Professional Documents
Culture Documents
Eu Equality Law The First Fundamental Rights Policy Of The Eu Oxford Studies In European Law Elise Muir full chapter pdf docx
Eu Equality Law The First Fundamental Rights Policy Of The Eu Oxford Studies In European Law Elise Muir full chapter pdf docx
https://ebookmass.com/product/eu-law-beyond-eu-borders-the-
extraterritorial-reach-of-eu-law-joanne-scott/
https://ebookmass.com/product/eu-law-beyond-eu-borders-the-
extraterritorial-reach-of-eu-law-marise-cremona-editor/
https://ebookmass.com/product/eu-procedural-law-oxford-european-
union-law-library-2nd-edition-koen-lenaerts/
https://ebookmass.com/product/eu-health-law-policy-the-expansion-
of-eu-power-in-public-health-and-health-care-1st-edition-anniek-
de-ruijter/
EU Constitutional Law Koen Lenaerts
https://ebookmass.com/product/eu-constitutional-law-koen-
lenaerts/
https://ebookmass.com/product/the-eu-treaties-and-the-charter-of-
fundamental-rights-a-commentary-manuel-kellerbauer/
https://ebookmass.com/product/the-evolution-of-eu-law-3rd-
edition-paul-craig/
https://ebookmass.com/product/the-evolution-of-eu-law-3rd-
edition-paul-craig-editor/
https://ebookmass.com/product/eu-administrative-law-3rd-edition-
paul-craig/
i
OX F O R D S T U D I E S I N E U RO P E A N L AW
Series Editors
PAU L C R A I G
Professor of English Law at St John’s College, Oxford
G R Á I N N E D E B Ú RC A
Professor of Law at New York University School of Law
EU Equality Law
EU Equality Law: The First Fundamental Rights Policy of the EU. Elise Muir © Elise Muir 2018. Published
2018 by Oxford University Press.
ii
OX F O R D S T U D I E S I N E U RO P E A N L AW
Series Editors:
Paul Craig, Professor of English Law at St John’s College, Oxford and
Gráinne de Búrca, Professor of Law at New York University School of Law
The aim of this series is to publish important and original research on EU law.
The focus is on scholarly monographs, with a particular emphasis on those
which are interdisciplinary in nature. Edited collections of essays will also be
included where they are appropriate. The series is wide in scope and aims to
cover studies of particular areas of substantive and of institutional law, historical
works, theoretical studies, and analyses of current debates, as well as questions
of perennial interest such as the relationship between national and EU law and
the novel forms of governance emerging in and beyond Europe. The fact that
many of the works are interdisciplinary will make the series of interest to all
those concerned with the governance and operation of the EU.
EU Equality Law
The First Fundamental Rights Policy of the EU
ELISE MUIR
Associate Professor of EU Law, and head of the Institute for
European Law, KU Leuven
1
iv
1
Great Clarendon Street, Oxford, OX2 6DP,
United Kingdom
Oxford University Press is a department of the University of Oxford.
It furthers the University’s objective of excellence in research, scholarship,
and education by publishing worldwide. Oxford is a registered trade mark of
Oxford University Press in the UK and in certain other countries
© Elise Muir 2018
The moral rights of the author have been asserted
First Edition published in 2018
Impression: 1
All rights reserved. No part of this publication may be reproduced, stored in
a retrieval system, or transmitted, in any form or by any means, without the
prior permission in writing of Oxford University Press, or as expressly permitted
by law, by licence or under terms agreed with the appropriate reprographics
rights organization. Enquiries concerning reproduction outside the scope of the
above should be sent to the Rights Department, Oxford University Press, at the
address above
You must not circulate this work in any other form
and you must impose this same condition on any acquirer
Crown copyright material is reproduced under Class Licence
Number C01P0000148 with the permission of OPSI
and the Queen’s Printer for Scotland
Published in the United States of America by Oxford University Press
198 Madison Avenue, New York, NY 10016, United States of America
British Library Cataloguing in Publication Data
Data available
Library of Congress Control Number: 2018949655
ISBN 978–0–19–881466–5
Printed and bound by
CPI Group (UK) Ltd, Croydon, CR0 4YY
Links to third party websites are provided by Oxford in good faith and
for information only. Oxford disclaims any responsibility for the materials
contained in any third party website referenced in this work.
v
EU Equality Law: The First Fundamental Rights Policy of the EU. Elise Muir © Elise Muir 2018. Published
2018 by Oxford University Press.
vi
Almost two decades after the EU Charter of Fundamental Rights gained binding
force, Elise Muir’s book revisits the question whether and to what extent the EU
has an autonomous human rights policy. Muir does so through an analysis of EU
Equality law, which she argues has become the EU’s first fundamental rights policy.
Contrasting EU equality law and policy with other areas of EU policy such as
data protection, which has strong fundamental rights implications, she argues that
equality law and policy is different in that it is a human rights policy with its own in-
dependent legal basis, its own set of tools and instruments, and is intended to realize
specific fundamental rights rather than being part of another EU policy. She notes
the application of this area of law to both the public and the private sphere, which
she labels the ‘infrastructural’ and ‘transformative’ dimensions.
Muir cautions against the over-constitutionalization of EU equality law, in the
sense of tying its development and shape too closely to the EU treaties rather than
permitting the policy to be more flexibly developed and adapted. She argues that
some of the cases in which the Court has interpreted the constitutional contours of
EU equality law, in the shape of Treaty and Charter provisions and constitutional
principles, have established powerful supranational interventions into controversial
areas of domestic policy touching on important and nationally sensitive values, and
that EU legislative rather than constitutional guidance in such fields may be more
advisable.
Later chapters of the book examine the legislative process in the making of EU
equality law, and the use of other tools to shape and promote it. Chapter V con-
tains an interesting analysis of governance and enforcement within EU equality
law, including a comparison between the emerging fundamental rights fields of EU
data protection and equality law, noting in particular the difference in the way the
independent national enforcement authorities within these two fields are treated.
Indeed, a recurrent theme of the book is the importance of stimulating and sup-
porting legal innovation at the domestic level in the field of EU equality law, rather
than too much prescriptive intervention ‘from above’.
Overall, the book is an intelligent and welcome addition to the existing literature
on EU equality law, updating and providing some fresh perspectives on this im-
portant and constantly growing field, and will appeal to all those who are interested
in EU human rights, equality and non-discrimination law and policy.
Paul Craig and Gráinne de Búrca
EU Equality Law: The First Fundamental Rights Policy of the EU. Elise Muir © Elise Muir 2018. Published
2018 by Oxford University Press.
ix
Acknowledgements
This book is the outcome of a research project financed by the Veni programme of
the Netherlands Organisation for Scientific Research (NWO) and hosted by the
Faculty of Law of the University of Maastricht between 2013 and 2017. I am most
grateful to both organizations for making it possible to write this monograph.
I owe special thanks to a number of individuals who have had a direct impact on
the content of the book. Mark Dawson gave me the appetite for a second mono-
graph and patiently read early chapters. Bruno de Witte, Marco Dani, and two
anonymous reviewers provided most valuable comments on aspects of the project
with which I had particular difficulties. Sacha Garben, Gillian More, and Katrien
Meuwissen have very kindly and equally helpfully shared their views on specific
sections. I am also indebted to the members of the Maastricht Centre for European
Law and to the members of the 2017 Edition of the Czech Mountain Seminar who
have spent time and energy reflecting along with me on draft chapters.
This manuscript would never have gone to press without the support of family and
friends. To begin with my academic family: Monica Claes, Mark Dawson, Mariolina
Eliantonio, Sacha Garben, Inge Govaere, Dominik Hanf, Claire Kilpatrick, Anne
Pieter van der Mei, Síofra O’Leary, Cristophe Radé, Séverine Saintier, Hildegard
Schneider, Takis Tridimas, Christian Valèze, Ellen Vos, Lisa Waddington, and
Bruno de Witte have provided healthy, caring, and stimulating intellectual homes
for the early stages of my academic life. I feel privileged to have received their sup-
port and words of advice.
This is as well as, of course, the friends of yesterday and tomorrow, Magali,
Estelle, Tristan, and Michaël, who are always available for a chat. My parents, with
their indefectible trust. My brothers, so warmly different and thereby so comple-
mentary to me. My grandparents, Geneviève, Jean-Luc, Hélène, Pierre and Marie-
Pierre, and Annie, acting affectionate intellectual compasses.
This book is dedicated to Amélie, Hania, and Pawel. Amélie and Hania were born
during and grew up alongside this project; their presence strengthened my deter-
mination to write this book. As for Pawel, he is behind each and every page.
EU Equality Law: The First Fundamental Rights Policy of the EU. Elise Muir © Elise Muir 2018. Published
2018 by Oxford University Press.
xvi
Table of Cases
Abrahamsson See Katarina Abrahamsson and Leif Anderson v Elisabet Fogelqvist
Accession by the Community to the European Convention for the Protection of Human
Rights and Fundamental Freedoms [1996] ECLI:EU:C:1996:140 . . . . . . . . . . . . . . . . . . . . . 63
Accession of the European Union to the European Convention for the Protection of Human
Rights and Fundamental Freedoms [2014] ECLI:EU:C:2014:2454 . . . . . . . . . . . . . . . . . . . . 63
Achbita See Samira Achbita and Centrum voor Gelijkheid van Kansen
en voor Racismebestrijding v G4S Secure Solutions NV
Åklagaren v Hans Åkerberg Fransson [2013] ECLI:EU:C:2013:105. . . . . . . . . . . . . . . . . . . 4, 51, 66
Albert Ruckdeschel & Co and Hansa Lagerhaus Ströh & Co v Hauptzollamt Hamburg-St
Annen; Diamalt AG v Hauptzollamt Itzehoe [1977] ECLI:EU:C:1977:160. . . . . . . . . . . . 4, 62
Alimanovic See Jobcenter Berlin Neukölln v Nazifa Alimanovic and others
Alpine Investments BV v Minister van Financiën [1995] ECLI:EU:C:1995:126. . . . . . . . . . . . . . . 70
AMS See Association de médiation sociale v Union locale des syndicats CGT and others
Ana de Diego Porras v Ministerio de Defensa [2016] ECLI:EU:C:2016:683. . . . . . . . . 127, 128, 131
Angonese See Roman Angonese v Cassa di Risparmio di Bolzano SpA
António Fernando Maio Marques da Rosa v Varzim Sol—Turismo, Jogo e Animação, SA
[2017] ECLI:EU:C:2017:844 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 114
Antonio Muñoz y Cia SA and Superior Fruiticola SA v Frumar Ltd and Redbridge Produce
Marketing Ltd [2002] ECLI:EU:C:2002:497. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 139
Asma Bougnaoui and Association de Défense des Droits de l’Homme (ADDH) v Micropole
SA [2017] ECLI:EU:C:2017:204. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
Asociaţia Accept v Consiliul Naţional pentru Combatere a Discriminării [2013]
ECLI:EU:C:2013:275. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 154
Association Belge des Consommateurs Test-Achats ASBL and others v Conseil des ministres
[2011] ECLI:EU:C:2011:100 . . . . . . . . . . . . . . . . . . . . . . . . 2, 32, 35, 87, 96–8, 105, 106, 140
Association de médiation sociale v Union locale des syndicats CGT and others [2014]
ECLI:EU:C:2014:2. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11, 83, 113–16, 118, 130, 141
Athanasios Vatsouras and Josif Koupatantze v Arbeitsgemeinschaft (ARGE) Nürnberg 900
[2009] ECLI:EU:C:2009:344 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 134
Audiolux SA e.a v Groupe Bruxelles Lambert SA (GBL) and others and Bertelsmann AG and
others (Case C-101/08) [2009] ECLI:EU:C:2009:626. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 112
Auditeur du travail v Yangwei SPRL [2011] ECLI:EU:C:2011:826. . . . . . . . . . . . . . . . . . . . 127, 128
Autorità per le Garanzienelle Comunicazioni v Istituto Nazionale di Statistica—ISTAT and
others [2016] ECLI:EU:C:2016:608 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 195
Barber See Douglas Harvey Barber v Guardian Royal Exchange Assurance Group
Baumbast and R v Secretary of State for the Home Department [2002] ECLI:EU:C:2002:493. . . . 69
BECTU (Case C-173/99) [2001] ECR I-488. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 141
Belinda Jane Coote v Granada Hospitality Ltd [1998] ECLI:EU:C:1998:424. . . . . . . . . . . . 149, 152
Belov See Valeri Hariev Belov v CHEZ Elektro Balgaria AD and others
Betriebsrat der Ruhrlandklinik GmbH v Ruhrlandklinik GmbH [2016]
ECLI:EU:C:2016:883. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 126, 127
Bilka-Kaufhaus GmbH v Karin Weber von Hartz [1986] ECLI:EU:C:1986:204. . . . . . . . . . . . . . . 89
BNO Walrave and LJN Koch v Association Union cycliste international, Koninklijke
Nederlandsche Wielren Unie and Federación Espanola Ciclismo [1974]
ECLI:EU:C:1974:140. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8, 80
EU Equality Law: The First Fundamental Rights Policy of the EU. Elise Muir © Elise Muir 2018. Published
2018 by Oxford University Press.
xvi
Dai Cugini NV v Rijksdienst voor Sociale Zekerheid [2011] ECLI:EU:C:2011:223. . . . . . . . 127, 128, 132
Danfoss A/S and Sauer-DanfossApS v Skatteministeriet [1989] ECLI:EU:C:1989:383. . . . . . . . . 149
Dano See Elisabeta Dano and Florin Dano v Jobcenter Leipzig
Dansk Industri (DI), acting on behalf of Ajos A/S v Estate of Karsten Eigil Rasmussen [2016]
ECLI:EU:C:2016:278. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 35, 83, 85, 86, 116, 202
David L Parris v Trinity College Dublin and others [2016] ECLI:EU:C:2016:897. . . . . . . . . . . . . . 98
David Montoya Medina v Fondo de Garantía Salarial et Universidad de Alicante [2011]
ECLI:EU:C:2011:167. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 126
Defrenne II See Gabrielle Defrenne v Société anonyme belge de navigation aérienne Sabena
Del Cerro Alonso See Yolanda Del Cerro Alonso v Osakidetza-Servicio Vasco de Salud
Delège and Lehtonen (Cases C-51/96 &176/96) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 159
Deutsche Post AG v Elisabeth Sievers and Brunhilde Schrage [2000] ECLI:EU:C:2000:76. . . . 10, 77
Deutsche Telekom AG v Lilli Schröder[2000] ECLI:EU:C:2000:72. . . . . . . . . . . . . . . . . . . 8, 10, 77
Dieter Kraus v Land Baden-Württemberg [1993] ECLI:EU:C:1993:125 . . . . . . . . . . . . . . . . 70, 158
Digital Rights Ireland Ltd v Minister for Communications, Marine and Natural Resources
and others and Kärtner Landesregierung and others [2014] ECLI:EU:C:2014:238. . . . . . . . . 75
Digital Rights Ireland Ltd v Minister for Communications, Marine and Natural Resources and
others and Kärntner Landesregierung and others [2014] ECLI:EU:C:2014:238. . . . . . . . . . 139
Dominguez See Maribel Dominguez v Centre informatique du
Centre Ouest Atlantique and Préfet de la région Centre
Dorsch Consult Ingenieurgesellschaft mbH v Bundesbaugesellschaft Berlin mbH [1997]
ECLI:EU:C:1997:413. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 188
xi
Fenoll See Gérard Fenoll v Centre d’aide par le travail ‘La Jouvene’ and Association
de parents et d’amis de personnes handicapées mentales (APEI) d’Avignon
Feryn See Centrum voor Gelijkheid van Kansen en voor Racismebestrijding v Firma Feryn NV
Flaminio Costa v ENEL [1964] ECLI:EU:C:1964:66. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
FMC plc, FMC (Meat) Ltd, DT Duggins Ltd, Marshall (Lamberhurst) Ltd, Montelupo Ltd
and North Devon Meat Ltd v Intervention Board of Agricultural Produce and Ministry
of Agriculture, Fisheries and Food [1996] ECLI:EU:C:1996:40 . . . . . . . . . . . . . . . . . . . . . . 153
Francisco Javier Rosado Santana v Consejería de Justicia y Administración Pública de la Junta
de Andalucía [2011] ECLI:EU:C:2011:557. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 126–8
Fransson See Åklagaren v Hans Åkerberg Fransson
Frédéric Hay v Crédit Agricole Mutuel de Charente-Maritime et des DeuxSèvres [2013]
ECLI:EU:C:2013:823. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62, 173
Fries See Werner Fries v Lufthansa City Line GmbH
xx Table of Cases
Handels-og Kontorfunktionærernes Forbund I Danmark v Dansk Arbejdsgiverforening,
acting on behalf of Danfoss [1989] ECLI:EU:C:1989:38 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 70
Hay See Frédéric Hay v Crédit agricole mutuel de Charente-Maritime et des Deux-Sèvres
Helmut Marschall v Land Nordrhein-Westfalen [1997] ECLI:EU:C:1997:533. . . . . . . . . . . . . . . . 92
HK Danmark, acting on behalf of Jette Ring v Dansk almennyttigt Boligselskab and HK
Danmark, acting on behalf of Lone Skouboe Werge v Dansk Arbejdsgiverforening, acting
on behalf of Pro Display A/S [2013] ECLI:EU:C:2013:222 . . . . . . . . . . . . . . . . . . . . . . . . . . 65
HK Danmark, acting on behalf of Jette Ring v Dansk almennyttigt Boligselskab
(C-335/11) and HK Danmark, acting on behalf of Lone Skouboe Werge v Dansk
Arbejdsgiverforening, acting on behalf of Pro Display A/S [2013] ECLI:EU:C:2013:222. . . . . 174
P and S v Commissie Sociale Zekerheid Breda and College van Burgemeester en Wethouders
van de gemeente Amstelveen [2015] ECLI:EU:C:2015:369. . . . . . . . . . . . . . . . . . . . . . . . . 136
P. v S. and Cornwall County Council (Case C-13/94) [1996] ECR I-2143 . . . . . . . . . . . . . . . . . . . 10
Pedro Manuel Roca-Alvarez v Sesa Start Espana ETT SA [2010] ECLI:EU:C:2010:56. . . . . . . . . . 94
Pensionsversicherungsanstalt v Peter Brey [2013] ECLI:EU:C:2013:565. . . . . . . . . . . . . . . . 101, 103
Petya Milkova v Izpalnitelen direktor na Agentsiata za privatizatsia i sledprivatizatsionen
control [2017] ECLI:EU:C:2017:198 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65, 67, 85
R (on the application of Dany Bidar) v London Borough of Ealing and Secretary of State for
Education and Skills (Case C-209/03) [2005] ECLI:EU:C:2005:169. . . . . . . . . . . . . . . . . . 101
Razzouk and Beydoun v Commission (Joined Cases 75/82 & 117/82 [1984] ECR 1509. . . . . . . . . 10
Reinhard Gebhard v Consiglio dell’Ordine degli Avvocati e Procuratori di Milano [1995]
ECLI:EU:C:1995:411. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 70
Rewe-Zentralfnanze G and Rewe-Zentral AG v Landwirtschaftskammer für das Saarland
[1976] ECLI:EU:C:1976:188 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 149
Rinke See Katharina Rinke v Ärztekammer Hamburg
Roca-Alvarez See Pedro Manuel Roca-Alvarez v Sesa Start Espana ETT SA
Roman Angonese v Cassa di Risparmio di Bolzano SpA (Case C-281/90) [2000]
ECLI:EU:C:2000:296. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8, 80, 159, 161
xxi
S Coleman v Attridge Law and Steve Law [2008] ECLI:EU:C:2008:415. . . . . . . . . . . . 128, 129, 157
Sabine von Colson and Elisabeth Kamann v Land Nordrhein-Westfalen [1984]
ECLI:EU:C:1984:153. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 153
Samira Achbita and Centrum voor Gelijkheid van Kansen en voor Racismebestrijding
v G4S Secure Solutions NV [2016] ECLI:C:2016:382 [2017]
ECLI:EU:C:2017:203. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51, 53, 60, 172, 175
Satamedia See Tietosuojavaltuutettu v Satakunnan Markkinapörssi Oy and Satamedia Oy
Schrems See Maximilian Schrems v Data Protection Commisioner
Schultz-Hoff and Others (Joined Cases C-350/06 & C-520/06) [2009] ECR I-179 . . . . . . . . . . . 141
Seda Kücükdeveci v Swedex GmbH & Co KG [2010] ECLI:EU:C:2010:21. . . . . . . . . . . . . . .
2, 11, 13, 32, 35, 75, 77, 83–6, 106, 111–13, 115–19, 131–3, 136, 138, 139, 202
Serge Briheche v Ministre de l’Intérieur, Ministre de l’Education nationale and Ministre de la
Justice [2004] ECLI:EU:C:2004:574. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 94
Servet Kamberaj v Istituto per l’Edilizia Sociale della Provincia autonoma di Bolzano (IPES)
and others [2012] ECLI:EU:C:2012:233. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 134–6, 173
Sindicato dos Bancários do Norte and others v BPN—Banco Português de Negócios SA
[2013] ECLI:EU:C:2013:149 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66
Sindicato Nacional dos Profssionais de Seguros e Afnscontre Fidelidade Mundial—
Companhia de Seguros SA [2014] ECLI:EU:C:2014:2036. . . . . . . . . . . . . . . . . . . . . . . . . . . 66
Stefano Melloni v Ministerio Fiscal [2013] ECLI:EU:C:2013:107 . . . . . . . . . . . . . . . . . . . . . . 50, 51
Strack See European Commission v Guido Strack
Synetairismos Farmakopoion Aitolias & Akarnanias (Syfait) and others v GlaxoSmithKline plc
and GlaxoSmithKline AEVE [2005] ECLI:EU:C:2005:333. . . . . . . . . . . . . . . . . . . . . . . . . 189
Xabier Ormaetxea Garai and Bernardo Lorenzo Almendros v Administración del Estado
[2016] ECLI:EU:C:2016:780 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 195
Yolanda Del Cerro Alonso v Osakidetza-Servicio Vasco de Salud [2007]
ECLI:EU:C:2007:509. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 122, 125–7, 130, 131, 141
EU Equality Law: The First Fundamental Rights Policy of the EU. Elise Muir © Elise Muir 2018. Published
2018 by Oxford University Press.
xvi
EU Secondary Legislation
Decisions Directive 93/16/EEC [1993] OJ L165/
Decision 2002/584/JHA [2002] 13 (Free Movement of Doctors) ����������� 85
OJ L190/1������������������������������������������� 50 Art 34(1) ������������������������������������������������� 86
Decision 2008/913/JHA [2008] OJ Directive 93/104/EC [1993]
L328/55��������������������������������������������� 153 OJ 1993 L 30������������������������������������� 141
Decision 2008/977/JHA [2016] OJ Directive 95/46/EC [1995] OJ
L119/89������������������������������� 17, 184, 185 L281/3 (Data Protection
Decision 252/2013 [2013] OJ L79/1 ��������� 179 Directive)������ 17, 137, 182, 184, 185, 195
Art 17(1) ����������������������������������������������� 139
Directives Art 23����������������������������������������������������� 154
Directive 75/117/EEC [1975] Art 25(6) ����������������������������������������������� 191
OJ L45/19 (Equal Pay Art 28������������������������������183, 192, 193, 197
Directive)������������������������40, 72, 149, 153 Art 28(1) ������������������������������� 180, 187, 193
Art 2������������������������������������������������������� 148 Art 28(3) ����������������������������������������������� 191
Directive 76/207/EEC [1976] OJ Art 28(2)–(4)����������������������������������������� 186
L39/40 (Equal Treatment Art 47����������������������������������������������������� 191
(Employment) Directive)40, 94, 132, 148 Directive 96/34/EC [1996] OJ L145/4
Art 2(4) ��������������������������������������������� 91, 93 (Parental Leave) ��������������������������������� 149
Art 6������������������������������������������������������� 148 Directive 96/97/EC [1997] OJ L46/20
Directive 79/7/EEC [1979] OJ L6/24 (Equal Treatment Directive)����������������� 90
(Equal Treatment (Social Security) Directive 97/80/EC [1998] OJ L14/6
Directive)��������������������������41, 72, 73, 146 (Sex Discrimination
Art 6������������������������������������������������������� 148 Directive)����������������������28, 41, 70, 72, 82
Directive 86/378/EEC [1986] OJ Art 4������������������������������������������������� 71, 149
L225/40 (Equal Treatment Directive 97/81/EC [1998] OJ L14/
(Occupational Social Security 9 (Part-time Work Directive
Schemes) Directive������������������� 40, 72, 89 1997(PTW)) ����������������������������� 121, 128
Art 10����������������������������������������������������� 148 cl 4(1)������������������������������121, 122, 126, 132
Directive 86/457, Art 5(1) ��������������������������� 86 cl 4(2)����������������������������������������������������� 121
Directive 86/613/EEC [1986] OJ cl 4(3)����������������������������������������������������� 121
L359/56 (Equal Treatment (Self Directive 1999/70 EC [1999]
Employed) Directive)��������������������� 41, 72 OJ L175/43 (Fixed-Term
Art 9������������������������������������������������������� 149 Work Directive (FTW
Directive 89/552/EEC [1989] Directive))����������120, 125, 128, 131, 141
OJ L298/23 (Television cl 3(2)����������������������������������������������������� 122
Broadcasting Activities) ����������������������� 14 cl 4(1)������������������������������������� 126, 127, 130
Directive 90/364/EEC [1990] OJ L180/ cl 5��������������������������������������������������������� 122
26 (Right of Residence) ��������������������� 100 Directive 2000/43/EC [2000]
Directive 90/365/EEC [1990] OJ OJ L180/22 (Racial Equality
L180/28 (Right of Residence for Directive)�������������������������������� 15, 27, 41,
Employees and Self-employed)����������� 100 54, 73, 134, 146, 181
Directive 90/366/EEC [1990] OJ L180/ Recital (13)��������������������������������������������� 134
30 (Right of Residence for Recital (24)������������������������������������� 181, 197
Students)������������������������������������������� 100 Art 1������������������������������������������������������� 197
Directive 92/85/EEC [1992] OJ L348/ Art 3(1) ��������������������������������������������������� 29
1, Art 12������������������������������������� 148, 149 Art 3(2) ������������������������������������������������� 134
EU Equality Law: The First Fundamental Rights Policy of the EU. Elise Muir © Elise Muir 2018. Published
2018 by Oxford University Press.
xxvii
EU Equality Law: The First Fundamental Rights Policy of the EU. Elise Muir © Elise Muir 2018. Published
2018 by Oxford University Press.
xxxii
List of Abbreviations
GENERAL
EU Equality Law: The First Fundamental Rights Policy of the EU. Elise Muir © Elise Muir 2018. Published
2018 by Oxford University Press.
xvxi
1
Introduction
An intense debate was sparked in the late 1990s: should the EU become a ‘Human
Rights Organization’? The pressing need to reflect on the matter arose as the EU
became increasingly involved with justice and home affairs, thereby intervening
through legally binding tools in the fields of migration, justice, and police cooper-
ation, with direct implications on fundamental rights. The call for greater interven-
tion of the EU in matters concerned with fundamental or human rights1 had two
main facets: How could fundamental rights concerns be efficiently incorporated in
the daily functioning of the EU? Should human rights constitute new core policies
of the EU? The former focuses on an improved monitoring of fundamental rights’
compliance across existing EU policies. The latter is concerned with broadening the
mandate of the EU to cover human rights, either in the form of a new distinct policy
or in realizing fundamental rights through EU intervention across existing policies.
Twenty years, several treaty reforms, and one Charter of Fundamental Rights
later, in the midst of a migration, security, and economic crisis, the relevance of the
debate has been anything but tempered. While these questions taken together are
the subject of a book recently published by Dawson,2 the present monograph revisits
specific implications of the second question in the EU as we know it today. Despite
increasing attention being paid to fundamental rights in the daily functioning of
the EU, it is clear that no treaty revisions have given a broad mandate for the EU to
address fundamental rights protection across the Member States. That role remains
entrusted to the Member States themselves and to the Council of Europe, with the
notable exception of Article 7 of the Treaty on European Union (TEU). That provi-
sion sets out a procedure intended to empower the EU to monitor and possibly react
to a serious breach by a Member State of the values on which the EU is founded,
including respect for human rights. This is already the subject of much academic
attention.3
1 Please note that the notions of ‘fundamental rights’ and ‘human rights’ are used interchangeably
in this book.
2 Mark Dawson, The Governance of EU Fundamental Rights (CUP 2017).
3 Examples include: Dimitry Kochenov and Laurent Pech, ‘Better Late than Never? On the European
Commission’s Rule of Law Framework and its First Activation’ (2016) 54 JCMS 1062; Laurent Pech
and Kim Lane Scheppele, ‘Poland and the European Commission, Part III: Requiem for the Rule of
Law’ (2017) Verf Blog.
EU Equality Law: The First Fundamental Rights Policy of the EU. Elise Muir © Elise Muir 2018. Published
2018 by Oxford University Press.
2
2 1. Introduction
The focus of this book, which has been subject to far less analysis, is the pro-
gressive development of EU policies intended to realize specific fundamental rights.
Despite the clear rejection of a general mandate for the EU in this field, over the
past two decades EU competences have emerged explicitly—and at times almost
exclusively—to give shape to a given fundamental right. EU intervention in such
fields develops a legal and policy regime intended to promote the relevant funda-
mental right at domestic level. It is argued throughout this book that EU equality
law provides a particularly useful example of such a policy: it has developed since
the Amsterdam Treaty in reference to a legal basis that stands independently of the
internal market rationale common to most EU policies. Over the years it has gained
a particularly clear and forceful human rights connotation. And it has been encap-
sulated in a remarkably ambitious as well as homogeneous set of legislative instru-
ments combining both substantive guidance on the right itself, and a toolbox to
improve the effectiveness and governance of the said right in domestic spheres.
As such specific fundamental rights competences and relevant areas of law have
emerged despite the reluctance of the Member States to grant the EU a core human
rights policy, the constitutional setting in which they are embedded today warrants
investigation. What characterizes equality law today, as our key example, is twofold.
First, there is a strong trend towards the constitutionalization of equality law (ie
the narrative on equality law is very often couched in constitutional terms). This
is common in the dynamics of EU law and has often been criticized in the context
of internal market law-making. As a consequence, there is confusion on the rela-
tionship between the right to equal treatment as enshrined in legislation and the
constitutional version of the right protected by EU primary law. This confusion is
best illustrated by rulings such as Mangold,4 Kücükdeveci,5 Dansk Industri,6 or Test-
Achats,7 where the boundaries between two layers of EU norms are blurred. Second,
the equality law directives adopted from the year 2000 onwards have brought in a
very diverse set of rules intended to support a change in mentality from within do-
mestic legal and policy arenas. The infrastructure of EU law is therefore being used
to perform a transformative function of a particularly ambitious nature.
These two remarks on EU equality law as it stands today have one important
point in common: they both build on very well-known features of EU law. These are
a high level of constitutionalization and a supranational legal order highly integrated
in that of the Member States. In other words, a fundamental rights policy developed
through the medium of EU law, even if narrowly focused on a single fundamental
right as EU equality law is, carries the full strength of EU law. This may be obvious. It
is, however, worth investigating. Does the EU, in developing legislation that shapes
the content of a right deemed to be fundamental and that diversifies the tools for an-
choring that right in our societies, not have unique strengths as well as weaknesses?
It is submitted that the use of EU law to define and promote a given fundamental
right, such as that to equal treatment, in the context of a competence specifically de-
voted to that purpose, creates a significant risk of over-constitutionalization. This risk,
which amounts to limiting political debate on the definition of fundamental rights,
is best understood after reviewing the main theoretical components of the debate on
law-making in the field of human rights (Chapter 2). This will allow for a demon-
stration of the implications of this risk actually materializing in the context of EU
equality law (Chapter 3) as well as the development of an argumentation to prevent its
spreading to other prongs of EU law (Chapter 4). The initial chapters of the book thus
call for the preservation of elements of flexibility inherent in legislative law-making
when the EU regulates the fundamental right to equal treatment. Building on this
approach, Chapter 5 suggests an understanding be drawn of the wide range of tools
created under the umbrella of EU law to support a human rights culture in domestic
arenas as the main added value of EU legislative intervention in the field. These tools
indeed plant the seeds from which societal change is most likely to emerge as they allow
for interactive as well as reflexive processes. Before engaging with the detail of the argu-
mentation supporting these theses, the focus on EU equality law is further explained.
4 1. Introduction
situations must not be treated in the same way unless such treatment is objectively
justified.13 This principle has been granted constitutional status and is frequently
referred to as a general principle of EU law.14
As such, the general principle of equality and its expressions in primary and sec-
ondary law serve as benchmarks15 to assess the soundness of decision-making by
EU actors16 as well as by the Member States acting within the scope of EU law.17
It demands that decision-makers be capable of explaining the legitimacy, appropri-
ateness, and necessity of specific distinguishing criteria and the negative impact of a
decision on certain categories of actors or products. It is thus a tool for good govern-
ance.18 Among the diverse references to non-discrimination are a number of expres-
sions of the principle that substantiate the meta-principle in the context of a specific
policy. What many of these references have in common is that they are primarily
driven by the goal of market-making for goods, services, and legal and natural per-
sons, as well as capital.19 In this context, the principle of equality is framed in terms
of non-discrimination on grounds of nationality and is designed to erase boundaries
progressively for economic entities among the Member States.
Other references to equality are the expression of a more ambitious societal
goal: they constitute an example of what Walker has named ‘second-generation
rights’ in the context of EU law.20 These rights were developed after the original
framework defined the four freedoms and the necessary property rights and eco-
nomic freedoms.21 These latter provisions, which may be found in primary as well
as secondary law, belong to policies driven by the intent to further equality among
the people of Europe.22 Here non-discrimination is more than a principle regu-
lating the mechanics of institutional law or a tool to regulate the relationship among
13 Albert Ruckdeschel & Co and Hansa Lagerhaus Ströh & Co v Hauptzollamt Hamburg-St Annen;
Diamalt AG v Hauptzollamt Itzehoe [1977] ECLI:EU:C:1977:160, para 7. The first limb of this formula
is the most classic expression of the principle but the second limb is also of practical relevance, eg Zoi
Chatzi v Ypourgos Oikonomikon [2010] ECLI:EU:C:2010:534, paras 68–75.
14 Albert Ruckdeschel & Co and Hansa Lagerhaus Ströh & Co v Hauptzollamt Hamburg-St Annen;
Diamalt AG v Hauptzollamt Itzehoe [1977] ECLI:EU:C:1977:160, para 7. See also Land Oberösterreich
v Čez [2009] ECLI:EU:C:2009:660, para 91.
15 On the functions of the principle, eg Gillian More, ‘The Principle of Equal Treatment: From
Market Unifier to Fundamental Right?’ in Paul Craig and Gráinne de Búrca (eds), The Evolution of EU
Law (OUP 2011) 517; Gráinne de Búrca, ‘The Role of Equality in European Community Law’ in Alan
Dashwood and Siofra O’Leary (eds), The Principle of Equal Treatment in EC Law (Sweet & Maxwell
1997) 13.
16 Including the legislator, eg Association Belge des Consommateurs Test-Achats ASBL and others v
Conseil des ministers [2011] ECLI:EU:C:2011:100.
17 By analogy Åklagaren v Hans Åkerberg Fransson [2013] ECLI:EU:C:2013:105, paras 16–31.
18 Illustrating the implementation of fundamental rights for that purpose, see: Commission (EU),
‘2014 Report on the Application of the EU Charter of Fundamental Rights’ COM (2015) 191 final, 8
May 2015; and Council (EU), ‘Guidelines on Methodological Steps to be Taken to Check Fundamental
Rights Compatibility at the Council Preparatory Bodies’ 5377/15, 20 January 2015.
19 See also competition law and agricultural policy.
20 Neil Walker, ‘Human Rights in a Post-National Order: Reconciling Political and Constitutional
Pluralism’ in Tom Campbell, Keith D Ewing, and Adam Tomkins (eds), Sceptical Essays on Human
Rights (OUP 2001) 137.
21 ibid 136.
22 Fritz W Scharpf, ‘Perpetual Momentum: Directed and Unconstrained?’ (2012) 19 JEPP 127,
132–33.
5
national markets; it is one of the central constituents of a project for greater harmony
between, as well as within, the societies of the Member States. The identification of
the social function of equality is commonly illustrated by reference to the landmark
statement of the Court of Justice of the European Union (‘the Court’) in Defrenne
II, according to which the principle of equal pay between men and women ‘forms
part of the social objectives of the [Union], which is not merely an economic union,
but is at the same time intended . . . to ensure social progress and seek the constant
improvement of the living and working conditions’.23 Today the EU is, for example,
expected to actively seek to combat discrimination on a variety of grounds,24 as well
as to combat it while defining and implementing its policies and activities,25 with
the emphasis on equal treatment between men and women.26
The pursuit of equality with this social connotation is both an ancient competence
and a particularly modern and dynamic EU policy. The Rome Treaty contained pro-
visions that have set the floor for a wealth of legislation and case law on equal treat-
ment in employment, with the prohibition of nationality discrimination against
workers from another Member State27 as well as sex discrimination as regards pay.28
This legal framework quickly developed through political initiatives and judicial
law-making.29 It was considerably broadened following the entry into force of the
Amsterdam Treaty. What is today Article 19 of the Treaty on the Functioning of the
European Union (TFEU) indeed empowers EU institutions to take appropriate
action also to combat discrimination based on racial or ethnic origin, religion or
belief, disability, age, or sexual orientation, thus paving the way for a spectacular
broadening and modernization of EU equality law.
This set of references to equality is the focus of this book in so far as it is consti-
tutive of EU equality policy.30 Legislation giving flesh to the principle of equality
has also blossomed in the context of employment and migration law.31 EU equality
policy defined in that sense performs both ‘public and private’ functions.32 ‘Public’
is understood in terms of the law regulating relationships among public authorities
as well as between public authorities and private parties. The principle of equality as
a ‘public law’ principle has been designed to regulate the structures of the EU legal
6 1. Introduction
order in two ways. First, it asserts equality between states and prohibits discrimin-
ation on the grounds of nationality in order to advance the process of European (eco-
nomic) integration. (The prohibition of nationality discrimination has also gained
a more social dimension in recent years, as will be discussed further.33) Second, the
prohibition of discrimination on other grounds, such as sex or race/ethnic origin,
applies to EU and national institutions34 in order to ensure the soundness of EU
governance in its impact on individuals. The principle thereby performs a ‘funda-
mental rights’ function in the classic sense of the term, namely protecting individ-
uals against the arbitrariness of public authorities. In both contexts, the principle of
equality is a tool shaping the infrastructure of European societies. In other words,
it regulates the functioning of the institutions, whether they are European or na-
tional, and operates as a constitutional principle that at times is given shape through
legislation.
In addition to this ‘infrastructural’ function, the principle of equal treatment also
performs a private function when it is used to articulate interpersonal relationships.
In this ‘private’ sense, EU equality law is designed to transform society from the in-
side. For example, the recent directives adopted on the basis of Article 19 TFEU,
which give expression to the principle of equal treatment in employment and be-
yond, are instruments largely designed to ‘combat’ discrimination between private
persons (for example employee/employer, consumer/insurer). This ‘private’ func-
tion can be contrasted with the ‘public’ function of EU equality law as it is used to
pursue ‘inter-personal equality per se’.35 In so far as EU equality law seeks to regulate
both public and private relations and to impact on societal practices by identifying
‘bad attitudes’,36 it will be referred to as having a ‘transformative’ function.37
This book does not address the issue of whether EU equality actually succeeds
in transforming societal habits and eradicating discriminatory practices. A glance
at the work of the European Network of Legal Experts in the Non-Discrimination
Field suffices to illustrate how much still needs to be done.38 Similarly, it is not de-
nied that domestic or international rules on the matter existed before the adoption
of the relevant EU instruments.39 Instead, the purpose of this book is to reflect on
the dynamics of today’s EU equality law. EU equality law has been shaped into a
tool designed to tackle a fairly clearly circumscribed yet vast array of unwanted soci-
etal practices; this is a remarkably ambitious programme for an EU policy. For this
33 See Chapter 3.
34 As well as bodies and agencies. The prohibition is only relevant within the scope of EU law.
35 Scharpf (n 22) 132–33.
36 Alexander Somek, Engineering Equality: An Essay on European Antidiscrimination Law (OUP
2011) 16 and further 91.
37 The expression is borrowed from Alec Stone Sweet and Kathleen Stranz, ‘Rights Adjudication and
Constitutional Pluralism in Germany and Europe’ (2012) 19 JEPP 92, 96; see also Colm O’Cinneide,
‘The Constitutionalisation of Equality within the Legal Order of the EU: Sexual Orientation as a Testing
Ground’ (2015) 22 MJ 370.
38 European Network of Legal Experts in Gender Equality and Non-Discrimination, available at
<http://www.non-discrimination.net/> (accessed 1 February 2018).
39 eg ILO Equal Remuneration Convention, 1951 (No 100) (adopted 29 June 1951, entered into
force 23 May 1953). See further Catherine Hoskyns, Integrating Gender: Women, Law and Politics in the
European Union (Verso 1996) 53.
7
The function of the principle of equality in European law evolved greatly in the early
years of the European integration project. The European Economic Community
Treaty (TEEC) was primarily understood as an international law instrument which
would restructure relationships between the states of Europe. One of its central
tools to achieve that was the prohibition of nationality discrimination. It was meant
to weigh on the European public order and set powerful constitutional dynamics
designed to address—in the long term—structural imbalances in relations between
states as well as between states and their people. The Treaty of Rome also included
a reference to the (very narrowly defined) principle of equal pay for equal work be-
tween men and women enshrined in Article 119 TEEC (now Article 157(1) TFEU).
That principle was initially only understood as a structural instrument, ancillary to
the building of the internal market; it was intended to prevent distortions of com-
petition due to diverging domestic legislation on the wages of female employees.41
From the 1960s onwards, the story is well known. The Court distinguished the
nature of the European project from that of a traditional international legal order: the
EU has a unique legal system integrated into those of the Member States, owing to
the principles of primacy and direct effect. European law was thus capable of cre-
ating rights and obligations for private parties directly.42 This allowed individuals to
enforce infrastructural rules of the EU legal order against their own institutions. The
specificity of the EU legal order was taken one step further when the Court, despite
the reluctance of the Member States,43 asserted that treaty provisions were not only
capable of vertical, but also of horizontal direct effect in the Defrenne II case.
It is perhaps unsurprising that private litigants sought to rely on the principle of
equal pay for equal work enshrined in Article 119 TEEC, as in Defrenne II, in order
to challenge an unbalanced private contractual arrangement.44 The very notion of
8 1. Introduction
equal pay for equal work planted the seeds of EU regulation of private employment
contracts. As pointed out already, the rationale for this novel jurisdictional approach
was the understanding that the principle of equal pay had a social dimension besides
its internal market rationale.45 The Court soon further stressed that the elimination
of discrimination on the grounds of sex forms part of the observance of fundamental
rights, which the EU has a duty to ensure.46
Building on this innovative approach to the role of European law, the Court
progressively expanded the possibilities for individuals to rely on the principle of
equality as asserted in the Treaty against other individuals, starting from the 1970s
and culminating in the late 1990s. Perhaps the clearest example of the transformative
function of the principle is to be found in the wording of the Angonese case, which
related to nationality discrimination.47 In that case the Court made it clear that:
Article [45 TFEU] lays down a fundamental freedom and . . . constitutes a specific applica-
tion of the general prohibition of discrimination contained in [Article 18 TFEU]. In that
respect, like Article [157 TFEU], it is designed to ensure that there is no discrimination on
the labour market . . . Consequently, the prohibition of discrimination on grounds of nation-
ality laid down in Article [45] of the Treaty must be regarded as applying to private persons
as well.48
From Defrenne II to Angonese, the Court thus departed from the narrow wording
of the Treaty on the prohibition of sex and nationality discrimination as market
unifiers, and revealed the dormant transformative function of EU equality law.
This function is now considered to exist alongside the internal market objectives of
EU law.49
It is common to refer to this judicial transformation of the role of EU equality law
as a transition from an economic understanding of the prohibition of discrimination
to that of a social approach, or at least to a new approach combining both.50 This
should not be misunderstood: this transition is about much more than simply set-
ting high standards of social protection at the expense of a deregulatory approach to
free trade. Special emphasis will be placed in this book on the fact that the standards
45 Gabrielle Defrenne v Société anonyme belge de navigation aérienne Sabena [1976] ECLI:EU:
C:1976:56, paras 8–12.
46 Gabrielle Defrenne v Société anonyme belge de navigation aérienne Sabena [1978] ECLI:EU:
C:1978:130, paras 26–27.
47 Roman Angonese v Cassa di Risparmio di Bolzano SpA [2000] ECLI:EU:C:2000:296, paras 33–36.
See also BNO Walrave and LJN Koch v Association Union cycliste international, Koninklijke Nederlandsche
Wielren Unie and Federación Espanola Ciclismo [1974] ECLI:EU:C:1974:140, para 17; and Union royale
belge des sociétés de football association ASBL v Jean-Marc Bosman, Royal club liégeois SA v Jean-Marc
Bosman and others and Union des associations européennes de football (UEFA) v Jean-Marc Bosman [1995]
ECLI:EU:C:1995:463.
48 Roman Angonese v Cassa di Risparmio di Bolzano SpA [2000] ECLI:EU:C:2000:296, paras 35–36.
49 The social function of EU sex equality law is predominant over its internal market function,
Deutsche Telekom AG v Lilli Schröder[2000] ECLI:EU:C:2000:72, paras 56–57; EU internal market
policy must be balanced against the objectives pursued by EU social policy, Laval un Partneri Ltd
v Svenska Byggnadsarbetareförbundet, Svenska Byggnadsarbetareförbundetsavdelning 1, Byggettan and
Svenska Elektrikerförbundet [2007] ECLI:EU:C:2007:809, para 105.
50 This second approach has been forcefully argued throughout Mark Bell, Anti-Discrimination
Law and the European Union (OUP 2002).
9
hereby heralded are the expression of a fundamental right,51 the right is thus highly
moralized.52 The prohibition of sex and nationality discrimination was considered,
from the late 1980s, to form part of the ‘acquis materiel fondamental’ of the EU.53
The understanding of EU equality law as being the expression of a fundamental
right (see section C.1) and the importance of the interaction between equality le-
gislation and the fundamental right to equal treatment (see section C.2) deserves
elaboration at the outset. It will be argued that EU equality law can in many ways
be understood as the ‘first’ fundamental rights policy of the EU (see section C.3).
51 See Charter of Fundamental Rights of the European Union [2012] OJ C326/391, Article 21.
52 For a thoughtful overview of the evolution of the rationale of EU equality law, see also Sacha
Prechal, ‘ “Non-Discrimination Does Not Fall Down from Heaven”: The Context and Evolution of
Non-Discrimination in EU Law’ (2009) Eric Stein Working Paper No 4/2009, 10.
53 José Luis da Cruz Vilaça and Nuno Piçarra, ‘Y a-t-il des limites matérielles à la révision des traités
instituant les Communautés européenne?’ (1993) 23 Cahiers de Droit Européen 3, 29.
54 The preamble to the Community Charter of the Fundamental Social Rights of Workers (adopted
9 December 1989) states that ‘it is important to combat every form of discrimination, including dis-
crimination on grounds of sex, colour, race, opinions and beliefs’.
55 Chris Docksey, ‘The Principle of Equality between Women and Men as a Fundamental Right
under Community Law’ (1991) 20 ILJ 258, 259. See also More (n 15) 517 and Sacha Prechal, ‘Equality
of Treatment, Non-Discrimination and Social Policy: Achievements in Three Themes’ (2004) 41 CML
Rev 533, 547 et seq.
56 Jacqueline Dutheil de la Rochère, ‘The EU and the Individual: Fundamental Rights in the Draft
Constitutional Treaty’ (2004) 41 CML Rev 345, 345; see also her word of caution on sex equality law at
347. See also, although written a little earlier, AG Toth, ‘The European Union and Human Rights: The
Way Forward’ (1997) 34 CML Rev 491, 499.
10
10 1. Introduction
observance the Court has a duty to ensure.57 Yet, it was not until 2000 that the Court
went further to assert that Article 157 TFEU on sex equality in employment actually
‘constitutes the expression of a fundamental human right’58 (emphasis added). Indeed,
in the Deutsche Post cases, the Court set out its reasoning in three stages:
55. . . . the Court has stressed that Article 119 TEC forms part of the social objectives of the
Community, which is not merely an economic union but is at the same time intended, by
common action, to ensure social progress and seek constant improvement of the living and
working conditions of the peoples of Europe, as is emphasized in the Preamble to the Treaty.
That aim is accentuated by the insertion of Article 119 into the body of a chapter devoted to
social policy whose preliminary provision, Article 117 TEC (Articles 117 to 120 TEEC have
been replaced by Articles 136 EC to 143 EC), marks the need to promote improved working
conditions and an improved standard of living for workers, so as to make possible their har-
monization while the improvement is being maintained (Defrenne II, paragraphs 10 and 11).
56. However, in later decisions the Court has repeatedly held that the right not to be dis-
criminated against on grounds of sex is one of the fundamental human rights whose obser-
vance the Court has a duty to ensure (see, to that effect, Case 149/77 Defrenne III [1978]
ECR 1365, paragraphs 26 and 27, Joined Cases 75/82 and 117/82 Razzouk and Beydoun v
Commission [1984] ECR 1509, paragraph 16, and Case C-13/94 P. v S. and Cornwall County
Council [1996] ECR I-2143, paragraph 19).
57. In view of that case-law, it must be concluded that the economic aim pursued by Article
119 of the Treaty, namely the elimination of distortions of competition between under-
takings established in different Member States, is secondary to the social aim pursued
by the same provision, which constitutes the expression of a fundamental human right.59
(emphasis added)
In paragraphs 55, 56, and 57 of the Deutsche Post ruling, the Court thus moved
from (i) an analysis of ex-Article 119 TEEC on sex equality in matters of salary as
forming part of the social objectives of the Community; (ii) to the reassertion of the
right not to be discriminated against on grounds of sex as one of the fundamental
human rights, observance of which the Court has a duty to ensure; and finally (iii)
to upgrading the social purpose of ex-Article 119 TEEC on sex equality to its first
function. This final and innovative upgrade has been legitimized by reference to the
fact that ex-Article 119 TEEC constitutes the expression of a fundamental human
right. The nuance in the wording constitutes more than a linguistic twist:60 it il-
lustrates a shift in the perception of this field of law in the late 1990s–early 2000s
towards understanding EU equality law as a fundamental rights ‘policy’, namely a
set of policy tools designed to put into effect a fundamental right.
As argued by Koukoulis-Spiliotopoulos, the formula by which ex-Article 119
TEEC is understood as constituting the expression of a fundamental human right
57 Paraphrasing Gabrielle Defrenne v Société anonyme belge de navigation aérienne Sabena [1978]
ECLI:EU:C:1978:130, paras 26–27.
58 Deutsche Post AG v Elisabeth Sievers and Brunhilde Schrage [2000] ECLI:EU:C:2000:76, paras
55–57; see also Deutsche Telekom AG v Lilli Schröder [2000] ECLI:EU:C:2000:72, paras 55–57.
59 Deutsche Post AG v Elisabeth Sievers and Brunhilde Schrage [2000] ECLI:EU:C:2000:76,
paras 55–57.
60 See also Prechal (n 55) 548.
1
in paragraph 57 of the Deutsche Post ruling applies to any EU gender equality pro-
vision.61 In fact, it can now be assumed that the formula applies to any provision of
EU equality legislation as identified above.62 The Court indeed applied it to legis-
lation adopted on the basis of Article 19 TFEU in Mangold63 from 2005. This was
confirmed in 2010 in the Kücükdeveci case in the following terms:
Directive 2000/78 merely gives expression to, but does not lay down, the principle of equal
treatment in employment and occupation, and that the principle of non-discrimination on
grounds of age is a general principle of European Union law in that it constitutes a specific ap-
plication of the general principle of equal treatment (see, to that effect, Mangold, paragraphs
74 to 76).64 (emphasis added)
Although the Court has so far declined invitations to use the same expression and
approach for principles given specific expression in directives outside the scope of
equality law,65 there is no reason why it should not prevail when individuals seek to
invoke the other Article 19 TFEU criteria given expression to in directives adopted
precisely on the basis of the said Article 19 TFEU.66 Indeed, Article 19 TFEU man-
dates the EU legislator to combat discrimination on grounds of sex, racial or ethnic
origin, religion or belief, disability, age, or sexual orientation, without distinguishing
between them. Sex equality legislation adopted on the basis of Article 157 TFEU
would a fortiori (in the light of the Deutsche Post ruling) also be deemed to constitute
an expression of the fundamental right to equal treatment.
The timing of both sets of jurisprudential developments on sex equality and the
Article 19 TFEU directives is perhaps no coincidence, occurring in a period when
Article 19 TFEU was inserted into the EU Treaties by the Treaty of Amsterdam
(which entered into force in 1999) and the Charter of Fundamental Rights of
the European Union (CFEU or ‘the Charter’) was proclaimed (2000) and gained
binding force (2009).67 Article 19 TFEU indeed constitutes the first (ever) legal
basis for the adoption of fundamental rights legislation in EU law. This legal basis
stands alone, without the legislator having to prove a link with other—more
traditional—hobby horses of the EU, such as internal market policy. It also al-
lows for the adoption of legislation covering a fairly wide range of discrimination.
Meanwhile Article 21 CFEU68 prohibits any discrimination on the grounds covered
by Article 19 TFEU as well as others in the field of application of EU law.69 Both
articles thus suggest that the EU has a stronger mandate to protect the fundamental
12 1. Introduction
right to non-discrimination both at the primary and secondary law levels than it had
in the past.
‘ossified’.75 In the rulings already mentioned, Mangold and Kücükdeveci, the Court
applied EU equality legislation, giving expression to the fundamental right to equal
treatment. The Court thus granted the authority of primary law to the substantive
content of the legislation giving expression to the fundamental right to equal treat-
ment.76 While this approach consolidates the level of protection afforded to the
said fundamental right and may enhance its justiciability,77 it also leads to more
ambiguous consequences. As a result of this constitutionalization process, a whole
policy area is seemingly removed from the daily decision-making process of the
EU.78 In so far as the substance of the legislation is merged into and its effects are
derived from primary law, changes to any of these aspects may not simply result
from ordinary political processes and may instead have to be triggered and medi-
ated through ‘constitutional’ avenues. This warrants that attention be paid to the
legal and political implications of the atypical constitutional framework in which
EU equality law is currently developing. Fundamental rights may indeed perform a
‘unifying ideal’ as much as they may be ‘divisive’ and differ from polity to polity.79
The strengths and weaknesses of the institutional setting together with the tension
between constitutionalization and politicization of a supranational fundamental
rights policy ought therefore to be identified and analysed.80
Third, and importantly, the drive towards a fundamental rights policy at EU level
comes with a significant methodological shift. Von Bogdandy pointed out, in his
reflection on the desirability (or lack thereof ) of the EU becoming a human rights
organization, that devoting policy tools to enhance the protection of fundamental
rights implies moving away from text-based science for fundamental rights protec-
tion towards policy formation and implementation.81 This methodological shift in
the analysis of systems of fundamental rights protection places emphasis on political
processes shaping a fundamental rights policy and has been much less explored than
tensions created by constitutional adjudication on fundamental rights matters. Too
little attention is indeed paid to the role of legislatures in shaping laws that have fun-
damental rights implications.82
This book seeks to address this asymmetry in the debate on EU fundamental
rights law83 through a detailed analysis of EU equality law and law-making. In add-
ition to emphasizing the role of the EU legislature in the field of fundamental rights
14 1. Introduction
protection as a complement to the heavy focus on the role of the Court in that
respect, this book provides a test case to assess the challenges raised by the develop-
ment of a fundamental rights policy at EU level.
84 eg Commission (EC), ‘For a Europe of Civic and Social Rights’ (1996) Report by the Comité des
Sages chaired by Maria de Lourdes Pintasilgo.
85 See in particular exchanges between Alston and Weiler (n 83); and von Bogdandy (n 78).
86 Toth (n 56) 497. 87 von Bogdandy (n 78) 1310.
88 The Charter has not changed this observation: Lord Goldsmith, ‘The Charter of Rights—a Brake
Not an Accelerator’ (2004) 5 EHRLR 473, to be read in conjunction with Roy W Davis, ‘A Brake? The
Union’s New “Bill of Rights” ’ (2005) 5 EHRLR 449.
89 See also Elise Muir, ‘The Court of Justice: A Fundamental Rights Institution among Others’ in
Mark Dawson, Elise Muir, and Bruno de Witte (eds), Judicial Activism at the European Court of Justice
(Edward Elgar 2013) 76–101.
90 It is important to stress that examples of this type of measure existed several years ago; eg Council
Directive (EEC) 89/552 of 3 October 1989 on the coordination of certain provisions laid down by law,
regulation or administrative action in Member States concerning the pursuit of television broadcasting
activities [1989] OJ L298/23, Article 22. See further Piet Eeckhout, ‘The EU Charter of Fundamental
Rights and the Federal Question’ (2002) 39 CML Rev 945, 983.
15
contains other policy objectives. These instruments may be distinct from simple
forms of fundamental rights mainstreaming. While the latter are merely concerned
with asserting the incidental fundamental rights implications of EU acts, the former
seek to actually address fundamental rights issues through positive rights and mech-
anisms. Instruments impacting on fundamental rights protection while achieving
another central policy aim are also distinct from EU equality law. EU equality law is
exclusively designed to enhance fundamental rights while these other instruments
do not—or at least not explicitly and clearly—have such protection as their primary
purpose.
These distinctions between the various fundamental rights implications of dif-
ferent pieces of legislation are not hermetic91 and will not be discussed in further
detail in this book. The point being made here is merely that although EU legislative
intervention can affect fundamental rights protection to a significant—if not spec-
tacular (as is the case for instance in the context of EU migration law92)—extent,
the design for such legislative intervention can be distinguished from that of an au-
tonomous fundamental rights policy specifically concerned with achieving a higher
degree of protection of the said right.93 The legislator may indeed devote specific
attention to ensuring compliance with and a high level of protection of fundamental
rights as well as to developing mechanisms designed to enhance the protection of the
relevant fundamental right.
EU equality law constitutes one branch of EU law by which EU institutions
do seek to actively ‘combat discrimination’,94 ‘with a view to putting into effect in
the Member States the principle of equal treatment’.95 Such law is geared towards
developing concepts and tools to protect and promote the fundamental right to
equal treatment. In so far as EU equality law thereby seeks to achieve ‘inter-personal
equality per se’96 and to ‘change democratic societies’ instead of just protecting indi-
viduals against threats to the said fundamental right or limiting European interven-
tion that may affect such rights, it can be labelled as a fundamental rights policy.97
91 The author fully acknowledges that certain acts may be difficult to classify in one category instead
of another. The categories proposed, however, remain conceptually useful in characterizing the tensions
between the EU judiciary and EU political institutions in the various contexts. See also Eeckhout (n
90) 984–85.
92 Council Directive (EC) 2003/86 of 22 September 2003 on the right to family reunification
[2003] OJ L251/12 (hereafter ‘Family Reunification Directive’), Preamble, Recital (6) is an instrument
of EU migration policy that actually overlaps with the implementation of a given fundamental right. It
explicitly seeks, to a certain extent, to ‘protect the family and establish or preserve family life’.
93 On the distinction between positive and negative integration in the field of fundamental rights
protection, see Alston and Weiler (n 83) 8–9 as discussed later; on the possible scope, depth, and impact
of EU fundamental rights policies, see Eeckhout (n 90) 990. Note that this is distinct from the ‘offen-
sive/defensive’ dichotomy used by Coppel and O’Neill (n 12) 669. This dichotomy relates to the use
of the fundamental rights discourse primarily by the Court, with very limited insight into the role of
political institutions in shaping such a discourse.
94 Article 19 TFEU.
95 eg Council Directive (EC) 2000/43 implementing the principle of equal treatment between per-
sons irrespective of racial or ethnic origin [2000] OJ L180/22, Article 1.
96 Scharpf (n 22) 132–33.
97 Paraphrasing von Bogdandy (n 78) 1308. Note, however, that this policy is not unlimited, as will
be discussed in Chapter 3 A.3.b.
16
16 1. Introduction
An important feature of such a policy at EU level is that it seeks to address problems
that are ‘not . . . intrinsic to a transnational context’ (emphasis in original).98 Unlike
most provisions of EU law that have implications for fundamental rights protec-
tion, an EU fundamental rights policy does not need to be related to transnational
questions.
In 1999, Alston and Weiler had already pointed out that EU gender equality law was
one of the limited examples where the EU had actually moved from—what they coin
by analogy to the process of market integration as—‘negative’ to ‘positive’ integration
for the purpose of human rights protection.99 The existence of a self-standing legal basis
for equal treatment100 after Amsterdam, as well as the adoption of several directives on
the basis of what is now Article 19 TFEU and the modernization of EU gender equality
law, make it clear today that EU equality law is the first area where the EU has explicitly
engaged in active policy-making to enhance fundamental rights protection.
A few other policies, such as EU data protection law and EU asylum law, could
be deemed to constitute fundamental rights policies as defined herein. For instance,
Article 78 TFEU on asylum empowers the EU legislator to adopt legislation in
order to:
. . . develop a common policy on asylum, subsidiary protection and temporary protection
with a view to offering appropriate status to any third-country national requiring inter-
national protection and ensuring compliance with the principle of non-refoulement. This
policy must be in accordance with the Geneva Convention of 28 July 1951 and the Protocol
of 31 January 1967 relating to the status of refugees, and other relevant treaties.101
On this basis, the so-called Qualification Directive102 aims at laying down ‘stand-
ards for the qualification of third-country nationals or stateless persons as benefi-
ciaries of international protection, for a uniform status for refugees or for persons
eligible for subsidiary protection, and for the content of the protection granted’.103
Yet, neither the wording of the Treaty nor that of the Directive are as clear-cut as EU
equality law is when it comes to asserting its fundamental rights function and its
autonomy from other EU substantive policies. EU asylum policy does not appear to
result from a reflection on how to promote a specific fundamental right, it is (still)
more concerned with ensuring the consistency of EU intervention with the require-
ment to protect refugees in a transnational context than in actively promoting the
right to refugee status.104
Another example is EU data protection law. Although its initial legal basis was
to be found in internal market treaty provisions,105 the objectives of the Directive
98 Somek (n 36) 9. Also observing the autonomy of the so-called ‘Article 13 TEC Directives’,
Charilaos Nikolaidis, The Right to Equality in European Human Rights Law: The Quest for Substance in
the Jurisprudence of the European Courts (Routledge 2015) 130.
99 Alston and Weiler (n 83) 8–9. 100 Acting as a complement to Article 157 TFEU.
101 Article 78(1) TFEU.
102 Directive (EU) 2011/95 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 eli-
gible for subsidiary protection, and for the content of the protection granted [2011] OJ L337/9.
103 ibid Article 1. 104 Arguing along similar lines, see Eeckhout (n 90) 985.
105 Then Article 100a of the Treaty Establishing the European Community (TEC).
17
on the protection of individuals with regard to the processing of personal data and
on the free movement of such data (or the Data Protection Directive)106 combine a
fundamental right and an internal market approach. Indeed, Article 1 of the Data
Protection Directive states as follows:
1. In accordance with this Directive, Member States shall protect the fundamental rights
and freedoms of natural persons, and in particular their right to privacy with respect to
the processing of personal data.
2. Member States shall neither restrict nor prohibit the free flow of personal data between
Member States for reasons connected with the protection afforded under paragraph 1.107
Furthermore, the Lisbon Treaty inserted a new legal basis for the adoption of le-
gislation on data protection that features in the title on ‘Provisions having General
Application’ and is currently being used in the context of a large-scale reform of EU
data protection law.108 Although the tone of the new instrument has a yet stronger
fundamental rights dimension than its predecessor,109 the new Article 16 TFEU, on
which the reform is based, combines an internal market and a fundamental rights
rationale, as can be seen from the reference to the free movement of data. This means
its autonomous status at this stage is still unclear. Nevertheless it may be the policy
that is the closest to EU equality law in terms of fundamental rights dynamics, and
so some comparisons will be drawn and avenues opened up for further research.110
EU equality law thus stands out in terms of the autonomous mandate it is given
by the EU Treaties.111 This book explores the constitutional implications of this au-
tonomy. Parallels will be drawn now and then with different fields of EU law that are
particularly strongly intertwined with EU equality policy and fundamental rights
in general.
Fifteen to twenty years after the adoption and entry into force of the key
instruments—in particular what are now Article 19 TFEU, Article 21 CFEU, and
the so-called ‘Article 19 TFEU Directives’—one can examine the extent to which
106 Directive (EC) 95/46 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 [1995] OJ L281/31.
107 ibid Article 1.
108 See Regulation (EU) 2016/679 of 27 April 2016 on the protection of natural persons with regard
to the processing of personal data and on the free movement of such data, and repealing Directive 95/
46/EC (General Data Protection Regulation) [2016] OJ L119/1; and Directive (EU) 2016/680 of 27
April 2016 on the protection of natural persons with regard to the processing of personal data by com-
petent authorities for the purposes of the prevention, investigation, detection or prosecution of criminal
offences or the execution of criminal penalties, and on the free movement of such data, and repealing
Council Framework Decision 2008/977/JHA [2016] OJ L119/89.
109 As argued for instance by Antonella Galetta and Paul de Hert, ‘The Proceduralisation of Data
Protection Remedies under EU Data Protection Law: Towards a More Effective and Data Subject-
Oriented Remedial System?’ (2015) 8 REALaw 125.
110 See Chapters 4 and 5. 111 Also singling out EU equality law, Eeckhout (n 90) 985.
18
18 1. Introduction
EU equality law may be understood as breaking through new boundaries as a funda-
mental rights policy of the EU. The following questions may be asked: What char-
acterizes the relationship between EU institutions as well as domestic and EU actors
on the matter? Can lessons be drawn for the development of specific fundamental
rights policies at the EU level?
explain its over-constitutionalization and the extent to which such features can
be found elsewhere is considered. It will be argued that isolated equal treatment
clauses enshrined in EU employment and migration law should be treated dif-
ferently from the core of EU equality policy—and thereby be protected against
over-constitutionalization. It will also be noted that EU data protection law is a
field where at least some of the challenges identified in Chapter 3 in relation to EU
equality law may reoccur.
These earlier chapters having warned against relying too heavily on a constitu-
tional narrative to address the protection of fundamental rights in the EU, the book
finally turns to the potential for EU equality law to genuinely make a difference at
domestic level. It will be argued that this can be best achieved by using the full poten-
tial of the political dimension of EU equality law to establish innovative governance
tools (Chapter 5 ‘The Legislative Embedding of the Governance of EU Equality
Law’). The main added value of EU intervention may indeed lie precisely in sup-
porting societal change from within through dynamic legal processes stimulated by
EU legislative intervention. The final section therefore concludes with a detailed
examination of the instruments developed in the context of EU equality law to ef-
ficiently enhance equal treatment in the EU and looks at the way they have actually
been used since their adoption to stimulate policy formation domestically. Specific
attention is devoted to examining the extent to which such tools could be transposed
to similar fields of EU law, as well as the extent to which EU equality law may benefit
from comparisons with developing fundamental rights legislation, for example with
the legislation in the context of data protection.
112 eg Sandra Fredman, Human Rights Transformed: Positive Rights and Positive Duties (OUP 2008)
in particular 53–58 and 159–66.
113 eg Mark Bell, Racism and Equality in the European Union (OUP 2008); Lisa Waddington, ‘Future
Prospects for EU Equality Law: Lessons to be Learnt from the Proposed Equal Treatment Directive’
(2011) 36 EL Rev 163.
114 eg Gráinne de Búrca, ‘EU Race Discrimination Law: A Hybrid Model’ in Gráinne de Búrca and
Joanne Scott (eds), Law and New Governance in the EU and the US (Hart Publishing 2006) 97–120.
20
20 1. Introduction
Another category of these publications examines EU equality law from an alternative
perspective to that of ‘equality’ per se. For these academics, EU equality law serves as a
case study to consider broader legal and political developments. Some authors investi-
gate the limits of the principle of equality in addressing broad societal imbalances. For
Somek, equality policy lacks substantive norms and thus is an insufficient social tool.115
Heavy reliance on this mechanism at the EU level threatens to deprive domestic re-
distribution policies of their content. Several other academics have been interested in
how EU equality law-making illustrates the institutional dynamics of the process of
European integration. Stone Sweet demonstrates this approach,116 which emphasizes
the proactive role of the Court in the building of an EU equality policy.
The present book belongs to the second category of literature to the extent that it
does not examine EU equality law as a branch of equality law. However, it does not
look at the contribution of EU equality law to a normative model of social redistri-
bution or examine it solely from an institutional perspective. Instead, the dynamics
of EU equality law are considered as a test case for the development of fully fledged
or autonomous fundamental rights policies at EU level. The book provides an in-
tegrated analysis of equality law, as tackled by EU institutions and the EU toolbox,
in order to give flesh to a self-standing (ie detached from internal market concerns)
fundamental rights policy. It critically analyses EU equality law as the first117—and
in several ways most accomplished118—fundamental rights policy of the EU and
seeks to draw lessons for other emerging EU fundamental rights policies.
The examination of an EU fundamental rights policy can fall into a third cat-
egory of literature on the ‘social model of European citizenship’.119 This model
emerged in the 1990s. It supports the view that a stronger set of EU social rights
would enhance European integration by putting flesh on the bones of the concept
of European citizenship.120 In the early 2000s, Bell, in particular, provided useful
reflections on the extent to which EU anti-discrimination law indeed contributes
to such a model by contrast to the ‘market integration model’, on which the pro-
cess of European integration is largely based.121 Although reference will be made
to the ‘social model of European citizenship’ or related concepts that indeed shed
light on the dynamics of EU equality law from the 1990s onwards, this book does
not seek to further tie EU equality law to this model for a number of reasons.122
115 Somek (n 36); in reaction to these views, see also Colm O’Cinneide, ‘Completing the
Picture: The Complex Relationship between EU Anti-Discrimination Law and “Social Europe” ’ in
Nicola Countouris and Mark Freedland, Resocialising Europe in a Time of Crisis (CUP 2013) 118–37.
116 Alec Stone Sweet and Rachel Cichowski, ‘Sex Equality’ in Alec Stone Sweet (ed), The Judicial
Construction of Europe (OUP 2004) Ch 4.
117 This is understood from a historical perspective.
118 This is the case pending developments on the right to private life and the protection of
personal data.
119 Commission (EC), ‘For a Europe of Civic and Social Rights’ (n 84) 25, 33; see also Bell (n 50) 12.
120 eg Commission (EC), ‘For a Europe of Civic and Social Rights’ (n 84) 25–26; see also Siofra
O’Leary, ‘The Relationship between Community Citizenship and the protection of Fundamental
Rights in Community Law’ (1995) 32 CML Rev 519.
121 Bell (n 50).
122 The reasons listed below build on nuances introduced by Mark Bell at the end of his book in
2002: Bell (n 50) 194–95 and also 205. While he suggested bridging the gap between the market
21
As made clear in the introduction, and as will be elaborated upon in this book,
the way EU equality law has developed over the past fifteen years has significantly
(although admittedly not entirely) departed from its origins in both EU internal
market and EU social policies.123 This field of law is developing along related
but distinct lines. In fact, it may be precisely because anti-discrimination is not
a traditional social policy tool that its rapid development at EU level has been
possible.124 Second, the development of EU equality law, as it was shaped in the
post-Amsterdam era, has actually been made with little reference to the concept
of citizenship outside academic circles. In contrast, there has been heavy reliance
on the fundamental rights discourse. Third, EU equality law largely applies to EU
and non-EU citizens alike, thus making it difficult to assimilate its development
with that of EU citizenship.
integration and social citizenship model by reference to the market participation model (196–97), I ad-
dress it in more simple terms by reference to fundamental rights (detached from social policy as such).
123 See Chapter 3, section A.3.b.
124 Relying on this point to highlight the shortcomings of EU anti-discrimination policy, see Somek
(n 36).
125 eg Alexander Somek, ‘A Constitution for Antidiscrimination: Exploring the Vanguard Moment
of Community Law’ (1999) 5 ELJ 243, 243; Aileen McColgan, Discrimination, Equality and the Law
(Hart Publishing 2014) 14–37.
126 eg Koukoulis-Spiliotpoulos (n 12) 335. 127 Nikolaidis (n 98) 29. 128 ibid 9.
129 See also Tridimas (n 12) 64.
2
2
Checks and Balances in the Process
of Fundamental Rights Law-Making in the EU
1 Such as consumer protection policy (Article 169 TFEU) or public health policy (Article 168 TFEU).
2 See also Chapter 1, section C.
3 Charilaos Nikolaidis, The Right to Equality in European Human Rights Law: The Quest for Substance
in the Jurisprudence of the European Courts (Routledge 2015) 14.
4 Donald Neil MacCormick, ‘Rights in Legislation’ in PMS Hacker and Joseph Raz (eds), Law,
Morality and Society: Essays in Honour of H.L.A. Hart (Clarendon Press 1977) 191.
5 ibid 191.
EU Equality Law: The First Fundamental Rights Policy of the EU. Elise Muir © Elise Muir 2018. Published
2018 by Oxford University Press.
23
Siebentes Kapitel.
Einleben ins Volkstum.
Massassi, Ende Juli 1906.