EQUALITY LAW IN AN ENLARGED EUROPEAN UNION Part 1 ppt

EQUALITY LAW INAN ENLARGED EUROPEAN UNION European Union equality and anti-discrimination law was revolutionised by the incorporation of Article 13 into the EC Treaty, adding new discrim

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EQUALITY LAW IN

AN ENLARGED EUROPEAN UNION

European Union equality and anti-discrimination law was revolutionised

by the incorporation of Article 13 into the EC Treaty, adding new discrimination grounds and new possibilities This comprehensive vol- ume provides a fresh approach to Article 13 and its directives; it adopts

anti-a contextuanti-al franti-amework to equanti-ality anti-and anti-anti-discriminanti-ation lanti-aw in the European Union Part I deals with the evolution of Article 13, demo- graphic and social change and the interrelationship between European equality law and human rights Part II contains expert essays on each of the Article 13 anti-discrimination grounds: sex, racial or ethnic origin, religion or belief, disability, age and sexual orientation, with common themes weaving throughout This book will be of interest to everyone con- cerned with combating discrimination, academics, NGOs, lawyers, human resource professionals, employers, employees, research students and many others in the European Union and beyond.

HELEN MEENAN holds the Jean Monnet Chair at Kingston University Her research interests include age discrimination, human rights, elder law, European company law and European social policy.

EQUALITY LAW IN

AN ENLARGED EUROPEAN

UNION

Understanding the Article 13 Directives

EditorHELEN MEENAN

Cambridge, New York, Melbourne, Madrid, Cape Town, Singapore, São Paulo Cambridge University Press

The Edinburgh Building, Cambridge CB2 8RU, UK

First published in print format

ISBN-13 978-0-521-86530-2

ISBN-13 978-0-511-36631-4

© Cambridge University Press 2007

2007

Information on this title: www.cambridge.org/9780521865302

This publication is in copyright Subject to statutory exception and to the provision of relevant collective licensing agreements, no reproduction of any part may take place without the written permission of Cambridge University Press.

ISBN-10 0-511-36631-0

ISBN-10 0-521-86530-1

Cambridge University Press has no responsibility for the persistence or accuracy of urls for external or third-party internet websites referred to in this publication, and does not guarantee that any content on such websites is, or will remain, accurate or appropriate.

Published in the United States of America by Cambridge University Press, New York www.cambridge.org

hardback

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3 Humanrights and European equality law 73

christopher mccrudden and haris kountouros

4 Demographic, social change and equality 117

viii preface

should receive equal pay for equal work and the principle of free movement

of workers within the Community, without discrimination on grounds

of nationality These founding principles have developed in rich and ied ways More recent EU anti-discrimination grounds breathe with theirmemory and their development through the case law of the EuropeanCourt of Justice and secondary legislation

var-The concrete emergence of a broader equality culture can be seen,above all, in the Treaty of Amsterdam’s amendment of the EC Treaty

in 1999, with the inclusion of Article 13 The proclamation of the EUCharter of Fundamental Rights in 2000, and the recent cautious expansion

of European non-discrimination law into the provision of goods andservices, support the idea of a new equality era Following the most recentenlargements, the European equality matrix must now rise to meet twochallenges: (1) cater for the rich diversity brought about by the additionand integration of new EU Member States; and (2) ensure the workability

of the Article 13 Directives, which represent a major positive change forthe individual even in most, older Member States Yet these new groundsare predictable and possibly conservative Their addition may be seen inretrospect as an important point on the journey but far from the end ofthe road

We now live in a newly enlarged European Union, increasingly ‘united

in diversity’ so European equality law requires a different and deeperacademic scrutiny at this point in time The authors have chosen the self-selecting subject of Article 13 EC and its grounds of sex, racial or ethnicorigin, religion or belief, disability, age and sexual orientation which may

be protected from discrimination thereunder, as a discreet and logicalfocus for this book However, they have adopted a unique contextual andthematic approach to their work They deal with all of the Article 13grounds in a single academic book, as they have much in common byvirtue of their cohabitation in this important provision and the family ofresulting Directives Surprisingly, this approach is rarely taken outside therealm of the textbook The authors also examine these grounds against acontextual background with Article 13 providing the first and most imme-diate context for them all The contextual and thematic approaches aim toachieve distinctive insights and perspectives on these non-discriminationgrounds They also seek to make a striking contribution to the presentbody of mainly journal literature on Article 13 The authors are faced inthe first place with the uniqueness of each Article 13 ground as a humancharacteristic In the second place, these grounds share many commonand similar provisions within the Article 13 legislation However, very

preface ix

distinct legal exceptions and provisions exist within this legislation forsome of their number namely, disability, race, sex, age and religion orbelief Intersections between these grounds and issues of multiple iden-tity and multiple discrimination only serve to make their scrutiny moreinteresting and more complex

Thus the authors have constructed this book around three importantendeavours: (1) to locate and examine each Article 13 ground within itsDirective and as a component of an integrated approach to combating dis-crimination and promoting equality, so that differences among them andany exceptions and special provisions for them may be better understood;(2) to set this understanding against three carefully chosen and salientcontexts, the history and evolution of Article 13 EC, European HumanRights and demographic and social change; and (3) to address certaincommon issues, questions and themes including, human rights, access tojustice and the effects of enlargement on each ground, which help to bindthe chapters together This solidly constructed approach aims to achieve acertain level of coherence among the diverse authorship and grounds, yetits outcomes will doubtless also illuminate areas where grounds can only

be converged so far The emergent conclusions both convergent and gent will be one of the main strengths of this book, which will reveal freshinsights and make a meaningful and timely contribution to the existingbody of literature in this field

diver-The structure of this book is designed to support a strong and ciously constructed contextual approach Part I contains the context-setting chapters and PartIIcontains a chapter on each of the grounds in

judi-Article 13 EC This book also brings together a de novo international group

of authors with a rich command of their subject Many of the authors aremembers of the European Network of Experts on non-discriminationand the European Networks of Experts on disability and equality betweenmen and women, among many other high profile committees

The starting point for this volume was a private workshop, whichenabled the authors to set about writing with a shared vision The result-ing approach nonetheless aims to preserve the freshness and passion ofthe authors, to connect the authors and their chapters in all their diver-sity and generate stimulating thoughts and conclusions Whether we havefulfilled our mission in this rewarding enterprise I will leave to you, thereader, to decide

Helen MeenanJuly 2007

per-Helen MeenanJuly 2007

list of contributors xiii

European Law (1998–2002) and Head of the Law School (2001–2002)

He was Head of Legal Policy and Advice at the Equality Commission forNorthern Ireland from 2002–2005 Much of his professional work hascentred upon issues of EU sex equality law and now the wider EU equal-ity law agenda Most recently he has been closely involved in EU equal-ity training programmes with Maastricht University and the EuropeanDisability Forum He has also acted as UK National Expert in a Euro-pean Commission funded project mapping non-employment equalitylaw across the EU He is now an employment and equality law consultant(www.barryfitzpatrickconsulting.co.uk)

Dr Haris Kountouroshas specialised in European Labour Law From

1999 to 2004 he was a Visiting Lecturer in European Law at King’s lege London He has also taught Legal Theory at London MetropolitanUniversity and has given a number of lectures on European EmploymentLaw at Kingston University His published work concentrates on EU law,labour law and related themes

Col-Professor Christopher McCruddenLLB (1974, first class honours),Queen’s University, Belfast; LLM from Yale (1995); D Phil from OxfordUniversity (1981); holds an honorary LLD from Queen’s University,Belfast (2006) He is a Fellow and Tutor in Law, at Lincoln College,Oxford; Professor of Human Rights Law at the University of Oxford;non-practising Barrister-at-Law (Gray’s Inn; Bar of Northern Ireland);Overseas Affiliated Professor of Law at the University of Michigan LawSchool He is a member of editorial boards of several journals, including

European Public Law, the Oxford Journal of Legal Studies, the International Journal of Discrimination and the Law, and the Journal of International Economic Law, as well as being co-editor of the Cambridge University

Press Law in Context series Public service: UK member of the European

Commission’s Expert Network on the Application of the Gender ity Directives; scientific director of the European Commission’s Network

Equal-of Experts on Non-Discrimination, member Equal-of the Procurement Boardfor Northern Ireland His published work spans among others, equalityand non-discrimination law, international, European and comparativehuman rights, public procurement and international law

Helen Meenanhas held the Jean Monnet Chair in European Law atKingston University since 1998 She read law at University College Dublin(BCL), European Business Law at the University of Amsterdam (LLM) andstarted her working life as a solicitor of the Irish Courts Helen has worked

xiv list of contributors

as a consultant to TAEN (the Age and Employment Network) and AgeConcern England and speaks and publishes nationally and internationally

on all aspects of age discrimination She has also lectured to judges andjurists from all EU Member States (JHMeenan@tiscali.co.uk)

Professor Ann Numhauser-Henning,LLD, is professor of Civil Law atthe Law Faculty, Lund University, Sweden and has been the head of theNorma Research Programme since its start in 1996 She is currently alsothe Pro-Vice-Chancellor of Lund University She has written widely onlabour law, especially employment law and non-discrimination law Amore recent field of research is social security in a European integrationperspective She is a member of the European Commission’s Network ofLegal Experts on Equal Treatment between Men and Women; the Com-mission’s Network on Non-Discrimination and the Commission’s Net-work on Training and Reporting on European Social Security

Professor Gwyneth Pittis Professor of Law at Kingston University Shepreviously taught at the Universities of Nottingham, Leeds and Hudders-field, specialising in employment, discrimination and commercial law.Gwyneth is the author of a number of books and articles on employmentand discrimination law She is a member of the editorial committee of the

Industrial Law Journal.

Professor Gerard Quinnis a professor of law at the National University

of Ireland (Galway) He specialises in international and comparative ability law He is a member of the Irish Human Rights Commission and aformer First Vice President of the European Committee of Social Rights(Council of Europe’s European Social Charter) He is a member of thescientific board of the EU Network on Discrimination Law He is a formerofficial at the European Commission and a former Director of Research

dis-of the Law Reform Commission dis-of Ireland His ‘Study on the Current Useand Future Potential of UN Human Rights Instruments in the Field ofDisability’ which he co-directed was published by the Office of the UnitedNations High Commissioner for Human Rights in 2002 He led the dele-gation of Rehabilitation International to the UN Working Group, whichdrafted the initial text of the recently agreed UN Treaty on the HumanRights of Persons with Disabilities His current research focuses on the

UN disability treaty and on internet accessibility for persons with ities He is a barrister-at-law (King’s Inns) and graduate of Harvard LawSchool His first child has a disability

disabil-xvi list of abbreviations

EHRLR European Human Rights Law Review

EIDHR European Initiative for Democracy and Human RightsELRev European Law Review

ENAR European Network Against Racism

EOC Equal Opportunities Commission

ESC European Social Charter

ETD Equal Treatment Directive

ETS European Treaty Series

ETUC European Trades Union Congress

ETUI European Trade Union Institute

EUCFR European Union Charter of Fundamental RightsEUI European University Institute

EUMap EU Monitoring and Advocacy Program

EUMC European Union Monitoring Centre on Racism and

Xenophobia

EWHC High Court (England and Wales)

EYPD European Year of Young Persons with DisabilitiesFET Fair Employment Tribunal

FRA Fundamental Rights Agency

GDP Gross Domestic Product

GOQ Genuine Occupational Qualification

GOR Genuine Occupational Requirement

HLG High Level Group

ICCPR International Covenant of Civil and Political RightsICERD International Convention Against All Forms of Racial

Discrimination

ILGA International Gay and Lesbian Association

ILO International Labour Organisation

KB Law Reports: Kings Bench

LGB Lesbian Gay Bisexual

LTR Long Term Resident

list of abbreviations xvii

NBER National Bureau of Economic Research

NGO Non-Governmental Organisation

NIACE National Institute of Adult Continuing EducationOECD Organisation for Economic Cooperation and

Development

OMC Open Method of Co-ordination

PRIAE Policy Research Institute on Ageing and Ethnicity

QB Law Reports: Queens Bench

RAXEN European Racism and Xenophobia Information NetworkRED Race Equality Directive

SCR Supreme Court Reports (Canada)

SI Statutory Instrument

SO Sexual Orientation

TCN Third Country National

TEU Treaty on European Union

UDHR Universal Declaration of Human Rights

UKHL House of Lords (UK)

table of cases xix

British Airways Plc v Starmer [2005] IRLR 862

Brown v Board of Education 347 US 483 (1954)

Brunnhofer v Bank der ¨ Osterreichischen C-381/99 [2001] ECR I-4961 Busch v Klinikum Neustadt GmbH & Co C-320/01 [2003] ECR I-2041 Byrne v Fas DEC-E2002-045

C v Iarnrod Eireann, DEC E/2003/054

C.P.M Meeusen v Hoofddirectie van de Informatie Beheer Groep C-337/97

[1997] ECR I-3289

Campbell and Cosans v UK (1982) 4 EHRR 293, 304

Centre public d’aide sociale de Courcelles v Lebon C-316/85 [1987] ECR

2811

Chac´on Navas v Eurest Colectividades SA C-13/05 [2006] ECR 0000 Chappell v UK App No 12587/86, 53 D & R 241 (1987)

Choudhury v UK, App No 17439/90 (1991) 12 HRLJ 172

Coleman v Attridge Law Case No 2303745/2005 Decision of Employment

Tribunal, 17 February 2006

Coleman v Attridge Law C-303/06 pending

Commission v Austria C-133/05 [2006] ECR 0000

Commission v Austria C-203/03 [2005] ECR I-935

Commission v Austria C-335/04 [2005] ECR 0000

Commission v Belgium C-278/94 [1996] ECR I-4307

Commission v Finland C-327/04 [2005] ECR 0000

Commission v Finland C-99/05 Removed from register 18/5/2006 Commission v France C-35/97 [1998] ECR I-5325

Commission v Germany C-329/04 [2005] ECR 0000

Commission v Germany C-43/05 [2006] ECR 0000

Commission v Luxembourg C-320/04 [2005] ECR 0000

Commission v Luxembourg C-70/05 [2005] ECR 0000

Confidential parties C-2004/150, 15 November 2004, Dutch Equal

Treat-ment Commission

Connolly v Commission C-274/99 P [2001] ECR I-1611

Copsey v WWB Devon Clays Ltd [2005] IRLR 811

Council v Hautala C-353/99 P [2001] ECR I-9596

D and Sweden v Council C-122 & 125/99 P [2001] ECR I-4319

D.H and Others v Czech Republic App No 57325/00, Judgement of the

Court, 7 February 2006

Dahlab v Switzerland App No 42393/98 (2001)

Dawkins v Dept of the Environment [1993] IRLR 284

xx table of cases

Defrenne v Sabena (Defrenne III) 149/77 [1978] ECR 1364

Dekker v StichtingVJV C-177/88 [1990] ECR I-3941

Deutsche PostAG v Elisabeth Sievers C-270–97 [2000] ECR I-933

Deutsche TelekomAG v Lili Schroeder C-50/96 [2000] ECR I-743

De Weerd (nee Roks) and Others v Bestuur van de Bedrijfsvereniging voor

de Gezondheid, Geestelijke en Maatschappelijke Belangen and Others

C-343/92 [1994] ECR I-571

Di Lenardo Adriano Srl v Ministero del Commercio con l’Estero C-37/02

and C-38-02 [2004] ECR I-6911

Dory v Germany C-186/01 [2003] ECR I-2479

Dudgeon v UK (1982) 4 EHRR 149

Elsner-Lakeberg C-285/02 [2004] ECR I-5861

Equality Authority v Ryanair DEC-E-2000-14

ERT v DEP & Sotirios Kouvelas C-260/89 [1991] ECR I-2925

F´elix Palacios de la Villa v Cortefiel Servicios SA, Jos´e Maria Sanz Corral and Martin Tebar Less C-411/05 pending

Finanzamt K¨oln-Alstadt v Schumacker C-279/93 [1995] ECR I-225 Fishermen’s Organisations and Others C-44/94 [1995] ECR I-3115 Flexo Computer Stationery Ltd v Kevin Coulter EED 2003–13, 9 October

2003

Francovich and Bonifaci v Italy C-6 and 9/90 [1991] ECR I-5357

Glass v UK App No 61827/00, 18 March 2003 EHRR

Christine Goodwin v UK App No 28957/95, Judgment 11 July 2002 Grant v Southwest Trains Ltd C-249/96 [1998] ECR I-621

Haakert v Pensionsversicherungsantalt der Angestellten, C-303/02 [2004]

en Ambachten 75/63 [1964] ECR 177

Hughes v Aer Lingus DEC-E2002-049