Abstract
When we reflect on the strength of gender equality and anti-discrimination legislation in general our thoughts turn to the provisions of the substantive right rather than to those of procedural law. The relationship between protection of women’s rights and judicial procedures is not so immediate, as shown by the development itself of the EU law on gender equality. In fact, first Directives to remove discrimination based on sex in the fields of pay (75/117/ECC), employment (76/207/EEC), social security (79/7/EEC) and protection of pregnant workers (92/85/EEC), only required Member States to adopt into their legal system “such measures as are necessary to enable all person… to pursue their claims by judicial process”. From this starting point, crucial importance of procedural mechanisms to ensure gender equality emerged soon, in fact it is in the practical implementation of the rights conferred that any regulatory weaknesses or gaps appear, and as such impair the effective legal protection. Women affected by discrimination are in a weaker position in legal proceedings against the abuser, especially if the perpetrator of unlawful discrimination is their employer.
It is absolutely necessary to enforce appropriate procedural rules, aimed at achieving equality of conditions in civil proceedings in order to facilitate the legal protection of the right to equal treatment between men and women. This is evidenced by the case law of the EU Court of Justice (CJEU) addressing a variety of procedural issues arising from proceedings before national courts, despite the initial absence in the directives as regards rules on procedure and the principle of procedural autonomy of the EU Member States. As a result of the Court’s rulings, the existing directives on equal treatment for men and women contain certain rules on, legal standing, burden of proof, sanctions and remedies.
The paper is designed with intention to provide an overview of procedural provisions laid down in Directives 2006/54/EC and 2004/113/EC, reflecting on procedural measures which may be taken or interpretation which may be given in order to increase the effectiveness of equality right.
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Notes
- 1.
The fundamental principle of equality between men and women provided for by Article 2 of the EC Treaty and now by Article 3, par. 3, TEU. In accordance with the aforesaid provision, the EU has to promote substantial equality between women and men. See, among others Fredman (2003), pp. 111–118.
- 2.
Compilation of case law of the European Court of Human Rights on Gender Equality Issues, Gender Equality Division, DG II, 2019, https://rm.coe.int/compilation-echr-case-law-1-august-2019/168096d977.
- 3.
Compilation of caselaw on the equality of treatment between women and men and on non-discrimination in the European Union, 2010, European Commission. Directorate-General for Employment and Social Affairs, Union européenne, https://op.europa.eu/en/publication-detail/-/publication/e8711e0f-767c-466e-9fae-325dd6d2544f.
- 4.
Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee and the Committee of the Regions. A Union of Equality: Gender Equality Strategy 2020-2025, Directorate-General for Justice and Consumers (European Commission), European Commission, 5.3.2020, https://op.europa.eu/en/publication-detail/-/publication/4ed128c0-5ec5-11ea-b735-01aa75ed71a1/language-en.
- 5.
Council Directive 75/117/EEC of 10 February 1975 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 L 45, 19.2.1975, 19–20. The Directive is no longer in force. 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, 14.2.1976, p. 40–42, no longer in force. 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, 10.1.1979, 24–25, in force.
- 6.
On this subject, see Wladash (2020), p. 235.
- 7.
On this subject, among others, Biavati (2000), p. 717 ff.
- 8.
It is worth noting that the notion of procedural law has to be understood in a broad sense, on this point Galetta (2010), p. 2.
- 9.
On the development of the EU competence in the field of civil procedural law, see Gascón Inchausti (2018), p. 16, who observes that “the European Union allows for the fact that a well-functioning legal system is a factor of stability and economic growth, which contributes to the better development of the single market. However, the EU has clearly chosen not to abide by it in its legislative action, as evidenced by its effective exercise of regulatory powers that are categorically unrelated to the strictly patrimonial and/or commercial field” (author’s translation); see also Alonso García (2014), p. 104 ff.
- 10.
- 11.
See, judgment of the CJEU of 16 December 1976, Case 33/76, Rewe- Zentral AG v Landwirtschaftskammer für das Saarland, European Court reports 1976, p. 1989, para. 5. In the same vein, Court of Justice, Comet BV-Produktschap voor Siergewassen, Judgment of 16 December 1976, Case 45/76, Reports 1976, p. 2043, para. 12 to 16; Commission of the European Communities v Italian Republic, Judgment of 24 March 1988, Case 104/86, Reports p. 1799, para 7; Francovich and Others v Italian Republic, Judgment of 19 November 1991, Joined cases C-6/90 and C-9/90, Reports 1991 p. 5357, para. 43.
- 12.
For an interesting analysis of the most important CJEU’s jurisprudence on the national procedural autonomy, Galetta (2010), p. 33 ff.
- 13.
Rewe, para. 5; see also Judgment of the Court of 16 December 1976 and Judgment of 1 December 1998, concerning remuneration rates not paid by reason of discrimination on grounds of sex, C-45/76, Comet v Produktschap voor Siergewassen [1976] ECR 2043, paras. 13 and 16; C-326/96, B.S. Levez v T.H. Jennings (Harlow Pools) Lt, para 18.
- 14.
Rewe, para. 5. The Court of Justice has regularly reiterated the reasoning expressed in Rewe, see for instance C-432/05, Ltd e Unibet (International) Ltd c. Justitiekanslern, 13 march 2007, para. 44.
- 15.
Biavati (1999), p. 399 ff.
- 16.
- 17.
See Arnull (2011), p. 64.
- 18.
See Article 2 of Council Directive 75/117/EEC of 10 February 1975 on the approximation of the laws of the Member States relating to the application of the principle of equal pay for men and women; Articles 6 e 7 of the 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; Article 6 of 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.
- 19.
See Judgment of the CJEU of 15 May 1986, Marguerite Johnston v Chief Constable of the Royal Ulster Constabulary, case 222/8414, ECLI:EU:C:1986:206, paras. 17-20, where in relation to the provision on evidence laid down in the Sex Discrimination Order (Northern Ireland) the Court pointed out that Member States must take measures “sufficiently effective to achieve the aim of the directive and that they must ensure that the rights thus conferred may be effectively relied upon before the national courts by the persons concerned equality between women and men in the workplace”. The Court therefore holds that Article 53 of the Sex Discrimination Order is contrary to the principle of effective judicial control laid down in Article 6 of the directive 76/207/EEC, which “does not allow a certificate issued by a national authority stating that the conditions for derogating from the principle of equal treatment for men and women for the purposes of protecting public safety are satisfied to be treated as conclusive evidence so as to exclude the exercise of any power of review by the courts”.
- 20.
Kilpatrick (2001), p. 149 ff.
- 21.
Case 14/83, Von Colson and Kamann v Land Nordrhein, (CJEU 10 April 1984), paras. 15–18.
- 22.
Kilpatrick (2001), p. 150.
- 23.
Von Colson and Kamann v Land Nordrhein, para. 23.
- 24.
Case 222/8414, Marguerite Johnston v Chief Constable of the Royal Ulster Constabulary, paras. 17–19.
- 25.
See case Unibet, C-432/05, Ltd e Unibet (International) Ltd c. Justitiekanslern, para. 67, where the CJEU held that the national courts “must be in a position to grant interim relief in order to ensure the full effectiveness of the judgment to be given on the existence of the rights claimed under Community law”; see also Judgment of the Court of 19 June 1990, Factortame Ltd and others, C-213/89, para. 21.
- 26.
In this regard, see the report conducted by the European Union Agency for Fundamental Rights, Access to justice in cases of discrimination in the EU. Steps to further equality, 2012.
- 27.
Although Article 6 ECHR does not expressly state the right of access to justice, according to well-established case law of the European Court of Human Rights since the Case of Golder v. the United Kingdom (EctHR, 21 February 1975, Application no. 4451/70), it is deemed to be an element which is inherent in the right to a fair trial, stated by Article 6 para. 1. In that regard, the Court considers that “Article 6 para. 1 secures to everyone the right to have any claim relating to his civil rights and obligations brought before a court or tribunal. In this way the Article embodies the “right to a court”, of which the right of access, that is the right to institute proceedings before courts in civil matters, constitutes one aspect only. To this are added the guarantees laid down by Article 6 para. 1 (art. 6-1) as regards both the organisation and composition of the court, and the conduct of the proceedings. In sum, the whole makes up the right to a fair hearing” (para. 36).
- 28.
In this sense, see for instance judgment of 16 December 1992, De Geouffre de la Pradelle v France, 12964/87, where the Strasbourg Court stated that if the law governing the access to court is not sufficiently coherent and clear, the access to justice cannot be regarded as effective (paras. 33–34).
- 29.
Under the Italian law, pursuant to Article 28 of the Legislative Decree 150/2011, the legal representation by a lawyer in civil proceedings concerning discrimination is not compulsory, litigants can bring a court action by themselves, see footnote 40. According to the Greek law, as a general rule, the action must be brought by a lawyer. However, there are certain procedures, e.g. provisional remedies, minor disputes, labour disputes, in which a person may appear on their own behalf. In the Spanish legal system, according to Article 31 of the Spanish Code of Civil Procedure, as a general rule the litigants shall be counselled by lawyers, except where the claim does not exceed 2.000 euros or where a party applies for urgent measures prior to initiating legal proceedings.
- 30.
On legal aid, see EctHR Airey v. Ireland, 9 october 1979.
- 31.
The UN Committee on the Elimination of Discrimination against women (CEDAW) on 23 July 2015 has adopted a general recommendation on women’s access to justice.
- 32.
On the other hand, the rule according to which the party, even if they win a case, they are under a legal obligation to pay court costs and lawyer’s fees, can prevent from taking legal action, in particular in case of small claims litigation.
- 33.
Council Directive 2000/43/EC of 29 June 2000 implementing the principle of equal treatment between persons irrespective of racial or ethnic origin, OJ L180/22; Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation, OJ L303/16.
- 34.
In this regard, among others, Xenedis (2018), p. 41 ff.
- 35.
- 36.
Case C-443/15, David L. Parris v. Trinity College Dublin and Others, judgment of 24 November 2016, ECLI:EU:C:2016:897, Opinion of AG Kokott, ECLI:EU:C:2016:493, paras. 149-151. For an overview of the cases invoking multiple discrimination brough before the Court of Justice, Xenedis (2018), p. 60.
- 37.
Aware of the issue of multiple and intersectional discrimination, even where those terms are absent. See e.g., ECtHR, case 29518/10, N.B. v. Slovakia, 12 june 2012; case 47159/08, B.S. v. Spain, 24 July 2012; case 43835/11, S.A.S. v. France, 1 July 2014; case 17484/15, Carvalho Pinto de Sousa Morais v. Portugal, 25 July 2017.
- 38.
The term “Intersectional discrimination” refers to “a situation where several grounds operate and interact with each other at the same time in such a way that they are inseparable”, see FRA (2018) Handbook on European non-discrimination law, 60.
- 39.
The Italian law contains an implicit reference to multiple discrimination in Article 1 of the Legislative Decree 216/2003, implemented Directive 2000/78, which provides that the decree ‘lays down the provisions relating to the implementation of equal treatment between persons irrespective of religion or belief, disability, age, or sexual orientation, as regards employment and occupation, establishing the necessary measures to ensure that there is no discrimination on those grounds, taking account also of the different consequences that those forms of discrimination may have for women and men’. The Legislative Decree 215/2003, transposing Directive 2000/43, in a similar way, stated that the Decree has been adopted ‘in a perspective that takes into account the different impact that the same forms of discrimination can have on men and women respectively’.
- 40.
In order to tackle the problem of multiple discrimination, a considerable amount of reports and research studies have been conducted, among others, Bielefeldt (2007); European Union Agency for Fundamental Rights FRA (2011), Data in Focus Report-Multiple Discrimination European; European Union Agency for Fundamental Rights FRA (2018), Inequalities and multiple discrimination in access to and quality of healthcare; Hudson (2012); Fredman (2016); Crowley (2016); Kim et al. (2020), pp. 715–737.
- 41.
For example, according the Italian anti-discrimination law (Article 28 of Legislative Decree 150/2011), legal representation is not compulsory for proceedings at first instance concerning discrimination based on sex in access to and the supply of goods and services, within the field of employment for discrimination based on religion and belief, sexual orientation, disability, age, race and ethnic origin in the fields covered by Directive 2000/43/EC. Whereas representation by a lawyer is mandatory in discrimination litigation on the ground of sex in matters of employment and occupation. It is a legal discrepancy, from my point of view, due to the proliferation of laws on discrimination over the years and their lack of coordination.
- 42.
Article 8.3, 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, 21.12.2004, 37–41.
- 43.
Article 17.2, 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 L204, 26.7.2006, 23–36.
- 44.
Associations may engage in proceedings in the name of a complainant against the alleged perpetrator of discrimination (in this case, they must be authorized by the victim), or may participate and support the victim as third part to asafeguard the interests of the victim. The cessation of discriminatory act or behaviour is in their interest since they have the purpose to promote and protect the principle of equality with reference to factors which can be a source of discrimination.
- 45.
The same provision is contained in the Directive 2010/41/EU (Article 9.2) of the European Parliament and of 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, 15.7.2010, 1–6.
- 46.
The same procedural mechanism works in the field of consumer protection. The Italian Consumer Code (Legislative Decree 6 September 2005 n. 206) allows consumer associations most representative at national level, bring claims, even where a victim cannot be identified. See Di Salvo (2011).
- 47.
Centrum voor gelijkheid van kansen en voor racismebestrijding vs Firma Feryn NV, C-54/07, ECLI:EU:C:2008:397. See also Asociaţia Accept v Consiliul Naţional pentru Combaterea Discriminării, C-81/12, 25 April 2013, EU:C:2013:275, paras. 62–63.
- 48.
NH v Associazione Avvocatura per i diritti LGBTI – Rete Lenford, C-507/18, ECLI:EU:C:2020:289. The case concerns statements made in a radio programme by a well-known Italian lawyer, who declared that he would never employ a homosexual person in his law firm, and specifying that he makes “a careful selection to make sure that this does not happen”. Therefore, the association “Advocacy for LGBTI rights” sued the lawyer for discrimination, and it won the case both at the Court of first instance and at the Court of appeal. In the view of the Italian Court, the appellant expressed, publicly, a discriminatory recruitment policy and they are statements which can dissuade candidates, belonging to the category of persons, from submitting their candidacy to his law firm and that certainly impeded access to employment or made it more difficult.
- 49.
Di Salvo (2016), p. 225 ff.
- 50.
In the Case C-381/99, Brunnhofer v. Bank der österreichischen Postsparkasse AG, judgment of 26 june, 2001, ECLI:EU:C:2001:171, with regard to a differential pay the CJEU ruled that “a difference in pay is capable of being justified by circumstances not taken into consideration under the collective agreement applicable to the employees concerned, provided that they constitute objective reasons unrelated to any discrimination based on sex and in conformity with the principle of proportionality”. However, the different pay awarded “for the same work on the basis of factors such as the particular aptitude of a given worker cannot be justified by factors which become known only after the employees concerned take up their duties”.
- 51.
Case 109/88, Handels- og Kontorfunktionærernes Forbund I Danmark v Dansk Arbejdsgiverforening, acting on behalf of Danfoss, judgment of 17 october 1989, ECLI:EU:C:1989:383, p. 3199, paras. 13–14.
- 52.
Case C-127/92, Dr. Pamela Mary Enderby v Frenchay Health Authority and Secretary of State for Health, judgment of the Court of 27 October 1993, ECLI:EU:C:1993:859, p. 535, para. 19.
- 53.
Council Directive 97/80/EC of 15 December 1997 on the burden of proof in cases of discrimination based on sex, OJ L 014, 20.1.1998, pp. 6–8.
- 54.
On the proof of discrimination in EU directives, see Ormazabal Sánchez (2011), p. 77.
- 55.
The rule shall not applied to proceedings in which it is for the court or other competent national body to investigate the facts.
- 56.
Over the years, the Court of Justice, through request for a preliminary ruling under Article 267 TFEU, issued relevant judgments relating to the burden of proof; see Centrum voor gelijkheid van kansen en voor racismebestrijding v Firma Feryn NV, C. 54/07, where it was stated that a public statement by an employer, who declares that he will not recruit employees of a certain ethnic or racial origin, may constitute a presumption of existence of discriminatory recruitment policy. The Court observed that, in accordance with EU provisions, the employer has to adduce evidence to the contrary that it has not breached the principle of equal treatment, which can be done, inter alia, by showing that the actual recruitment practice of the company does not correspond to the statement. See also, Bundesarbeitsgericht (Germany) lodged on 20 August 2010 - Galina Meister v Speech Design Carrier Systems C-415/10; Kelly v National University of Ireland (C-104/10), Asociaţia ACCEPT contro Consiliul Naţional pentru Combaterea Discriminării (C-81/12).
- 57.
See the report by Farkas (2014).
- 58.
Case 109/88, Handels- og Kontorfunktionærernes Forbund I Danmark v Dansk Arbejdsgiverforening, acting on behalf of Danfoss, para. 13.
- 59.
That is the level of prima facie case of discrimination required by the Italian courts. In this sense, the recent decision of the italian Supreme Court of Cassation concerning a case of discrimination based on sex, Corte di Cassazione, Sezione Lavoro, in Order No 20253/2021 of 15th July 2021, according to which it is only when the plaintiff provides the court with precise and concordant facts showing the presumptions of discriminatory acts, agreements or conduct on the grounds of sex that the defendant has to prove that discrimination did not take place.
- 60.
It should be noted that Gender Equality Plans (GEP) of unversities are valuable instruments both to promote gender balance in the field of research and to have data gender-sensitive collection in recruitment and career progression.
- 61.
Case C-274/18, Judgment of the Court 3 October 2019. Minoo Schuch-Ghannadan vs Medizinische Universität Wien, OJ C, C/413, 09.12.2019.
- 62.
See Minoo Schuch-Ghannadan vs Medizinische Universität Wien, paras 56–57.
- 63.
On the enforcement of judicial decisions concerning sex discrimination, see Judgment of the EctHR, 19 February 2013, Garcia Mateos v. Spain, no. 38285/09, where the Court found a violation of Article 6 in conjunction with Article 14 of the European Convention on Human Rights.
- 64.
Similar provision is laid down in Article 8.2 of Directive 2004/113/EC on equal treatment between men and women in the access to and supply of goods and services, which states that “Member States shall introduce into their national legal systems such measures as are necessary to ensure real and effective compensation or reparation, as the Member States so determine, for the loss and damage sustained by a person injured as a result of discrimination within the meaning of this Directive, in a way which is dissuasive and proportionate to the damage suffered. The fixing of a prior upper limit shall not restrict such compensation or reparation”. The previous Directive 76/207/EEC instead does not contain a provision corresponding to Article 18.
- 65.
Von Colson, para. 28.
- 66.
C-507/18, NH v Associazione Avvocatura per i diritti LGBTI – Rete Lenford, para. 64; C-81/12, Asociaţia Accept v Consiliul Naţional pentru Combaterea Discriminării, paras. 63–64.
- 67.
- 68.
Case 14/83, Von Colson, para 26.
- 69.
See, e.g. Court of Justice, Factortame Ltd and others, case C-213/89, 19 June 1990, EU:C:1990:257; Peterbroeck, Van Campenhout & Cie SCS v Belgian State, case C-312/93, 14 December 1995, EU:C:1995:437.
- 70.
C-432-/05, Ltd e Unibet (International) Ltd c. Justitiekanslern, 13 march 2007, para. 44.
- 71.
On this subject, Santangeli (2018), p. 541 ff.
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Di Salvo, C. (2023). Gender Discrimination: Procedural Issues Between Procedural Autonomy, EU Provisions and Effectiveness of Judicial Protection. In: Carapezza Figlia, G., Kovačević, L., Kristoffersson, E. (eds) Gender Perspectives in Private Law. Gender Perspectives in Law, vol 4. Springer, Cham. https://doi.org/10.1007/978-3-031-14092-1_10
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