EQUALITY LAW IN AN ENLARGED EUROPEAN UNION Part 4 doc

Second, it would have providedthat ‘[the Union] shall respect its rich cultural and linguistic diversity, andshall ensure that Europe’s cultural heritage is safeguarded and enhanced’.Und

The Constitutional Treaty would have signaled some positive changes inthis regard: Article I-3 would have listed the objectives of the Union; ArticleI-3(1) would have reinforced Article I-2, discussed above, and providedthat ‘the Union’s aim is to promote peace, its values and the well-being ofits peoples’; Article I-3(3) would have preserved the reference to ‘equalitybetween men and women’ as a specific objective The same paragraph,however, introduced a novelty and provided further that ‘[the Union]shall combat discrimination’ The provision did not target a specificform of discrimination; rather any form of discrimination appeared tocome under the scope of Article I-3(3), although the very generality ofthis provision risked diluting its strength in practice During the draftingprocess the Working Group on Social Europe had proposed that ‘non-discrimination on the basis of racial or ethnic origin, religious or sexualorientation, disability and age’ be added as one of the objectives underArticle I-3,71but this call found no response in the adopted text.

Article I-3(3) would have contained two other references which arerelevant to human rights and non-discrimination First, it would haveprovided that ‘the Union shall promote solidarity between gen-erations’ This is particularly pertinent to the issue of age discrimina-tion, since combating such discrimination is arguably a precondition forachieving solidarity between generations Second, it would have providedthat ‘[the Union] shall respect its rich cultural and linguistic diversity, andshall ensure that Europe’s cultural heritage is safeguarded and enhanced’.Undoubtedly, respect and promotion of cultural and linguistic diversityrequires respect and promotion of related rights, while the duty ‘to ensure’that Europe’s cultural heritage is enhanced may be read as implying a duty

of positive action to this end, as well as (possibly) the prohibition of crimination based on language.72Finally, the fourth paragraph of ArticleI-3 would have set out the objectives in respect of the Union’s dealingswith the world community, and this included the obligation to contribute

dis-to the protection of human rights.73The Reform Treaty would adopt anidentical approach, by incorporating these provisions in a new Article 3TEU

The concept of equality (non-discrimination) also features as a cific policy objective in various guises in existing Community law First,with regard to nationality, the principle of non-discrimination is laid

spe-71 Final report of Working Group XI on Social Europe, CONV 516/1/03 REV 1, para 22.

72 Cf the 1995 Framework Convention for the Protection of National Minorities and the

1992 European Charter for Regional or Minority Languages.

73 See also Art III-242.

down in Article 12 EC and other provisions in the area of fundamentalfreedoms These provisions also act as legal bases on which measures tocombat such discrimination and promote market integration can be, andhave been, enacted.74Second, there is the familiar Article 141 EC, whichaims to promote equality between men and women The same provisionforms a legal basis for the adoption of relevant measures.75Third, underArticle 13 EC the Council is empowered to adopt measures to combatdiscrimination based on sex, racial and ethnic origin, religion or belief,disability, age or sexual orientation.76 Importantly, however, Article 13

is not self-executing; rather it empowers the Community to bring ward legislation to further the goals set out in the article The Directivesthat form a primary focus of this book have been enacted on this legalbasis.77

for-Finally, the concept of non-discrimination is relevant to the aim ofthe Community, set out in Article 136 EC, to promote employment andimprove living and working conditions, so as to make possible their har-monisation while improvement is being maintained The Council in co-decision or consultation with the Parliament, or the social partners, mayadopt measures in a range of fields, including ‘working conditions’ and

‘equality between men and women with regard to labour market tunities and treatment at work’.78 Two Agreements concluded by thesocial partners on part-time and fixed-term work have been implemented

oppor-by Council Directives and establish the principle of equal treatment forthese workers engaged in these forms of employment.79The Agreementsconstitute a basic element of the European social model, not only because

74 See Arts 39, 40, 43, 49, 50 EC The Reform Treaty would preserve these provisions with some small modifications.

75 Art 141(3) EC.

76 Article 13 EC becomes Art III-124 in the Constitution, with the difference that where the Council adopts measures rather than merely consulting the Parliament, it will need to obtain its consent.

77 Council Directive 2000/43/EC [2000] OJ L180/22; Council Directive 2000/78/EC [2000]

OJ L303/16; Council Directive 2004/113/EC [2004] OJ L373/37.

78 Article 137(1)(b) and (i) Both these fields fall under the co-decision procedure In tion, Art 140 EC enables the Commission to proceed with a series of actions to encourage co-operation between Member States and facilitate co-ordination of their action in the social policy fields under the Social Chapter.

addi-79 Council Directive 97/81/EC, concerning the framework agreement on part-time work concluded by UNICE, CEEP and the ETUC [1998] OJ L14/9, as extended to the UK by Council Directive 98/23/EC [1998] OJ L131/10; Council Directive 1999/70/EC, concerning the framework agreement on fixed-term work concluded by ETUC, UNICE and CEEP [1999] OJ L175/43, corrigendum [1999] OJ L244/64.

they seek to improve the working conditions of atypical workers, but alsobecause they are vital to the effort to promote equal treatment betweenmen and women.

The Lisbon strategy and non-discrimination

The basis for the development of non-discrimination policies and rules

in the Community is not confined to existing constitutional instruments,such as the EC and EU Treaties It is also located in political events and ini-tiatives It has been remarked that the prospect of enlargement ‘providedthe backdrop, and even to some extent the raison d’ˆetre, for the adoption ofthe [Article 13] measures’.80More generally, the development of humanrights in the Community order currently takes place against the back-drop of the Lisbon strategy An extremely ambitious project, the strategywas adopted by the Lisbon European Council in March 2000, and aims

to increase economic growth and competitiveness, improve job creationand quality in work and enhance social cohesion within a timeframe often years.81It is accompanied by a plethora of policy communications,action plans and targets in three main policy areas: economic, employ-ment and social The combating of discrimination, the development offundamental rights and the promotion of gender equality form key objec-tives within the broader social policy aim to enhance social cohesion.82Indeed it is quite impossible to understand the continuing evolution ofanti-discrimination policies, including the establishment of specialised

EU bodies to assist and monitor the implementation of the principle ofequal treatment,83 without appreciating the impetus given to issues ofequality by the launch of the strategy The importance of the strategyfor non-discrimination lies primarily with the rationale of the strategy.This acknowledges the positive impact that social policies, including anti-discrimination policies, have on economic growth and competitiveness

as well as employment growth.84 This approach differs markedly from

80 E Ellis, ‘The Principle of Non-Discrimination in the Post-Nice Era’, in Arnull and Wincott,

Accountability and Legitimacy in the European Union (Oxford University Press, 2002),

pp 291–305, at p 291 and see also pp 293–5.

81 European Council, Presidency Conclusions of the Meeting in Lisbon, 23–24 March 2000, para 5.

82 European Commission, ‘Social Policy Agenda’, COM(2000) 379 final, pp 20–1.

83 For instance, the European Institute for Gender Equality was conceived within the work of the Social Policy Agenda.

frame-84 European Commission Communication, ‘Employment and Social Policies: A Framework

for Investing in Quality’, COM(2001) 313 final See also D Fourage, Costs of Non-Social

the one that permeated the Treaty of Rome model, where social policieswere viewed merely as a product of economic development, rather than

a productive factor themselves

Within the parameters of the new policy reasoning, the development

of an environment free from discrimination which allows the flourishing

of the productive capabilities of disabled and older people is seen as vital

in facilitating the achievement of the strategy’s particular objectives toreach, by 2010, a general employment rate of 70 per cent and an employ-ment rate for older workers of 50 per cent (up from, respectively, 63 and

41 per cent, in 2004) Combating discrimination based on age, in ticular, is crucial for the Union’s effort to promote active ageing, meetthe demographic challenge and secure the sustainability of social secu-rity systems.85 In like terms, the elimination of discrimination againstwomen is a precondition to reaching the target of an employment ratefor women of 60 per cent, by 2010, and to unleashing Europe’s potentialfor greater economic growth.86Effective policies against discriminationbased on sex, age and racial or ethnic origin also form part of the strategy’saim to combat poverty and promote social inclusion, given that women,older people, ethnic and racial minorities are particularly vulnerable inthese respects.87This positive interplay between economic, employmentand social policies, which is at the heart of the Lisbon strategy, constitutestherefore at once an objective and the means with which the strategy’saims, including the combating of discrimination and the promotion ofequality, can be realised

par-Mainstreaming and the European Employment Strategy

‘Mainstreaming’, especially gender mainstreaming, has also gained muchprominence in recent years According to the Commission, ‘[gender]mainstreaming is the integration of the gender perspective into everystage of policy processes – design, implementation, monitoring and eval-uation – with a view to promoting equality between women and men It

Policy: Towards an Economic Framework of Quality Social Policies – and the Costs of Not Having Them Report for DG Employment and Social Affairs of the European Commission

(Brussels, 2003).

85 Cf Economic and Social Committee, ‘Opinion on Older Workers’ [2001] OJ C14/50; European Commission Green Paper, ‘Confronting Demographic Change: A New Solidar- ity Between the Generations’, COM(2005) 94 final.

86 COM(2000) 379 final, pp 18–20.

87Ibid., pp 12–13; European Commission, Employment in Europe 2004 Recent Trends and

Prospects (OOPEC, Luxembourg, 2004), p 129.

[also] means assessing how policies impact on the life and position of bothwomen and men – and taking responsibility to readdress them if neces-sary.’88Work on gender mainstreaming began in the mid-1990s, followingthe UN Women’s Conference in Beijing in 1995,89and was formalised atinstitutional level with the Treaty of Amsterdam in 1997 The Amster-dam Treaty added a specific provision, Article 3(2) EC, which providesthat ‘in all the activities referred to in [Article 3(1) EC] the Commu-nity shall aim to eliminate inequalities, and to promote equality, betweenmen and women’ Since 2001, an informal High Level Group on GenderMainstreaming, consisting of representatives from relevant departments

of Member States’ governments and chaired by the Commission, meetstwice a year in close co-operation with the Presidency in order to offersupport to Presidencies in identifying policy areas and topics to addressduring the meetings of the European Council.90

Mainstreaming is most developed in the employment field, in lar within the context of the European Employment Strategy (EES), which

particu-is adopted on the basparticu-is of Articles 137–138 EC and aims to promote jobcreation and quality and productivity in work EES has been described

as a ‘cyclical process’,91involving the preparation by the Commission ofEuropean Employment Guidelines and their adoption by the Council.Each Member State is required to take these into account in devisingand implementing their national employment policies, and to submit

‘National Action Plans’ to the Commission and the Council describinghow it plans to respond The Council may issue non-binding recommen-dations to Member States regarding their employment policies On thebasis of experience, new Guidelines are drafted and the process startsagain Issues of equality and non-discrimination have become prominentparts of the strategy For example, Council Decision 2005/600/EC, set-ting out guidelines for the employment policies of the Member States forthe years 2005–8, emphasises that ‘equal opportunities and combatingdiscrimination are essential for progress Gender mainstreaming and the

88 See European Commission, Gender Mainstreaming, General Overview at http://europa.eu.int/comm/employment social/gender equality/gender mainstreaming/ general overview en.html.

89 See European Commission, ‘Incorporating Equal Opportunities for Women and Men Into All Community Policies and Activities’, COM(1996) 67 final.

90 Visit http://europa.eu.int/comm/employment social/gender equality/gender

mainstreaming/gender/high level group en.html.

91 M Zysk, ‘Legal responses to the problem of age discrimination in the European Union: does the law fit its purpose’ (PhD thesis, EUI, December 2005), p 44, from which this paragraph draws extensively.

promotion of gender equality should be ensured in all action taken.’92How far the EES has been effective in driving Member States on employ-ment equality issues and its relationship to the delivery of human rights

is the subject of a lively debate.93 If applied effectively, mainstreaming,and in particular the approach taken in the EES, would be examples ofthe fourth approach to equality considered earlier.94

Mainstreaming was also addressed in the Constitutional Treaty cle 3(2) EC would have become Article III-116 and covered the activitiesreferred to in Part III of the Constitution In addition, however, the Con-stitutional Treaty would have ushered in a significant development withrespect to the other grounds of discrimination Article III-118 would haveprovided for the first time that:

Arti-In defining and implementing the policies and activities referred to in this Part, the Union shall aim to combat discrimination based on sex, racial or ethnic origin, religion or belief, disability, age or sexual orientation 95

It appears that the Reform Treaty would include equivalent provisions

in a Revised EC Treaty, to be renamed the Treaty on the functioning

of the Union (TFU) Lombardo has argued that the approach followed

in the Constitution-making process, reflected in the adopted provisions,fell short of transforming existing policy paradigms in a manner thatprioritises equality objectives among competing concerns.96Even so, theimportance of the mainstreaming provisions, in particular the extension

of mainstreaming to the grounds listed under Article 13 EC, should not

be underestimated The range of areas affected would be considerable Itwould include, amongst others, the internal market, economic and mon-etary policy, employment, social, agricultural, consumer protection andtransport policies, and the Union’s external policies The implicationscould potentially be much more far-reaching than what might initially

be imagined, although much would depend on how these mainstreaming

92 Council Decision 2005/600/EC, on Guidelines for the employment policies of the Member States [2005] OJ L205/21, at 23.

93See generally, G de B ´urca and B de Witte (eds.), Social Rights in Europe (Oxford

Uni-versity Press, 2005); M Bell, ‘Combating Racial discrimination through the European

Employment Strategy’, (2004) 6 Cambridge Yearbook of European Legal Studies, pp 52–73.

94 S Fredman, ‘Transformation or Dilution: Fundamental Rights in the EU Social Space’,

(2006) 12 European Law Journal, pp 41–60.

95 See also Art I-45 of the draft Constitutional Treaty which aimed at promoting democratic accountability: ‘in all its activities, the Union shall observe the principle of equality of its citizens, who shall receive equal attention from its institutions, bodies, offices and agencies.’

96 See E Lombardo, ‘Integrating or Setting the Agenda? Gender Mainstreaming in the

Euro-pean Constitution-Making Process’ (2005) 12 Social Politics, p 412.

provisions were implemented In this respect, it is suggested that a moreactive implementation would be required than what has so far beenachieved under the existing provision (Article 3(2) EC) Arguably, failure

on behalf of the Union institutions to meet the mainstreaming objectiveswhen designing and enacting legislation could render adopted acts liablefor judicial review before the Court.97

The Charter of Fundamental Rights of the European Union and equality

A major development in the area of fundamental rights in the EuropeanUnion has been the adoption of a Charter of Fundamental Rights in

2000.98 This holds the potential to contribute to the development of amore rights-oriented system legally, as well as contribute in more sym-bolic terms to the development of an EU rights-culture.99With particularreference to the concept of equality and non-discrimination, the Char-ter reinforces existing Community provisions and focuses the Union’sefforts towards the promotion of equality within a conceptual frameworkthat prioritises broader humanitarian over narrower economic consid-erations In considering the implications of the Charter for the futuredevelopment of European equality law, we are faced, however, with aneven more complex difficulty than in dealing with the draft Constitu-tional Treaty and the proposed Reform Treaty This is because the Charterhas both an independent status, as well as a status as part of the ReformTreaty were it to come into force We shall need to consider the implica-tions of the Charter if the Reform Treaty were adopted and if it is not (Allreferences to the specific Titles and Articles, for reasons of convenience,refer to the Constitutional Treaty as this is the text which at the time ofwriting (June 2007) is closest to that likely to be adopted by the ReformTreaty)

There is a specific Title on equality and three provisions under it makedirect reference to equality or non-discrimination.100 Interestingly, theCharter’s provisions reflect all four of the approaches to equality andnon-discrimination sketched out in the first part of this chapter

97 See Art 230 EC 98 [2000] OJ C346/1.

99 See F G Jacobs, ‘The EU Charter of Fundamental Rights’ in A Arnull and D Wincott,

Accountability and Legitimacy in the European Union (Oxford University Press, 2003),

pp 275–90, at 284–5.

100 In brackets we have included the Articles’ numbers as appearing in Part II of the stitution The other four provisions under the Equality Title are Art 22 (II-82), cultural, religious and linguistic diversity, Art 24 (II-84), the rights of the child, Art 25 (II-85), the rights of the elderly, and Art 26 (II-86), integration of persons with disabilities.

Con-Article 20 (II-80): equality before the law

Everyone is equal before the law

Article 21 (II-81): non-discrimination

1 Any discrimination based on any ground such as sex, race, colour, ethnic

or social origin, genetic features, language, religion or belief, political or any other opinion, membership of a national minority, property, birth, disability, age or sexual orientation shall be prohibited.

2 Within the scope of application of the Constitution and without dice to any of its specific provisions, any discrimination on grounds of nationality shall be prohibited.

preju-Article 23 (II-83): equality between men and women

Equality between women and men must be ensured in all areas, ing employment, work and pay.

includ-The principle of equality shall not prevent the maintenance or adoption

of measures providing for specific advantages in favour of the represented sex.

under-The Charter has not displaced existing EU law on fundamental rights,discussed above This is clear not least from proposal to include in theReform Treaty a provision which, as noted earlier, would commit theUnion to respecting fundamental rights as protected by the ECHR andconstitutional provisions common to the Member States In other words,both the ECHR and domestic constitutions continue to provide a refer-ence point for the determination of rights by the ECJ In developing itsfundamental rights jurisprudence, the Court is likely to be influenced bythe contents of the Charter, but not be restricted by it where other rightsnot currently identified by the Charter appear relevant and important inthe future The Charter, then, should be seen as ‘work in progress’ ratherthan the apex of the achievement of human rights in the EU Union lawshould be seen to be open to future evolution in ECHR and MemberStates’ domestic human rights law

The Charter is not presently directly legally binding, and because ofthis the ECJ has so far refrained from relying on its provisions However,several Advocates General and the Court of First Instance have seen theCharter as providing the basis for an interpretative framework apart fromits status as part of any future Treaty.101The Constitutional Treaty would

101See, for instance, Opinion of Tizzano AG in Case C-173/99 BECTU [2001] ECR I-4881, paras 26–8; Opinion of Jacobs AG in Case C-270/99 P Z v Parliament [2001] ECR I-

9197, para 40 and in Case C-50/00 P Uni´on de Peque˜nos Agricultores [2002] ECR I-6677,

have incorporated the Charter in PartIIand recognises its justiciability ingeneral.102On the other hand, bowing to political pressure not least fromthe UK Government, the Convention drafting the Constitutional Treatyinserted some amendments to the horizontal provisions of the Charter(Title VII) that would have had the effect of limiting the justiciability of anumber of the rights laid down in the Charter, in particular social rights ofthe type mostly found in Title IV on ‘solidarity’ In general, the horizontalprovisions of the Charter are of immense importance for understand-ing the implications of the Charter and we turn to examine these, asthese appear in the Constitutional Treaty, using the numbering appearingthere.

First, according to Article II-111(1),103 ‘the provisions of [the] ter are addressed to the institutions, bodies, offices and agencies of theUnion with due regard for the principle of subsidiarity and to the Member

Char-States only when they are implementing Union law’.104 As with the scope

of responsibility of Member States in respect of human rights in general,there is a debate as to the boundaries within which the Charter’s provi-sions will be binding on Member States The Explanations to the Charter

make explicit reference to the ERT judgment,105which suggests that ber States are bound by the Charter’s provisions even when derogatingfrom Community law (as for instance happens when derogating from thefundamental freedoms).106

Mem-Second, according to Article II-111(2),107the Charter ‘does not lish any new power or task for the Union, or modify powers and tasksdefined by the Constitution’ There are no EU powers to promote manyCharter rights A most striking example is Article 137(5) EC whichexcludes Community competence from the area relating to the right ofassociation and the right to strike,108yet the freedom of association and

estab-para 39; Opinion of Leger AG in Case C-353/99 P Council v Hautala [2001] ECR I-9596, paras 80–3; Mischo AG in Case C-20/00 Booker v Aquaculture [2003] ECR I-7411, para.

126 The Court of First Instance has also relied on the Charter See, for instance, Case

T-54/99 max.mobil Telekommunikation Service GmbH v Commission [2002] ECR II-313,

para 57.

102 See Art I-9(1).

103 Article 52(1) in the Charter 104 Emphasis added.

105Case C-260/89 ERT [1991] ECR I-2925 in which the Court held that national rules

derogating from Community law must conform with fundamental rights.

106See Council of the European Union, Charter of Fundamental Rights of the European

Union Explanations Relating to the Complete Text of the Charter, December 2000, p 73.

See also A J Men´endez, ‘Chartering Europe: Legal Status and Policy Implications of

the Charter of Fundamental Rights of the European Union’ JCMS 49 (2002), p 471, at

p 480.

107 Article 51(2) in the Charter 108 See Art III-210(6) replicating Art 137(5) EC.

the right to take collective action, including strike action, are explicitlyguaranteed in Articles 12 and 28 of the Charter.

Third, according to Article II-112(1),109 any limitation on the cise of the rights and freedoms recognised by the Charter must be pro-vided for by law, respect the essence of those rights and freedoms, beproportional and necessary to meet objectives of general interest recog-nised by the Union and the need to protect the rights and freedoms ofothers This provision is based on the Court’s jurisprudence in the area

exer-of fundamental rights, and is a broader exception than provided underthe ECHR.110In contrast to the ECHR, where limitations are stipulatedonly in respect of certain rights and freedoms,111the EU Charter applies

a general limitation provision that appears to limit, in principle, all ofthe rights recognised Under the ECHR, limitations on the rights must

be ‘necessary in a democratic society’, in pursuit of particular legitimateobjectives and are subject to the principle of proportionality The scope ofobjectives that may justify limitation on rights in the ECHR is, therefore,also more limited than in the EU Charter.112However, to read the Char-ter as providing a general limitation to all rights of such a broad scopewould be incorrect Article II-112(3)113acts as a safeguard to the level andscope of protection, providing that rights in the EU Charter that ‘corre-spond’ to the ECHR must be interpreted in line with the Convention,114without prejudice to Union law to provide more extensive protection

109 Article 52(1) in the Charter.

110Joined Cases C-37/02 and C-38/02 Di Lenardo Adriano Srl v Ministero del Commercio

con l’Estero [2004] ECR I-6911, para 82 See also, inter alia, Case C-44/94 Fishermen’s Organisations and Others [1995] ECR I-3115, para 55; Case C-200/96 Metronome Musik

[1998] ECR I-1953, para 21; and Joined Cases C-20/00 and C-64/00 Booker Aquacultur

and Hydro Seafood [2003] ECR I-7411, para 68.

111 See in particular Arts 8-11 ECHR and Article 1 (right to property) in Protocol 1 The latter right is subject to a broader range of limitations than existing in respect of Arts 8-11.

112 In theory, the principle of price stability, being a general objective under the proposed Reform Treaty, might justify limitation on the exercise of the Charter’s rights.

113 Art 52(3) in the Charter.

114 The ‘Explanations’ list the articles of the Charter where presently both the meaning and scope are the same as the corresponding articles of the ECHR as well as those whose meaning is the same as the corresponding articles of the ECHR but their scope is wider.

See Council of the European Union, Charter of Fundamental Rights of the European Union.

Explanations Relating to the Complete Text of the Charter, pp 75–6 It should be noted

that the ‘Explanations’ were given legal status by the Constitutional Convention which revisited the Charter and added a new paragraph to Art 52 Now, Art II-112(7) provides that ‘the explanations shall be given due regard by the courts of the Union and of the Member States’ See CONV 354/02, pp 10, 17.

Further, Article II-113115 provides that the Charter cannot be preted ‘as restricting or adversely affecting human rights and fundamentalfreedoms’ as recognised by Union law, international agreements con-cluded by the EU or Member States (including the ECHR) or by domes-tic constitutions In addition, Article II-114116 states that ‘nothing inthis Charter shall be interpreted as implying any right to engage in anyactivity or to perform any act aimed at the destruction of any of the rightsand freedoms recognised in this Charter or at their limitation to a greaterextent than is provided for herein’ The intention of these provisions is toset a minimum floor to the level of protection of the rights recognised bythe EU Charter corresponding to that guaranteed by the ECHR as well as

inter-to ensure consistency between the two instruments

A final important issue to be considered relates to what is now ArticleII-112(5) This provision was inserted by the Constitutional Conventionand states that: ‘The provisions of this Charter which contain principlesmay be implemented by legislative and executive acts taken by institutions,bodies, offices and agencies of the Union, and by acts of Member Stateswhen they are implementing Union law, in the exercise of their respective

powers They shall be judicially cognisable only in the interpretation of

such acts and in the ruling on their legality.’117Article II-112(5) applies a

distinction between subjective rights (subjektive Rechte, droits subjectifs)

and principles The latter do not create enforceable rights or positiveclaims for individuals, but are, rather, guiding principles for MemberStates or Union action They may, at most, serve as an aid to interpretationfor the courts of legislative or executive acts taken to implement theseprinciples, or as a standard to be applied in judicial review (review oflegality) of such legislative or executive acts

The new provision is ostensibly designed to enhance legal clarity.According to Working Group II, which tabled this provision, the dis-tinction ‘is consistent both with case law of the Court of Justice and withthe approach of the Member States’ constitutional systems to “princi-ples” particularly in the field of social law’.118Yet, as Ewing, Collins andMcColgan observe, ‘the puzzle about this distinction is that the Charterdoes not appear to draw a sharp distinction in its language between rightsand principles’.119Indeed, the Convention which drafted the Charter didnot follow suggestions made by the House of Lords Select Committee on

115 Article 53 in the Charter.

116 Article 54 in the Charter 117 Emphasis added 118 CONV 354/02, p 8.

119H Collins, K D Ewing and A McColgan, Labour Law: Text and Materials (2nd edn.,

Hart Publishing, 2005), p 9 For a critical assessment see S Prechal, ‘Rights v Principles,

the European Communities to draw a clear distinction within the ter between those rights which should be justiciable and those which aremerely aspirations or objectives.120 Some provisions, like Article 38 (II-88), which states that ‘Union policies shall ensure a high level of consumerprotection’, are clearly of an aspirational nature However, the scope ofthe new provision is broad enough to risk the interpretation of severalother rights under the Charter being seen as subject to the Member States.This weakens the Charter’s strength and undermines the uniform devel-opment of rights in the Community legal order Of particular concern arethe rights under the ‘solidarity’ and ‘equality’ Titles.

Char-Brussels European Council and the Charter of Fundamental Rights

We have so far considered the relationship between the Charter and theproposed Constitutional Treaty, which did not come into effect Under-standing the contours of that proposed relationship, however, helps usunderstand the approach proposed to be adopted under the ReformTreaty The European Council held in June 2007 agreed a complex set ofarrangements regarding the Charter, partly adopting the approach pro-posed in the Constitutional Treaty, partly not

First, it was agreed that the version of the Charter as adopted in the

2004 IGC would be re-enacted by the Parliament, the Council and the

Commission during 2007 and would be published in the Official Journal

of the European Union; the text of the Charter would not, however, be

included in the Reform Treaty itself Second, it was agreed that in place

of the arrangements adopted in the draft Constitutional Treaty, Article 6TEU on fundamental rights would be replaced with a new Article whichstates, in part: ‘The Union recognises the rights, freedoms and princi-ples set out in the Charter of Fundamental Rights [as re-enacted] which shall have the same legal value as the Treaties’ Under these pro-visions, then, the Charter would be given ‘legally binding value’, as thePresidency Conclusions put it.121 Third, a Declaration would be agreed

by the IGC responsible for adopting the Reform Treaty This ‘declaratoryprotocol’ (our term) would provide that the Charter of Fundamental

Or How to Remove Fundamental Rights From the Jurisdiction of the Courts’ in J W de

Zwaan, J H Jans and F A Nelissen (eds.), The European Union: An Ongoing Process of

Integration, (Liber Amicorum Alfred E Kellermann, 2004), p 177.

120 8th Report, Session 1999–2000, 16 May 2000, paras 144–6 Cf B Hepple, ‘The EU Charter

of Fundamental Rights’ (2001) 30 Industrial Law Journal 225, p 228.

121 Presidency Conclusions, European Council, Brussels, June 2007, Annex 1, para 9.

Rights, ‘which has legally binding force, confirms the fundamental rightsguaranteed by the European Convention on Human Rights and Funda-mental Freedoms and as they result from the constitutional traditionscommon to the Member States’, thus explicitly linking the Charter to thereference to human rights as part of the general principles of Union law,discussed above Fourth, several limits on the scope and operation of theCharter, which were already included in the text of the Charter as a result

of the Constitutional Convention’s proposals, would be reiterated Theprovisions of the Charter ‘shall not extend in any way the competences ofthe Union as defined in the Treaties’ (The ‘declaratory protocol’ wouldalso make clear that the Charter ‘does not extend the field of application ofUnion law beyond the powers of the Union or establish any new power ortask for the Union, or modify powers and tasks as defined by the Treaties’.)The rights, freedoms and principles in the Charter ‘shall be interpreted inaccordance with the general provisions in Title VII [the horizontal pro-visions] of the Charter governing its interpretation and application andwith due regard to the explanations referred to in the Charter, that set outthe sources of those provisions’

There was, however, considerable unease with this general approachamong some delegations, particularly the United Kingdom, Ireland andPoland, each of which negotiated limited escape routes The most fun-damental was that negotiated by the United Kingdom, which succeeded

in getting an agreement that an additional Protocol would be attached

to the TEU This was widely interpreted as seeking to prevent the use ofthe Charter to upset provisions in domestic British labour law, particu-larly those limiting the right to strike This new ‘UK Protocol’ (our term)would include a lengthy list of preambular clauses, listing various aspects

of the Charter which the UK government wished to have on record asagreed by the other Member States The Charter would be applied ‘instrict accordance’ with the provisions of the new Article 6 and Title VII

of the Charter itself The Charter would be applied and interpreted bythe courts of the United Kingdom ‘strictly in accordance with the Expla-nations referred to in that Article’ The Charter contains ‘both rights andprinciples’ and ‘provisions which are civil and political in character andthose which are economic and social in character’ The Charter ‘reaffirmsthe rights, freedoms and principles recognised in the Union and makesthose rights more visible, but does not create new rights or principles’

On the other hand, the United Kingdom accepted that the main point

of the Protocol would be to ‘clarify the application of the Charter inrelation to the laws and administrative action of the United Kingdom

and of its justiciability within the United Kingdom’, that the Protocol was

‘without prejudice to the application of the Charter to other MemberStates’, and ‘without prejudice to other obligations of the United King-dom’ under the treaties ‘and Union law generally’

In contrast to the relatively lengthy Preamble, there are two brief stantive articles of the Protocol These would provide, first, that the Char-ter ‘does not extend the ability of the Court of Justice, or any court ortribunal of the United Kingdom, to find that the laws, regulations oradministrative provisions, practices or action of the United Kingdom areinconsistent with the fundamental rights, freedoms and principles that

sub-it reaffirms’.122 Second, ‘for the avoidance of doubt’, the Protocol wouldprovide that ‘nothing in [Title IV] of the Charter [the provisions dealingwith “solidarity rights”, including the right to strike] creates justiciablerights applicable to the United Kingdom except in so far as the UnitedKingdom has provided for such rights in its national law’.123 Third, theProtocol would provide that ‘[t]o the extent that a provision of the Char-ter refers to national laws and practices, it shall only apply in the UnitedKingdom to the extent that the rights or principles that it contains arerecognised in the law or practices of the United Kingdom’.124

Poland and Ireland took somewhat different positions, and reservedtheir final decision on what to do about the application of the Charter totheir countries until the IGC responsible for approving the Reform Treaty,reserving their right to join both the ‘declaratory protocol’, and the ‘UKprotocol’ In addition, a Unilateral Declaration by Poland was attached

to the Presidency Conclusions, stating that: ‘The Charter does not affect

in any way the right of Member States to legislate in the sphere of publicmorality, family law as well as the protection of human dignity and respectfor human physical and moral integrity.’ This was widely interpreted asPoland’s response to its fear that the Charter might be used to interferewith aspects of Poland’s social legislation, for example that restrictingaccess to abortion, or limiting the rights of homosexuals in the area ofmarriage

Continuing developments on equality and human rights in the

European Union

In this section we touch briefly on some other notable future developments

in relation to human rights in the European Union that would have a directimpact on discrimination and equality A first issue concerns the accession

122 Article 1(1) 123 Article 1(2) 124 Article 2.

of the Union to the ECHR The ECJ has held that the Community does not

at present have competence to accede to the Convention.125This, however,would have changed with the coming into force of the ConstitutionalTreaty which provided in Article I-9(2) that ‘the Union shall accede to theEuropean Convention on Human Rights and Fundamental Freedoms.Such accession shall not affect the Union’s competences as defined in theConstitution.’ The Reform Treaty would include the same provision in anew Article 6 TEU

From the point of view of equality one specific issue that is raised bythe prospect of accession is whether the existing protections for equal-

ity under the acquis would be affected On the positive side, in certain

circumstances the judgments by the ECtHR can fill some of the gaps incoverage left by the EC equality legislation.126On the other hand, the con-cept of ‘discrimination’ under the Convention is more problematic, notleast because the approach to discrimination adopted in Article 14 ECHR

is a limited one, falling within the second approach discussed earlier It

is not a free-standing right As Leach remarks, ‘the “parasitic” nature ofthe right is one of the reasons why the Article 14 case law has been lim-ited’.127Moreover, it is not entirely clear whether or, if it does, how far theConvention incorporates the notion of ‘indirect discrimination’ What ismore, especially on the issue of sex discrimination, while EC law onlyallowed justifications in cases of indirect discrimination, the ECtHR has

in the past permitted justifications to be advanced also in cases of directdiscrimination, although this may be changing.128

However, as we noted above, the EU Charter provides that sponding’ rights have the same scope and meaning as laid down in theECHR but, where more extensive protection has been achieved by Com-munity law, the higher standard prevails.129This provision should act as

‘corre-a s‘corre-afegu‘corre-ard with respect to the concept of ‘discrimin‘corre-ation’ ‘corre-and its judici‘corre-altreatment, at least by the Court of Justice Yet, there remains the ques-tion as to whether in the long term these rather different approaches canco-exist and, if not, which will predominate If the Union also accedes toProtocol 12, which provides for a self-standing prohibition of discrimi-nation, some of the most important problems with respect to the issue

125See in this respect Opinion 2/94, Accession by the Community to the Convention for the

Protection of Human Rights and Fundamental Freedoms [1996] ECR I-1759.

126See, inter alia, Van Raalte v The Netherlands, no 20060/92 [1997] ECHR 6 (21 February 1997); Wessels-Bergervoet v The Netherlands, no 34462/97 [2004] 38 EHRR 793 (4 June

2002).

127Leach, Taking a Case to the European Court of Human Rights, p 178.

128Timishev v Russia 13 December 2005, paras 56–8.

129 See Art 52(3), or Art II-112(3) under the Constitution.

may be avoided However, Working Group II, which dealt with the issue

of accession to the ECHR, did not make any recommendations in respect

of the issue of acceding to the Protocols accompanying the Convention.The justification given in its final report was that such a question was ‘not

of a constitutional nature’, implying that it is a political question to bedecided by the EU institutions.130

A second issue for the future relates to the establishment of new tions in the Community that have equality issues as part of their mandate,

institu-in particular the EU Agency for Fundamental Rights The political sion for the establishment of a Fundamental Rights Agency (FRA) wasmade by the Brussels European Council in December 2003.131The FRAcame into operation on 1 March 2007.132 The FRA replaces the Euro-pean Monitoring Centre (EUMC) on Racism and Xenophobia that hasoperated since 1997.133 Its objective is ‘to provide the relevant institu-tions, bodies, offices and agencies of the Community and its MemberStates when implementing Community law with assistance and expertiserelating to fundamental rights in order to support them when they takemeasures or formulate courses of action within their respective spheres ofcompetence to fully respect fundamental rights’.134The responsibilities ofthe Agency include the evaluation of the practical impact of EU policiesand measures in the area of fundamental rights and the promotion ofrespect for rights across the Union The Agency is also responsible forpromoting and co-ordinating dialogue on fundamental rights with civilsociety and for establishing relevant networks Raising public awareness

deci-of fundamental rights is another responsibility.135The FRA should ate independently and its work should avoid duplication with the work ofnational and international human rights bodies, in particular the Council

oper-130 Final Report of Working Group II, CONV 354/02, p 11.

131 European Council, Presidency Conclusions of the Meeting in Brussels, 12–13 ber 2003 See, in general, C McCrudden, ‘The Contribution of the EU Fundamental Rights Agency to Combating Discrimination and Promoting Equality’, in P Alston and

Decem-O de Schutter (eds.), Monitoring Fundamental Rights in the EU: the Contribution of the

Fundamental Rights Agency (Hart, 2005).

132 Established by Council Regulation (EC) No 168/2007 of 15 February 2007.

133 Council Regulation 1035/97, establishing a European Monitoring Centre on Racism and Xenophobia [1997] OJ L151/11.

134 European Commission, ‘Proposal for a Council Regulation establishing a European Union Agency for Fundamental Rights’, COM(2005) 280 final See also European Commission,

‘The Fundamental Rights Agency: Public Consultation Document’, COM(2004) 693 final.

135 COM(2005) 280 final, draft Art 4–5.

of Europe and the Institute for Gender Equality.136 A separate Councildeclaration provides for the extension of the Agency’s advisory remit tocover the areas referred to in Title VI TEU concerning police and judi-cial co-operation in criminal matters.137Our earlier consideration of thediffering approaches to equality and non-discrimination highlights thedilemma of whether the pursuit of ground-specific strategies (the thirdapproach) is more effective in practice than pursuing the broad approach

of equality as rationality (the first approach) The debate over the formation of the EUMC into the FRA illustrates this tension, with someexpressing scepticism as to whether the broader approach will prove moreeffective

trans-Human rights and equality: more theoretical issues

Although there are common elements among all these differing tional, regional and EU legal norms and policy initiatives, in that each usesthe concepts of equality and non-discrimination, there are also clear dif-ferences One important issue for the future interpretation of the equalityDirectives is the extent to which the ECJ in particular regards the simi-larities as more important than the differences, or vice versa So, where

interna-do the differences lie? We have suggested that there are substantial ences in the conceptions of ‘equality’ and ‘non-discrimination’ involved

differ-In thislast section, we argue that there are also significant differences inthe conception of ‘rights’ involved as well

There are several important differences in the way in which rights areconceptualised in these different instruments First, there is the crucialdistinction between rights accorded to individuals as citizens, and rightsaccorded to individuals as individuals In the former approach, oftenadopted in domestic constitutional law, rights are protected essentially asaspects of citizenship The theory frequently advanced to support theserights is based on a loose notion of a social contract between individualswho came together to form the (new) state and agreed to accord eachother certain rights In this category we find political rights, such as the

136 Ibid., draft Arts 9 and 11(8) and draft Preamble, 15th recital Cf Parliamentary Assembly

of the Council of Europe, ‘Plans to set up a Fundamental Rights Agency of the pean Union’, Draft Resolution, points 10–12; European Parliament, ‘Resolution on the Promotion and Protection of Fundamental Rights: The Role of National and European Institutions, including the Fundamental Rights Agency’, 26 May 2005.

Euro-137 Declaration by the Council on Police and Judicial Cooperation in Criminal Matters, adopted at the Justice and Home Affairs Council, 15 February 2007, 6396/07 Add 1.

right to vote, but also economic rights, such as rights relating to socialsecurity benefits The process of European integration, in particular theevolution of the concept of EU citizenship, is having a major impact onthe entitlement to these rights, with Community law according access tothese rights on the basis of Community citizenship rather than domesticcitizenship.138

Particularly post-Second World War, a different approach to rights hasbeen developed and this is encountered in various international instru-ments This newer approach concentrates on vesting human rights inindividuals regardless of their citizenship status A country that has taken

on these human rights obligations will be required to accord these rights

to non-citizens within the jurisdiction of the state The ECHR is an ous example of this approach Although this approach typically concernssuch rights as the right to life, freedom from torture and degrading treat-ment, other rights, such as the right to property, may also be accorded

obvi-to non-citizens The EU Charter of Fundamental Rights, interestingly,divides rights into those attached to citizens and those attached to allwithin the jurisdiction, and includes equality rights in the latter category

In conceptual terms, the Directives adopted on the basis of Article 13 ECbelong to the second tradition, since they are inspired by ideas of equalityand non-discrimination in a context not linked primarily to the concept

of citizenship The reference to ‘persons’, rather than ‘citizens’ reinforcestheir ‘universalist’ nature Citizenship, or more accurately nationality,continues, however, to play a major (if limited) role in the scope andapplication of the Race and Employment Framework Directives becauseboth Directives ‘do not cover difference of treatment based on nationalityand [are] without prejudice to provisions and conditions relating to theentry into and residence of third-country nationals and stateless persons

on the territory of Member States, and to any treatment which arisesfrom the legal status of the third-country nationals and stateless personsconcerned’.139

A second important difference in the way rights are conceptualisedunder the different international, regional and domestic human rightsinstruments we have examined relates to the role of the state Undersome instruments, most commonly constitutional documents and inter-national, as well as regional, conventions and treaties, rights are accordedagainst the state, and against the state alone There are important ques-tions that often arise as to what constitutes ‘the state’, although private

138See, for instance, Case C-85/96 Martinez Sala v Freistaat Bayern [1998] ECR I-2691.

139 Article 3(2) in both Directives.

businesses usually fall outside the scope of those bodies obligated to accordhuman rights protections Other instruments protecting human rightsoften take a rather different approach, particularly where the method ofprotection is ordinary legislation addressing a particular issue In this casethe obligation is frequently placed on public and private bodies alike TheArticle 13 Directives adopt the latter approach insofar as they are intended

to require Member States to introduce legal obligations for private as well

as public persons.140

Yet, even where the obligation is placed on the state alone, the position

is frequently more complicated as the state is often under an obligation

to ensure that violations of rights by private parties are prevented In theCommunity legal context, and with regard to the Article 13 Directives

in particular, this is manifested by explicit provisions obliging MemberStates to provide for effective sanctions for breach of the national provi-sions adopted pursuant to the Directives.141It is also seen in the require-ments on Member States to ensure that provisions even under privatelaw – such as collective agreements – contrary to the principle of equaltreatment are declared null and void or are amended;142and, in the case

of the Race and the Sex Equality Directives, also by the obligation toestablish equality bodies to promote the principle of equal treatment.143Ultimately, an EU Member State may be liable for loss or damage caused

to an individual where this has resulted from the State’s failure to ment correctly Community law.144 Thus, for example, a Member Statemight be obliged to pay damages to a homosexual man who has beendismissed because of his sexuality, where domestic rules failed to trans-pose correctly the Employment Framework Directive so as to make thisunlawful

imple-There is, finally, a third distinction as regards the way in which rightsare conceptualised, in particular when applied to the concept of non-discrimination Essentially this relates to whether the right is seen as (i) amethod of delivering particular economic goals, for instance to facilitatemarket access, or (ii) as a method of delivering particular social policies,for instance social inclusion, or (iii) as a ‘human right’, where the right isregarded as an end in itself, not simply a means to an end

140 The obligation to transpose the Directives into domestic law remains an obligation of the state alone.

141 Council Directive 2000/43/EC, Art 15; Directive 2000/78/EC, Art 17; Directive 2004/113/EC, Art 14.

142 Council Directive 2000/43/EC, Art 14(b); Directive 2000/78/EC, Art 16(b); Directive 2004/113/EC, Art 13(b).

143 Council Directive 2000/43/EC, Art 13; Directive 2004/113/EC, Art 12.

144Joined Cases C-6 9/90 Francovich and Bonifaci v Italy [1991] ECR I-5357.

In the European Community, rights to equality (in respect of paybetween men and women) and non-discrimination (in respect of nation-ality) were originally conceived as legal instruments to ensure theestablishment and proper functioning of the common market.145 Sub-sequent political and legislative developments reflect broader socialconsiderations, leading to the recognition of new rights in a range ofareas, including on gender equality as part of a strategy of building asocial dimension to Community policy,146especially during the 1970s.147Simultaneously, existing rights, such as the right to equal pay, were being

remodelled on the basis of both economic and social considerations.148More widely still, this reflects the evolution of the Community from aneconomic one to a markedly more encompassing organisation Withinthis expanded scope for a broader social discourse, the right to equaltreatment was gradually emancipated from the need to be formally legiti-mated by economic justifications A parallel development has taken placewith other rights – and measures setting out such rights – in the broadersocial policy area.149So, for example, in the context of the Lisbon Strategy,

it is important not to lose track of the social value of equality and to guardagainst an over reliance on the economic benefits that anti-discrimination

145 See especially Arts 7, 48(2) and 119 EEC (now 12, 39(2) and 141 EC) Implicitly the principle of non-discrimination also appears in Arts 30, 52 and 59 EEC (now 28, 43 and 49 EC) Cf G More, ‘The Principle of Equal Treatment: From Market Unifier to

Fundamental Right?, in P Craig and G de B ´urca (eds.), The Evolution of EU Law (Oxford

University Press, 1999), pp 517–53, at pp 521–35; G de B ´urca, ‘The Role of Equality in

European Community Law’, in A Dashwood and S O’Leary (eds.), The Principle of Equal

Treatment in EC Law (Sweet & Maxwell, 1997), pp 13–34.

146 The adoption of Council Directive 76/207/EEC, on the implementation of the principle

of equal treatment for men and women as regards access to employment, vocational training and promotion, and working conditions [1976] OJ L39/40, is an example Cf Council Resolution of 21 January 1974 concerning a Social Action Programme [1974] OJ C13/1.

147J Kenner, EU Employment Law From Rome to Amsterdam and Beyond (Hart Publishing, 2003), pp 23–69; R Nielsen and E Szyszczak, The Social Dimension of the European Union

(3rd edn., Handelshøjskolens Forlag, 1997), pp 25–8.

148See Case 43/75 Defrenne v Sabena (No 2) [1976] ECR 455.

149 Compare, for instance, the Preambles to the Acquired Rights Directive and the tive Redundancies Directive in their original and amended versions twenty or so years later See Council Directive 77/187/EEC, on the approximation of the laws of the Mem- ber States relating to the safeguarding of employees’ rights in the event of transfers of undertakings, businesses or parts of undertakings or businesses [1977] OJ L61/26 and cf Council Directive 98/50/EC [1998] OJ L201/88; and Council Directive 75/129/EEC, on the approximation of the laws of the Member States relating to collective redundancies [1975] OJ L48/29 and cf Council Directive 98/59/EC [1998] OJ L225/16.