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The Procedural and Institutional Dimension of EU Anti-discrimination Law

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The Principle of Equality in EU Law

Abstract

This chapter does not deal with substantive norms of EU equality law, but with the way in which EU law has built a procedural and institutional framework that Member States should put in place in order to facilitate the effective application of the substantive anti-discrimination rules. This dimension was almost absent from the first phase of EU anti-discrimination law, which focused on the grounds of sex and nationality, and its main features were established by two directives adopted in 2000 and later developed in other instruments as well. The emphasis is, on the one hand, on a series of requirements which aim at facilitating the effective access to justice of victims of discrimination and, on the other hand, on the creation of non-judicial equality bodies designed to promote a culture of equality. This framework was most recently, in 2014, extended with some modifications to non-discrimination on grounds of nationality and the free movement of workers within the European Union.

The authors are grateful to Gillian More for very valuable comments on an early draft of the paper. This chapter deepens earlier reflections by the authors, in particular in Muir (2015).

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Notes

  1. 1.

    For synthetic views of this impact, see de Witte (2010) and Bribosia et al. (2015).

  2. 2.

    Directive 75/117 on the approximation of the laws of the Member States relating to the application of the principle of equal pay for men and women (OJ 1975 L 45/19), Article 2; see also Directive 76/207 on the implementation of the principle of equal treatment for men and women as regards access to employment, vocational training and promotion, and working conditions (OJ 1976 L 39/40), Article 6; Directive 79/7 on the progressive implementation of the principle of equal treatment for men and women in matters of social security (OJ 1979 L 6/24), Article 6; Directive 86/378 on the implementation of the principle of equal treatment for men and women in occupational social security schemes (OJ 1986 L 225/40), Article 10; Directive 86/613 on the application of the principle of equal treatment between men and women engaged in an activity, including agriculture, in a self-employed capacity, and on the protection of self-employed women during pregnancy and motherhood (OJ 1986 L 359/56), Article 9.

  3. 3.

    ECJ, Case C-185/97 Coote EU:C:1998:424.

  4. 4.

    Directive 75/117, Article 6. As the formula is very broad, it could be understood as encouraging the Member States, among other things, to ensure efficient access to justice and judicial forms of redress.

  5. 5.

    ECJ, Case C-109/88 Danfoss EU:C:1989:383; ECJ, Case C-127/92 Enderby EU:C:1993:859.

  6. 6.

    Directive 97/80 on the burden of proof in cases of discrimination based on sex (OJ 1998 L 14/6).

  7. 7.

    Directive 97/80, Article 4.

  8. 8.

    Directives 75/117, 76/207 and 92/85 as well as Directive 96/34 on parental leave (OJ 1996 L 145/4) in so far as sex discrimination is concerned.

  9. 9.

    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 2006 L 204/23) and Directive 2010/41 on self-employment (OJ 2010 L 180/1).

  10. 10.

    Directive 2004/113 implementing the principle of equal treatment between men and women in the access to and supply of goods and services (OJ 2004 L 373/37).

  11. 11.

    With the notable exception of the Directive on equal treatment on grounds of sex in statutory social security schemes.

  12. 12.

    Directive 2000/78, Article 9; Directive 2004/113, Article 8(1) and (3–4); Directive 2010/41, Article 9. Directive 2006/54, Article 17 only refers to judicial remedies.

  13. 13.

    Racial Equality Directive, Article 7.

  14. 14.

    Commission Recommendation on strengthening the principle of equal pay between men and women through transparency (OJ 2014 L 69/112), paras 14–15.

  15. 15.

    Commission Recommendation on common principles for injunctive and compensatory collective redress mechanisms in the Member States concerning violations of rights granted under Union law (OJ 2013 L 201/60).

  16. 16.

    Among the scholarly writings on collective action in equality law, see Farkas (2014), Dawson et al. (2012), and Favilli (2014).

  17. 17.

    Directive 97/80.

  18. 18.

    Racial Equality Directive, Article 8.

  19. 19.

    Directive 2000/78, Article 11; Directive 2004/113, Article 10; Directive 2006/54, Article 24.

  20. 20.

    Directive 75/117 .

  21. 21.

    This can also be read as codification of the case law of the ECJ in the field of sex equality: ECJ, Case 14/83, von Colson and Kamann EU:C:1984:153.

  22. 22.

    Commission Recommendation on strengthening the principle of equal pay between men and women through transparency, supra n. 14, para 16.

  23. 23.

    See also Directive 2000/78, Article 17; Directive 2004/113, Article 14.

  24. 24.

    Racial Equality Directive, Article 15.

  25. 25.

    See also Directive 2006/54, Article 18; Directive 2004/113, Article 8(2).

  26. 26.

    Directive 2010/41 , Article 10.

  27. 27.

    See further: Ionescu and Iordache (2014) and ECJ, Case C-81/12 Asociaţia ACCEPT EU:C:2013:275.

  28. 28.

    Directive 95/46 of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data (OJ 1995 L 281/31). The supervision authorities are dealt with in its Article 28, and the Working Party in Article 29. The degree of independence which the supervisory authorities must possess was discussed by the European Court of Justice in Case C-518/07 Commission v Germany EU:C:2010:125, and in Case C-288/12 Commission v Hungary EU:C:2014:237.

  29. 29.

    See the study by Bignami (2011).

  30. 30.

    Directive 2006/54, Article 20; Directive 2004/113, Article 12; and Directive 2010/41, Article 11.

  31. 31.

    Article 12 of the 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, 2 July 2008. On that proposal, and the dim prospects for its enactment by the EU legislative branch, see Waddington (2011).

  32. 32.

    See the new Equality Ombudsman’s website www.do.se/en (accessed 31 December 2016). The traditional ‘general’ Ombudsman, monitoring all forms of maladministration, continues to exist separately.

  33. 33.

    For a first evaluation of the merger operation in France, see Chevallier (2013), p. 756.

  34. 34.

    For a comparative assessment, see EU Fundamental Rights Agency (2010).

  35. 35.

    For a comparative view of the current powers of equality bodies in this respect, see European Network of Equality Bodies (2010).

  36. 36.

    For further considerations on the functions and role of equality bodies, see de Witte (2011).

  37. 37.

    See its website www.equineteurope.org (accessed 31 December 2016), with many publications relating to the role of equality bodies.

  38. 38.

    ECJ, Case C-54/07 Feryn EU:C:2008:397, para 27.

  39. 39.

    ECJ, Case C-394/11 Belov EU:C:2013:48. See Kádár (2013).

  40. 40.

    ECJ, Case C-83/14 Nikolova EU:C:2015:480. See Grozev (2015).

  41. 41.

    Directive 2014/54 of the European Parliament and of the Council of 16 April 2014 (OJ 2014 L 128/8).

  42. 42.

    Proposal for a Directive of the European Parliament and of the Council on measures facilitating the exercise of rights conferred on workers in the context of freedom of movement for workers, COM(2013)236 final, 26 April 2013.

  43. 43.

    As reported and critically analysed in Editorial Comments (2014).

  44. 44.

    See Commission Report, Study to analyse and assess the socio-economic and environmental impact of possible EU initiatives in the Area of Freedom of Movement for Workers, in particular with regard to the enforcement of current EU provisions, VC/2011/0476, April 2012 (preliminary work in view of the drafting of Directive 2014/54), 32–33. Examples include: nationals may receive lower wages for the same job than their local colleagues because their qualification and professional experience is not sufficiently taken into account; and they may be excluded from access to certain jobs due to strict requirements of language knowledge which stand in no relation with the job functions.

  45. 45.

    See e.g. ECJ, Case C-19/92 Kraus EU:C:1993:125, para 32.

  46. 46.

    See further Davies (2011).

  47. 47.

    Workers Directive, Article 3(1).

  48. 48.

    Workers Directive, Article 3(6).

  49. 49.

    The question whether the existing mandate of equality bodies allowed them to become the designated bodies under the Workers Directive is discussed from a comparative perspective in European Network of Equality Bodies (2015).

  50. 50.

    In contrast with public interest litigation. Although see the Workers Directive, Recital No. 15: ‘Member States are invited to examine the implementation of common principles for injunctive and compensatory collective redress mechanisms ’.

  51. 51.

    Workers Directive, Article 4(2).

  52. 52.

    Workers Directive, Recital No. 17.

  53. 53.

    Workers Directive, Recital No. 20.

  54. 54.

    This is confirmed by the wording of the Directive, Article 4(1), 4(2)(c) and 4(2)(e).

  55. 55.

    E.g. Directive 2014/54, Article 4(3) and 4(2)(e). See also Article 6(2) on the use of more than one official language of the institutions of the Union.

  56. 56.

    As is often recalled: e.g. de Búrca (2006), p. 100.

  57. 57.

    See Racial Equality Directive, Article 7(2).

  58. 58.

    See Racial Equality Directive, Article 13(2).

  59. 59.

    See e.g. Directive 2010/41 (adopted on the basis of Article 154(3) TFEU), Article 1(1).

  60. 60.

    On the other role of fundamental rights, as a component part of internal market law, see de Witte (2006), p. 75 and Kosta (2015).

  61. 61.

    See further Muir (2013).

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Authors and Affiliations

  1. Faculty of Law, Maastricht University, PO Box 616, 6200 MD, Maastricht, Netherlands

    Elise Muir & Bruno de Witte

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  1. Elise Muir
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Correspondence to Elise Muir .

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  1. Department of Legal Studies, University of Bologna, Bologna, Italy

    Lucia Serena Rossi

  2. Department of Legal Studies, University of Bologna, Bologna, Italy

    Federico Casolari

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Muir, E., de Witte, B. (2017). The Procedural and Institutional Dimension of EU Anti-discrimination Law. In: Rossi, L., Casolari, F. (eds) The Principle of Equality in EU Law. Springer, Cham. https://doi.org/10.1007/978-3-319-66137-7_4

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