018), pp. 144–162.

  99. 99.

    Recommendation on standards for equality bodies, COM (2018) 3850 final of 22 June 2018, Chapter II, at 1.1.1 (2).

  100. 100.

    For instance, see criticism on the shortcomings of EU anti-discrimination law for the protection of non-EU nationals and national minorities in Kochenov (2018).

  101. 101.

    Concerning discrimination grounds protected under EU law only.

  102. 102.

    Ippolito (2019), pp. 58–59.

  103. 103.

    Ippolito (2019), pp. 65–68.

  104. 104.

    Alidadi (2012), pp. 707–710; Howard (2013), p. 360.

  105. 105.

    Bell (2018).

  106. 106.

    Miller (2009).

  107. 107.

    Lau has also advanced theoretical arguments based on transitional and categorical rationales, see Lau (2018), pp. 10–11.

  108. 108.

    See e.g. Ulane v E. Airlines 742 F.2d 1081, 1084-87 (US, 7th Cir. 1984); National Legal Services Authority (NALSA) v Union of India, SCC 1 (India 2014), para. 59. On the US approach, see further Eyer (2017).

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  1. University College Dublin, Sutherland School of Law, Dublin, Ireland

    Sara Benedi Lahuerta

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    Thomas Giegerich

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Benedi Lahuerta, S. (2020). Has the EU Taken Comprehensive and Coherent Action to Combat Discrimination?. 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_8

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