Abstract
The paper assesses how non-discrimination on the grounds of sex, sexual orientation and gender identity is conceived within European Union (EU) external relations and the legal issues it encompasses. An analysis of the multifarious instruments the EU avails itself in shaping its external action makes it clear that the EU approach towards equality is neither holistic nor homogeneous.
The EU promotes gender equality in all fields of its external relations, but action to outlaw discrimination on grounds of sexual orientation and gender identity is limited to accession to the EU and the European Neighbourhood Policy. EU external action to advance equality of women and LGBTIQ persons is suspended in a limbo between the protection of human rights and the economic rationale, which has rooted internal action in non-discrimination. The paper argues that the tension between the two approaches and the inconsistencies in promoting human rights in its external relations have prevented EU external action from eradicating the prejudices and stereotypes regarding discrimination on the grounds of sex, sexual orientation, and gender identity.
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Notes
- 1.
Thies (2020), p. 431.
- 2.
- 3.
Article 208 para. 1. subpara.1 TFEU.
- 4.
Article 214 para. 2 TFEU.
- 5.
Article 207 para. 1 TFEU.
- 6.
- 7.
- 8.
European Commission (2020a), p. 1.
- 9.
European Commission (2020b), p. 1.
- 10.
European Commission (2020k), p. 1.
- 11.
European Commission (2020k), p. 19.
- 12.
- 13.
Directive 2006/54/EC of the European Parliament and 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, (2006), 23–36.
- 14.
Council Directive 79/7/EEC of 19 December 1978 on the progressive implementation of the principle of equal treatment for men and women in matters of social security, OJ L 6, (1979), 24–25.
- 15.
Council Directive 86/378/EEC of 24 July 1986 on the implementation of the principle of equal treatment for men and women in occupational social security schemes, OJ L 225, (1986), 40–42.
- 16.
Council Directive 92/85/EEC of 19 October 1992 on the introduction of measures to encourage improvements in the safety and health at work of pregnant workers and workers who have recently given birth or are breastfeeding (tenth individual Directive within the meaning of Article 16 (1) of Directive 89/391/EEC), OJ L 348, (1992), 1–7.
- 17.
Council Directive 2010/18/EU of 8 March 2010 implementing the revised Framework Agreement on parental leave concluded by BUSINESSEUROPE, UEAPME, CEEP and ETUC and repealing Directive 96/34/EC (Text with EEA relevance), OJ L 68, (2010), 13–20; Directive (EU) 2019/1158 of the European Parliament and of the Council of 20 June 2019 on work-life balance for parents and carers and repealing Council Directive 2010/18/EU, OJ L188, (2019), 79–93.
- 18.
Directive 2010/41/EU of the European Parliament and the Council of 7 July 2010 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, (2010), 1–6.
- 19.
Council Directive 2004/113/EC of 13 December 2004 implementing the principle of equal treatment between men and women in the access to and supply of goods and services, OJ L 373 , (2004), 37–43.
- 20.
Bell and Waddington (2021), p. 1406.
- 21.
Case C-391/09, Malgožata Runevič-Vardyn and Łukasz Paweł Wardyn v. Vilniaus miesto savivaldybès administracija and Others, (ECJ 12 May 2011), para 43; Case C-414/16, Vera Egenberger v Evangelisches Werk für Diakonie und Entwicklung eV (ECJ 17 April 2018), para. 47.
- 22.
Case, C-507/18, NH v Associazione Avvocatura per I diritti LGBTI – Rete Lenford, (ECJ 23 April 2020) para. 38; Case C-555/07, Seda Kücükdeveci v Swedex GmbH & Co. KG., (ECJ 19 Juanuary 2010), para. 21.
- 23.
- 24.
- 25.
Hervey (2005), p. 310.
- 26.
Burri and Prechal (2008), p. 12.
- 27.
Schiek (2007), p. 434.
- 28.
Hervey (2005), p. 310.
- 29.
Weldon-Johns (2021), p. 316.
- 30.
Guth and Elfving (2019), p. 110.
- 31.
Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation, OJ L 303, (2000), 16–22.
- 32.
Directive 2011/95/EU of the European Parliament and of the Council of 13 December 2011 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 (recast), OJ L 337, (2011), 9–26.
- 33.
See footnote 13.
- 34.
The text of the Recital reads as follows: “The Court of Justice has held that the scope of the principle of equal treatment for men and women cannot be confined to the prohibition of discrimination based on the fact that a person is of one or other sex. In view of its purpose and the nature of the rights which it seeks to safeguard, it also applies to discrimination arising from the gender reassignment of a person.”
- 35.
Bell (2012), p. 129 et seq.
- 36.
Council Directive 76/207/EEC of 9 February 1976 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 L 39 (1976), 40–42.
- 37.
Case C-13/94, P v S and Cornwall County Council, (ECJ 30 April 1996), paras. 20–21.
- 38.
Case C-117/01, K.B. v National Health Service Pensions Agency and Secretary of State for Health, (ECJ 7 Juanuary 2004).
- 39.
Case C-423/04, Sarah Margaret Richards v Secretary of State for Work and Pensions, (ECJ 27 April 2006).
- 40.
Case C249/96, Lisa Jacqueline Grant v South-West Trains Ltd, (ECJ 17 February 1998).
- 41.
Joined Cases C-122/99 P and C-125/99 P, D and Kingdom of Sweden v Council of the European Union, (ECJ 31 May 2001).
- 42.
Case C-267/06, Tadao Maruko v Versorgungsanstalt der deutschen Bühnen, (ECJ 1 April 2008), para. 72.
- 43.
Case C- 147/08, Jürgen Römer v Freie und Hansestadt Hamburg, (ECJ 10 May 2011), paras. 42-51.
- 44.
Bell (2012), p. 140.
- 45.
Case C- 528/13, Geoffrey Léger v Ministre des Affaires sociales, de la Santé et des Droits des femmes and Etablissement français du sang, (ECJ 29 April 2015).
- 46.
Guth and Elfving (2019), p. 124.
- 47.
Case C-473/16, F v Bevándorlási és Állampolgársági Hivatal, (ECJ 25 Juanuary 2018), para. 62. The Yogyakarta principles were draft by the International Panel of Experts in International Human Rights Law and on Sexual Orientation and Gender Identity. They are available at yogyakartaprinciples.org.
- 48.
Zagreb Declaration, 6 May 2020, para. 7.
- 49.
- 50.
European Commission (2021b), p. 8.
- 51.
European Commission (2021e), p. 34.
- 52.
- 53.
European Commission (2021c), p. 34. See also European Commission (2021d), p. 31; European Commission (2021e), p. 31; European Commission (2021f), p. 39; European Commission (2021g), p. 38; European Commission (2021h), p. 35; European Commission (2021i), p. 34; European Commission (2020c), p. 36; European Commission (2020d), p. 38; European Commission (2020e), p. 40.
- 54.
European Commission and High Representative of the Union for Foreign Affairs and Security Policy (2020a), p. 15.
- 55.
- 56.
European Commission and High representative of the Union for Foreign Affairs and Security Policy (2018a), pp. 4–5.
- 57.
- 58.
Fortas (2016), p. 361 et seq.
- 59.
- 60.
Partnership Agreement between the members of the African, Caribbean and Pacific Group of States of the one part, and the European Community and its Member States, of the other part, signed in Cotonou on 23 June 2000 OJ L 317, 15.12.2000, p. 3-286. See also art. 8.10 para. 2 (d) of the Comprehensive Economic and Trade Agreement between Canada of the one part and the European Union and its Member States of the other part, OJ L 11,14.1.2017, 23-1079.
- 61.
Framework Agreement on Comprehensive Partnership and Cooperation between the European Union and its Member States of the one part and the Socialist Republic of Viet Nam of the other part, OJ L 329, 3.12.2016, 8-42. See also art 38 h) of the Interim Agreement Establishing a Framework for Economic Partnership between Eastern and Southern African States on one part and the European Community and its Member States on the other part, OJ L 111, 24.4.2012, 3-1172; art. 44 Political Dialogue and Cooperation Agreement between the European Community and its Member States on one side and the Andean Community and its Member Countries (Bolivia, Colombia, Ecuador, Perù and Venezuela) on the other (the agreement has not entered into force – see the Joint Proposal for a Council Decision on the conclusion of a Political Dialogue and Cooperation Agreement between the European Community and its Member States, of the one part, and the Andean Community and its Member Countries (Bolivia, Colombia, Ecuador, Peru and Venezuela), of the other part, JOIN (2016) 4 final, 2016/0025 (NLE).
- 62.
Regulation (EU) No 978/2012 of the European Parliament and of the Council of 25 October 2012 applying a scheme of generalised tariff preferences and repealing Council Regulation (EC) No 732/2008, OJ L 303, 31.10.2012, 1–82.
- 63.
i.e. Association Agreement.
- 64.
European Commission (2021a), p. 5.
- 65.
The text of the initialled agrement is available at: https://ec.europa.eu/international- partnerships/system/files/negotiated-agreement-text-initialled-by-eu-oacps-chief-negotiators-20210415_en.pdf.
- 66.
See Articles 1 (objectives), 2 (principles), 7 (cross-cutting themes), 10 (gender equality), 17 (conflicts and crises), 21 (education), 36 (gender equality and women’s and girl’s empowerment), 77 (global alliances and international cooperation), 80 (areas of international action).
- 67.
It has to be observed that women are the only individuals considered in the provision on education (Artcile 28), and universal access to sexual and reproductive health commodities (Article 29), and human and social development fields (Article 27), and inclusive and sustainable growth (Article 43), and entrepreneurship (Article 45), and trade and sustainable development (Article 49).
- 68.
European Commission (2015a), p. 9.
- 69.
Council of the European Union (2019).
- 70.
United Nations Security Council Resolution 1325 (2000).
- 71.
United Nations Security Council Resolution 1325 (2000).
- 72.
- 73.
European Commission 2015a, para. 2.
- 74.
United Nations General Assembly Resolution (2015).
- 75.
United Nations General Assembly Resolution (2015), para. 3.
- 76.
Council of the European Union (2013).
- 77.
European Commission (2020j), p. 14. A joint European Commission-World Bank roundtable was held on 23 September 2019 within the framework of admission. Furthermore, the EU provided support to the regional LGBTI Equal Rights Association for Western Balkans and Turkey (ERA) conference that took place on 7–9 November 2019 in Albania. Under the ENP meetings with civil society organizations were held at the EU headquartes to promote the rights of LGBTI people. The EU also funded a regional LGBTI conference on 27–29 September 2019 which gathered activists and civil society organisations from the Middle East and North Africa regions. As regards relations with third countries it is worth mentioning the side event to the Commission on the Status of Women (CSW) and the equality of transgender people that was organised in March 2019. The Commission also supported the ILGA Europe Annual LGBTI Conference, which took place in Prague in October 2019. The dialogue that was developed and the assistance to the working of LGBTIQ organisations contributed to the spread of awareness on the problems of the LGBTIQ community, but fighting stereotypes needs radical changes that cannot be brought about by the said initiatives.
- 78.
European Commission (2020b), p. 8.
- 79.
European Commission (2020b), p. 14.
- 80.
- 81.
European Commission (2020k), p. 5–7 .
- 82.
European Commission (2019a), p. 27.
- 83.
- 84.
European Commission (2021g), p. 38.
- 85.
- 86.
European Commission (2015a), p. 9.
- 87.
European Commission and High Representative of the Union for Foreign Affairs and Security Policy (2015a), p. 3.
- 88.
Atrey (2019), p. 78 et seq.
- 89.
European Commission (2020a), p. 4.
- 90.
European Commission (2020a), p. 7.
- 91.
European Commission (2020k), p. 5.
- 92.
- 93.
European Commission (2021d), p. 30.
- 94.
European Commission and High Representative of the Union for Foreign Affairs and Security Policy (2018c), p. 5.
- 95.
On the relationship between sexuality, violence and male power over women see MacKinnon (1987), p. 32 et seq.
- 96.
European Commission (2021g), p. 38.
- 97.
See also the negotiated Partnership Agreement between the EU and members of the Organization of ACP countries establishing cooperation between the Parties with the aim of delivering universal access to sexual and reproductive health-care services within the context of gender equality and empowerment of girls and women (Article 48 para. 7; Article. 29 para. 5, Article 32 para. 2, Article 40 para 6).
- 98.
European Commission (2020b), p. 12.
- 99.
European Commission (2021b), p. 4; European Commission (2020c), p. 91 et seq.; European Commission (2020d), p. 96 et seq.; European Commission (2020f), p. 82 et seq.; European Commission and High Representative of the European Union for Foreign Affairs and Security Policy (2019a), p. 4 et seq.; European Commission and High Representative of the Union for Foreign Affairs and Security Policy (2018b), p. 6; Article 1 para.1 Draft provisions on Trade and Gender Equality in the context of the Modernisation of the EU-Chile Association Agreement; Council of the European Union, (2018a) para. 75; Article 33 of the negotiated Partnership Agreement between the EU and ACP.
- 100.
European Commission (2015a); Article 31 of the Cotonou Agreement; Articles 36 and 45 of the negotiated Partnership Agreement between the EU and ACP; Article 35 of the Interim Agreement between Eastern and Southern African States and the EC; Article 33 of the Agreement between the EU and Viet Nam; Articles 3 and 4 Draft provisions on Trade and Gender Equality in the context of the Modernisation of the EU-Chile Association Agreement; European Commission (2019b), p. 4; European Commission and High Representative of the Union for Foreign Affairs and Security Policy (2015b), p. 6.
- 101.
Article 28 of the negotiated Partnership Agreement between the EU and ACP; Article 4 para 3 (V) Draft provisions on Trade and Gender Equality in the context of the Modernisation of the EU-Chile Association Agreement.
- 102.
- 103.
European Commission (2021g), p. 38.
- 104.
European Commission (2020b), p. 15.
- 105.
European Commission (2021c), p. 10; European Commission (2021d), p. 8; European Commission (2021e), p. 5; European Commission (2021f), p. 12; European Commission (2021g), p. 10; European Commission (2021h), p. 8; European Commission (2021i), p. 9; European Commission (2020e), p. 13 and 39; European Commission (2020h), p. 31-32 .
- 106.
European Commission and High Representative of the Union for Foreign Affairs and Security Policy (2021), p. 4; European Commission and High Representative of the Union for Foreign Affairs and Security Policy (2020b), p. 5; European Commission and High Representative of the Union for Foreign Affairs and Security Policy (2018a), p. 5; European Commission and High Representative of the Union for Foreign Affairs and Security Policy (2018b), p. 6.
- 107.
Council of the European Union (2019), p. 3 et seq.
- 108.
European Commission (2020b), p. 18.
- 109.
- 110.
Article 17 negotiated partnership Agreement between the EU and ACP.
- 111.
European Commission (2020b), pp. 18–19.
- 112.
European Commission (2020b), p. 19.
- 113.
European Commission (2020b), pp. 19–21.
- 114.
European Commission (2020k), p. 20.
- 115.
- 116.
European Commission (2019b), p. 14.
- 117.
European Commission and High Representative of the Union for Foreign Affairs and Security Policy (2017b), p. 5.
- 118.
European Commission (2021e), p. 35.
- 119.
European Commission (2021d), p. 31.
- 120.
European Commission (2021g), p. 39.
- 121.
European Commission (2021e), p. 35.
- 122.
European Commission (2021c), p. 34.
- 123.
European Commission (2021f), p. 40.
- 124.
Thies (2020), p. 429.
- 125.
European Commission (2020b), p. 1.
- 126.
Council of the European Union (2013), paras. 1, 8.
- 127.
- 128.
European Commission (2021f), p. 38.
- 129.
European Commission (2021f), p. 40.
- 130.
- 131.
European Commission (2020b), p. 14.
- 132.
Article 1 of the negotiated Partnership Agreement between the EU and ACP.
- 133.
Article 33 of the negotiated Partnership Agreement between the EU and ACP.
- 134.
Article 36 of the negotiated Partnership Agreement between the EU and ACP.
- 135.
Article 72 of the negotiated Partnership Agreement between the EU and ACP.
- 136.
Article 66 of the negotiated Partnership Agreement between the EU and ACP.
- 137.
See www.spotlightinitiative.org.
- 138.
- 139.
Council of the European Union (2018b).
- 140.
Council of the European Union (2013), para. 10.
- 141.
Recommendation CM/Rec (2010)5 of the Committee of Ministers to member states on Measures to combat discrimination on grounds of sexual orientation or gender identity, adopted without a vote on 31 March 2010.
- 142.
Council of the European Union (2013).
- 143.
European Commission (2020k), p. 20.
- 144.
European Commission (2020d), p. 37; European Commission (2020e), p. 38; European Commission (2020f), p. 32; European Commission (2020i), p. 38 et seq; European Commission (2019b), p. 4; European Commission and High Representative of the Union for Foreign Affairs and Security Policy (2018a), p. 5. European Commission and High Representative of the Union for Foreign Affairs and Security Policy (2015b), p. 6. On the GSP+ see European Commission (2018), p. 92 et seq; Council of the European Union (2013), p. 21 et seq.
- 145.
Garcia (2021), p. 285.
- 146.
- 147.
Thies (2019), p. 81.
- 148.
Thies (2020), p. 448.
- 149.
- 150.
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Evola, M. (2023). The Fight Against Discrimination on the Grounds of Sex, Sexual Orientation and Gender Identity in the External Relations of the European Union. In: Krstić, I., Evola, M., Ribes Moreno, M.I. (eds) Legal Issues of International Law from a Gender Perspective . Gender Perspectives in Law, vol 3. Springer, Cham. https://doi.org/10.1007/978-3-031-13459-3_1
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