Abstract
This chapter aims to reconstruct the nature and content of the principle of equality in both international and EU law, by providing an overview of its evolution in these fields. To this end, it is structured into two main sections. The first one deals with the functioning of the concept of equality in inter-state relations, by describing the transition from the “classical” international law idea of “sovereign equality” to the attempts to draft international instruments aimed at “compensating inequalities”. The second one, moving on from the assumption that the EU is a Union of states and citizens, inquires into the nature of equality in this peculiar supranational system, by investigating the implementation of this principle in both Member States relations and towards individuals. The latter analysis reveals a nuanced approach to equality by European institutions, ranging from the CJEU’s “indifference towards difference” to the protection of the weaker party in EU private international law.
This is a preview of subscription content, log in via an institution to check access.
Access this chapter
Tax calculation will be finalised at checkout
Purchases are for personal use only
Notes
- 1.
de Vattel 1820, p. 11: “Un nain est aussi bien un homme qu’un géant; une petite République n’est pas moins un État souverain que le plus puissant Royaume”.
- 2.
Cassese 2005, pp. 97–123.
- 3.
Westlake 1904, p. 308.
- 4.
- 5.
- 6.
Quadri 1952, pp. 621–633.
- 7.
Brest-Litovsk Peace Negotiations (1917–1928), sub negotiation basis, point 6 (Soviet delegation).
- 8.
Documents of The United Nations Conference of International Organization, San Francisco, 1945, UNIO, London–New York, 1945–1955, vol. VI, p. 332: “The Delegate of Belgium expressed the opinion that the smaller states would regard it as somewhat ironical, in view of the striking inequalities evident in the Organization, to find at the head of the statement of principles a bold reference to the ‘sovereign equality’ of all members”.
- 9.
UN General Assembly 1970: “The principle of sovereign equality of States. All States enjoy sovereign equality. They have equal rights and duties and are equal members of the international community, notwithstanding differences of an economic, social, political or other nature” (emphasis added).
- 10.
United Nations Vienna Convention on the Law of the Treaties, 23 May 1969, UNTS vol. 1155, p. 331, entered into force on 27 January 1980, Article 53: “For the purposes of the present Convention, a peremptory norm of general international law is a norm accepted and recognized by the international community of States as a whole as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character” (emphasis added).
- 11.
United Nations Convention on the Law of the Sea (UNCLOS), 10 December 1982, UNTC Vol. 1833, I-31363, entered into force on 16 November 1994.
- 12.
UNCLOS, above No. 11, Article 140, para. 1: “Activities in the Area shall, as specifically provided for in this Part, be carried out for the benefit of mankind as a whole, irrespective of the geographical location of States, whether coastal or land-locked, and taking into particular consideration the interests and needs of developing States and of peoples who have not attained full independence or other self-governing status recognized by the United Nations”; and Article 141: “The Area shall be open to use exclusively for peaceful purposes by all States, whether coastal or land-locked, without discrimination and without prejudice to the other provisions of this Part”. About Article 140, Sect. 1.2, see below, Sect. 1.3 and footnote 18.
- 13.
The United Nations Conference on Trade and Development, permanent body of the UN General Assembly, was established in Geneva (Switzerland), in 1964. About the right to economic development, see recently Piketty 2021, p. 309.
- 14.
The principles of the NIEO have, in fact, a notably uncertain status: on the one hand they are not merely individual States’ instances, since they received a ‘consecration’ by the UN General Assembly (who formally included them in various resolutions); on the other hand such instances are not yet incorporated into a stable corpus of binding international rules.
- 15.
UN Conference on Environment and Development 1992, Principle 15: “In order to protect the environment, the precautionary approach shall be widely applied by States according to their capabilities” (emphasis added).
- 16.
UNCLOS, above. No. 11, Article 194, para 1: “States shall take, individually or jointly as appropriate, all measures consistent with this Convention that are necessary to prevent, reduce and control “pollution of the marine environment from any source, using for this purpose the best practicable means at their disposal and in accordance with their capabilities, and they shall endeavour to harmonize their policies in this connection”.
- 17.
Ibid., Article 125: “1. Land-locked States shall have the right of access to and from the sea for the purpose of exercising the rights provided for in this Convention including those relating to the freedom of the high seas and the common heritage of mankind. To this end, land-locked States shall enjoy freedom of transit through the territory of transit States by all means of transport. […] 3. Transit States, in the exercise of their full sovereignty over their territory, shall have the right to take all measures necessary to ensure that the rights and facilities provided for in this Part for land-locked States shall in no way infringe their legitimate interests”.
- 18.
Ibid., Article 140, para 2: “The Authority shall provide for the equitable sharing of financial and other economic benefits derived from activities in the Area through any appropriate mechanism, on a non-discriminatory basis, in accordance with article 160, para 2(f)(i)”.
- 19.
UN General Assembly 1994, Article 4, para 5: “The developed country Parties and other developed Parties included in Annex II shall take all practicable steps to promote, facilitate and finance, as appropriate, the transfer of, or access to, environmentally sound technologies and know-how to other Parties, particularly developing country Parties, to enable them to implement the provisions of the Convention. In this process, the developed country Parties shall support the development and enhancement of endogenous capacities and technologies of developing country Parties. Other Parties and organizations in a position to do so may also assist in facilitating the transfer of such technologies”.
- 20.
Kyoto Protocol to the United Nations Framework Convention on Climate Change 1997, Article 3, para 14: “Each Party included in Annex I shall strive to implement the commitments mentioned in para 1 above in such a way as to minimize adverse social, environmental and economic impacts on developing country Parties, particularly those identified in Article 4, paras 8 and 9, of the Convention. In line with relevant decisions of the Conference of the Parties on the implementation of those paragraphs, the Conference of the Parties serving as the meeting of the Parties to this Protocol shall, at its first session, consider what actions are necessary to minimize the adverse effects of climate change and/or the impacts of response measures on Parties referred to in those paragraphs. Among the issues to be considered shall be the establishment of funding, insurance and transfer of technology”.
- 21.
UN Conference on Environment and Development 1992, Principle 7: “States shall cooperate in a spirit of global partnership to conserve, protect and restore the health and integrity of the Earth’s ecosystem. In view of the different contributions to global environmental degradation, States have common but differentiated responsibilities. The developed countries acknowledge the responsibility that they bear in the international pursuit of sustainable development in view of the pressures their societies place on the global environment and of the technologies and financial resources they command” (emphasis added).
- 22.
Supra in this same section in the text and in footnotes 15, 16.
- 23.
Supra, Sect. 1.1.
- 24.
Rawls 1971, pp. 276–285.
- 25.
Bobbio 1995, p. 6.
- 26.
Supra, Sect. 1.3.
- 27.
Supra, Sect. 1.2.
- 28.
“In Community law, equality as a legal concept is omnipresent”: Tridimas 2006, p. 60.
- 29.
CJEU, case 26/62, van Gend en Loos, ECLI:EU:C:1963:1, para II.B.
- 30.
Supra, Sect. 1.1.
- 31.
Article 4, para 2, TEU affirms the principle of equality with reference to the Member States, with a formula quite similar to the one used, in relation to individuals, by Article 20 of the EU Charter of Fundamental Rights (see below in Sect. 1.6).
- 32.
Kelsen 1944, pp. 207–220.
- 33.
Rossi 2017, p. 4.
- 34.
Triggiani 2011, p. X.
- 35.
Infra in the present section and in Sect. 1.6.
- 36.
Infra, Sect. 1.7.
- 37.
Until the adoption of the Charter of Fundamental Rights of the European Union in 2000 and the reference to it (in terms of EU primary law) by the treaty of Lisbon. About the Charter, see below in the following Sect. 1.6 and footnotes 43–47.
- 38.
Sorrentino 2017, p. 27.
- 39.
Inter alia, CJEU, case C-810/79, Peter Überschär, ECLI:EU:C:1980:228, para 16: “According to the established case-law of the Court the general principle of equality, of which the prohibition on discrimination on grounds of nationality is merely a specific enunciation, is one of the fundamental principles of Community law” (emphasis added).
- 40.
This tendency started with the leading case decided in 1977 (CJEU, cases 117/76 and 16/77, Ruckdeschel et al. v Hauptzollamt Hamburg-St. Annen, ECLI:EU:C:1977:160, para 7) and then was confirmed by all the subsequent case-law.
- 41.
The prohibitions on discrimination expressed by Articles 36 and 110 TFEU on movement of goods, Articles 101 and 102 TFEU on competition and Article 107 TFEU on State aid are all expressions of the same ‘functionalist’ logic.
- 42.
CJEU, case 80/70, Defrenne I, case 43/75, Defrenne II, and case 149/77, Defrenne III.
- 43.
Charter of Fundamental Rights of the European Union (EUCFR), 7 December 2000, binding in EU Member States when the Treaty of Lisbon entered into force in December 2009.
- 44.
Article 20 EUCFR: “Everyone is equal before the law”.
- 45.
Title III includes five articles on the subject of equality: Articles 22–26 of the Charter.
- 46.
Article 21 EUCFR, above footnote 44: “1. Any discrimination based on any ground such as sex, race, color, ethnic or social origin, genetic features, language, religion or belief, political or any other opinion, membership of a national minority, property, birth, disability, age or sexual orientation shall be prohibited—2. Within the scope of application of the Treaties and without prejudice to any of their specific provisions, any discrimination on grounds of nationality shall be prohibited”.
- 47.
Among the most significant judgments, CJEU, case C-414/16, Egenberger, ECLI:EU:C:2018:257, and CJEU, case C-193/17, Cresco Investigation GmbH v Markus Achatz, ECLI:EU:C:2019:43.
- 48.
Unlike Article 21 of the Charter (previously mentioned), Article 13 EC (today Article 19 TFEU) does not provide for a substantive prohibition of discrimination, rather it offers a legal basis to adopt Community measures geared toward implementing equal treatment. This article of the Treaty (again, unlike Article 21) is thus not subject to stringent limits in terms of its scope of application, which are fixed in the Charter (specifically Article 51.1) as regards its substantive provisions.
- 49.
Directive 2000/43/EC of 29 June 2000 implements the principle of equal treatment regardless of race and ethnic origin. Directive 2000/78/EC of 27 November 2000 establishes a general framework for equal treatment regarding work and working conditions (framework directive). The adoption of Directive 2002/73/EC of 23 September 2002 on gender discrimination in access to employment, working conditions and professional training, took more time.
- 50.
Costamagna 2012, pp. 381–397.
- 51.
EU Directive no. 2019/1158 of 20 June 2019 on work-life balance for parents and careers.
- 52.
See Article 141 EC Treaty, now Article 157 TFEU, on the subject of equal remuneration between man and female workers: see infra, in this same section.
- 53.
CJEU, case C-46/07, Commission v Italy, ECLI:EU:C:2008:618.
- 54.
CJEU, case C-356/09, Kleist, ECLI:EU:C:2010:703.
- 55.
The Court of Justice did not dwell, instead, on the issue of age discrimination according to Directive 2000/78, as this was not a question considered by the national court in the context of the referral to the Court of Justice: see CJEU, case C-356/09, Kleist, ECLI:EU:C:2010:703, para 44.
- 56.
Law 23 October 1992 no. 42 examined by the Court of Justice in the judgment in question, delivered in 2008, had been placed under the scrutiny of the Italian Constitutional Court on several occasions. The Court had always rejected every censure of unconstitutionality considering that the legal differentiation was driven by a will to favor women in order to compensate for any disadvantage they may have suffered in their professional lives.
- 57.
Zaccaroni 2021, pp. 40–111.
- 58.
- 59.
Fredman 2001, p. 145: “equality is not just an add-on or after-thought to policy, but is one of the factors taken into account in every policy and executive decision”.
- 60.
In the traditional anti-discrimination model, the concept of (direct) discrimination refers to a situation in which the person complaining of having been discriminated against appears identical, in all relevant aspects, to another person and yet suffers prejudice from the discrimination.
- 61.
For some authors, the inclusion of “sexual harassment” as a form of discrimination within the framework of Directive 2000/78 (in so far as such behavior has the purpose or effect of violating someone’s dignity by creating an “intimidating, hostile, degrading, humiliating or offensive environment”) would appear to indicate that EU law accepts the concept of equality with a meaning that goes beyond the neutralization of differences and pays attention to individuals who suffer prejudice because they are different due to intrinsic characteristics.
- 62.
Opinion of Advocate General Poiares Maduro, delivered on CJEU, case C-303/06, Coleman: “In order to determine what equality requires in any given case it is useful to recall the values underlying equality. These are human dignity and personal autonomy (para 8). At its bare minimum, human dignity entails the recognition of the equal worth of every individual. One’s life is valuable by virtue of the mere fact that one is human, and no life is more or less valuable than another [...] A relevant, but different, value is that of personal autonomy. It dictates that individuals should be able to design and conduct the course of their lives through a succession of choices among different valuable options. The exercise of autonomy presupposes that people are given a range of valuable options from which to choose (para 9) [...] The most obvious way in which such a person’s dignity and autonomy may be affected is when one is directly targeted because one has a suspect characteristic. [...] Recognising the equal worth of every human being means that we should be blind to considerations of this type when we impose a burden on someone or deprive someone of a benefit. Put differently, these are characteristics which should not play any role in any assessment as to whether it is right or not to treat someone less favourably (para 10). Similarly, a commitment to autonomy means that people must not be deprived of valuable options in areas of fundamental importance for their lives by reference to suspect classifications (para 11)”.
- 63.
Tonolo 2011, pp. 34–161.
- 64.
Reg. (EC) no. 593/2008 of the European Parliament and of the Council, of 17 June 2008 on the law applicable to contractual obligations (Rome I), in Off. Jour. Eur. Comm. L 177 of 4 July 2008, pp. 6–16.
- 65.
- 66.
Assuming that self-regulation can be a possible source of injustice, public interference in defence of the weakest and against the hegemonic interests of the strongest is justified.
- 67.
Raiser 1977, p. 171.
- 68.
Reg. (EC) no. 864/2007 of the European Parliament and of the Council, of 11 July 2007, on the law applicable to non-contractual obligations (Rome II), in Off. Jour. Eur. Comm. L 199 of 31 July 2007, p. 40 ff.
- 69.
Pursuant to Article 14 of the Rome II Regulation.
- 70.
Article 4 of the Rome II Regulation.
- 71.
- 72.
Recital 6 of the Rome II Regulation points out that its conflict rules pursue “the predictability of the outcome of litigation, certainty as to the law applicable and the free movement of judgments”.
- 73.
In light of what is specified in recital 25, Article 7 of the Rome II Regulation is correlated to principles that contribute to achieving the goal of greater environmental protection, which is central to this provision, such as the “polluter pays” principle, as well as the principles of precaution, preventive action and corrective action.
- 74.
Article 37 of the Charter.
- 75.
Initially affirmed by case-law, the Günstigkeitsprinzip was incorporated into German legal system by the law of 21 May 1999, laying down private international law rules on non-contractual obligations and rights in rem. In cases where the Rome II Regulation is inapplicable, in fact, the general conflict rule on torts (Article 40.1 EGBGB—Introductory Law to the German Civil Code) allows the injured party to choose the lex loci damni, which—in case such electio iuris is exercised—becomes applicable instead of the law of the site of the event generating the damage, which otherwise applies according to the provision in question. On this principle, see Hay 1999, pp. 633–652.
- 76.
See Article 4.3 of the Rome II Regulation. The potential revision of Article 7—through the inclusion de iure condendo of an escape clause, which the judge should apply to identify the most functional solution for protecting the environment—appears, however, rather incompatible with this provision. Firstly, this type of solution encourages the tendency of national courts (especially in the area of tort law) to apply the material law of the forum. Secondly, this revision would promote the use of this clause for material purposes rather than its traditional localization purposes. See Lagarde 1986, pp. 25 and 111.
- 77.
Recital 25 of the Rome II Regulation.
- 78.
- 79.
See Institute of International Law, Draft Resolution (27 January 2021) on Human Rights and Private International Law, https://www.idi-iil.org/app/uploads/2021/05/Report-4th-commission-human-rights-and-private-international-law-vol-81-yearbook-online-session.pdf.
References
Barbera M (2002) L’eguaglianza come scudo e l’eguaglianza come spada. Rivista giuridica del lavoro e della previdenza sociale 4: 805–820
Bobbio N (1995) Eguaglianza e libertà. Einaudi, Turin
Carella G (1999) Autonomia della volontà e scelta di legge nel diritto internazionale privato. Cacucci, Bari
Cassese A (2005) International Law, 2nd edn. Oxford University Press, Oxford
Cavers DF (1970) Contemporary conflicts law in American perspective. In: Collected courses of the Hague Academy of International Law, t. 131
Costamagna F (2012) The Internal Market and the Welfare State: Anything New after Lisbon? In: Trybus M, Rubini L (eds) The Treaty of Lisbon and the Future of European Law and Policy. Edward Elgar Publishing, Cheltenham, UK/Northampton, MA, USA, pp 381–397
Crawford J (2012) Sovereignty as a Legal Value. In: Crawford J, Koskenniemi M (eds) The Cambridge Companion to International Law. Cambridge University Press, Cambridge, UK, p. 117
Currie B (1963) Selected essays on the conflict of laws. Duke University Press. Durham, USA
De Vattel E (1820) Le droit des gens ou principes de la loi naturelle appliquées à la conduite et aux affaires des nations et des souverains. Janet et Cotelle, Paris
Fredman S (2001) Equality: A new Generation? Industrial Law Journal 30 (2): 145–168
Gray J (2021) Party Autonomy in EU Private International Law. Intersentia, Cambridge/Antwerp/Chicago
Hay P (1999) From Rule-Orientation to “Approach” in German Conflicts Law. Am. Journal Comp. Law 47(4): 633–652
Holmes E (2005) Anti-Discrimination Rights without Equality. Modern Law Review 68(2): 175–194
Kelsen H (1944) The Principle of Sovereign Equality of States as a Basis for International Organization. Yale Law Journal 53(2): 207–220
Kyoto Protocol to the United Nations Framework Convention on Climate Change (1997) FCCC/CP/1997/7/Add.1
Lagarde P (1986) Le principe de proximité dans le droit international privé contemporain. In: Collected Courses of the Hague Academy of International Law, t. 196, p. 25 and p. 111
Piketty T (2021) Une brève histoire de l’égalité. Seuil, Paris
Quadri R (1952) Le fondement du caractère obligatoire du droit international public. In: Collected Courses of the Hague Academy of International Law, t. 80, pp. 621–633
Raiser L (1977) Die Aufgabe des Privatrechts. Aufsätze zum Privat- und Wirtschaftsrecht aus drei Jahrzehnten. Athenäum Verlag, Kronberg
Rawls J (1971) A Theory of Justice. Harvard University Press, Cambridge, MA, USA
Rossi LS (2017) The Principle of Equality among Member States of the European Union. In: Rossi LS, Casolari F (eds) The Principle of Equality in EU Law, Part I: Equality and States: Are Some States More ‘Equal’ than Others? Springer, Berlin, p. 4
Sorrentino F (2017) Eguaglianza formale. Costituzionalismo.it 3: 27–33
Tonolo S (2011) Il principio di uguaglianza nei conflitti di leggi e di giurisdizioni. Giuffrè, Milan
Tridimas T (2006) The General Principles of EU Law, 2nd edn. Oxford University Press, Oxford
Triggiani U (2011) Le nuove frontiere della cittadinanza europea. In: Triggiani U (ed) Le nuove frontiere della cittadinanza europea. Cacucci, Bari, p. X.
UN Conference on Environment and Development (1992) Rio Declaration on Environment and Development, A/CONF.151/26, vol. I and A/CONF.151/26, vol. II
UN General Assembly (1970) Declaration on Principles of International Law concerning Friendly Relations and Cooperation among States in accordance with the Charter of the United Nations, A/RES/2625(XXV)
UN General Assembly (1994) United Nations Framework Convention on Climate Change, A/RES/48/189
Waldron J (2017) One Another’s Equals. Harvard University Press, Cambridge, MA, USA/London, UK
Westlake J (1904) International Law, Part. I. Cambridge University Press, Cambridge, UK
Zaccaroni G (2021) Equality and Non-Discrimination in the EU. The Foundations of the EU Constitutional Legal Order. Edward Elgar Publishing, Cheltenham, UK/Northampton, MA, USA
Author information
Authors and Affiliations
Corresponding author
Editor information
Editors and Affiliations
Rights and permissions
Copyright information
© 2023 T.M.C. ASSER PRESS and the authors
About this chapter
Cite this chapter
Ivaldi, P. (2023). Variations on the Principle of Equality in International and EU Law. In: Amoroso, D., Marotti, L., Rossi, P., Spagnolo, A., Zarra, G. (eds) More Equal than Others?. T.M.C. Asser Press, The Hague. https://doi.org/10.1007/978-94-6265-539-3_1
Download citation
DOI: https://doi.org/10.1007/978-94-6265-539-3_1
Published:
Publisher Name: T.M.C. Asser Press, The Hague
Print ISBN: 978-94-6265-538-6
Online ISBN: 978-94-6265-539-3
eBook Packages: Law and CriminologyLaw and Criminology (R0)