EQUALITY LAW IN AN ENLARGED EUROPEAN UNION Part 5 docx

demographic, social change and equality 137persons at the top of hierarchical organisations in firms, governmentsand bureaucracies, resist the progression and career advancement ofyounge

demographic, social change and equality 133

associated with the trend towards earlier retirement, influenced byincreasing national per capita income Longer education, shorter work-ing lives and longer retirement periods are all consequences of increasedwealth

Once again, these trends are not only age related but also gender related.For example, unlike men, female participation rates in the labour forcehave been increasing, even among older women Participation rates ofolder women are especially high in Nordic countries In Sweden, theyhave increased continuously since the 1950s and Sweden now has thehighest participation rates of older women (around 80 per cent for thegroup 55–59 and over 50 per cent for the group 60–64) This has partiallyoffset the decline in male labour force participation rates.64

Costs of health and long term care

As described by Casey et al.,65health care costs have risen rapidly as a share

of GDP in many countries Many, if not most, European countries haveintroduced measures to control costs and reforming healthcare systems

is already a major policy concern Looking forward, spending is expected

to increase further as the share of the elderly increases This reflects thefact that the per capita consumption of healthcare services by the elderly

is three to five times higher than for younger groups This will affect both

‘normal’ healthcare (hospital and ambulatory care and pharmaceuticals)

and care services for the frail elderly As seen in Table 1, for most Europeancountries, the projections indicate an average increase in health and long-term care spending of around 3–3.5 percentage points of GDP over the2000–2050 period Once again, there are wide cross-country differences,ranging from almost 5 per cent in the Netherlands to under 2 per cent inthe UK.66

Because of the wide range of factors at play, the importance of thisincrease is particularly difficult to judge Against this background, thecrucial issues for long-term care policies concern the appropriate level ofsupply of long-term care for the elderly, the most cost-effective pattern ofcare between hospitals, nursing homes and care in the home and the way

in which these services are supplied and financed.67

64 Auer and Fortuny, ibid., p 10.

65B Casey, H Oxley, E Whitehouse, P Antoline, R Duval and W Leibfritz, Policies for

an Ageing Society: Recent Measures and Areas for Further Reform, Economic Department,

Working Paper No 23 (OECD, 2003), p 9.

66 Ibid., p 35 67 Ibid., p 27.

136 equality law in an enlarged european union

Family and social consequences regarding care

The ageing of European society has68 also influenced family ties andresponsibilities As Kinsella and Phillips describe,69 while some socialanalysts suggest that vertical family bonds – tying together different gen-erations – have weakened over recent decades, this suggestion has beenrefuted by research findings in many countries Indeed, greater longevityactually makes bonds among adults more important than in the past and,while direct contact between generations may have lessened, indirect con-tacts are as strong as ever.70

Within this context, a heated debate has emerged in many countriesabout the so-called ‘decline of the family’ Some sociologists argue thefamily has been stripped down to its bare essentials: just two generationsand two functions (childbearing and financial and emotional support fornuclear family members) Other analysts argue that, while families havechanged over the last century, population ageing has actually extendedfamilies across generations and expanded their support functions overlonger periods.71

Finally, it should also be mentioned that in various European countrieselder-care has adopted an ‘international face’, as it has become a field ofwork for foreign workers The needs of these workers and the needs ofthe elderly in European countries have given rise to a global trend in thisfield, where a significant part of elder-care is actually foreign, replacingthe traditional family-based elder-care These changes have a profoundeffect on the wellbeing and care of older people.72

Politics and intergenerational conflict

The EU’s ageing revolution potentially entails political tension and unrest.Possible tensions and shifts in political clout of different generations maylead to political conflicts when larger and healthier groups of elderly

68 Ibid., p 35 69 Kinsella and Phillips (2005), p 27.

70V L Bengtson et al., ‘Families and Intergenerational Relationships in Aging Societies’, (2000) 2 Hallym International Journal of Aging 1, pp 3–10.

71 For an overview of the sociological approaches towards the ageing family see A stein, R Katz, D Prilutzkey and D Mehlhausen-Hasson, ‘The intergenerational solidarity

Lowen-paradigm’, in S O Daatland and K Herlofson, Ageing, Intergenerational Relations, Care

Systems and Quality of Life (NOVA – Norwegian Social Research, 2001), pp 11–30.

72B Ben-Zvi, ‘The Globalization of Nursing Care’, Haaretz (9 September 2002), C2; See also

S Vandergeest, A Mul, and H Vermeulen, ‘Linkages between migration and the care of

frail older people: observation from Greece, Ghana and the Netherlands’, (2004) 24 Ageing

and Society, pp 431–50.

demographic, social change and equality 137

persons at the top of hierarchical organisations (in firms, governmentsand bureaucracies), resist the progression and career advancement ofyounger people.73From the opposite direction, the argument will be thatthe elderly obtain an unfair share of resources compared to the generationswhich follow them.74

These political tensions might represent an ‘intergenerational conflict’within the European Union There is a growing debate in the literature

to what extent this conflict mirrors true intergenerational inequalities oropens the possibility of the breakdown of the so-called intergenerationalcontract.75 However, as asserted by Vincent, ‘The key politics of inter-generational equity is about legitimacy It is about the loyalty and com-mitment to different social groupings.’76As Phillipson77says, ‘we shouldnot “offload” the responsibilities for an ageing population to particulargenerations or cohorts’

Multiculturalism and social integration

Another important dimension of the increase in migration into the EU,over and above the traditional movements, is an inflow of immigrantswhose cultural and linguistic links with the host EU country are weaker.These new populations have serious difficulties in integrating into thelabour market and into society as a whole Even though there is still astrong element of self-selection in migration, the percentage of immi-grants whose mother tongue is the same as the official language of thehost country is small in most EU countries

When these foreigners age, as they do in the enlarged European Unionthese days, a whole new social issue arises Those young people from vari-ous countries who migrated to developed states in the 1950s and 1960s aretoday old people in these countries (e.g Japanese women who migratedwith their husbands to Britain in the post-1973 period) Because of theageing of former immigrants in the host countries, the elderly popu-lation is changing and becoming much more culturally heterogeneous

As a result, European countries have to cope with problems previously

73See F Fukuyama, The great disruption Human nature and the reconstitution of social order (Profile Books, 1999), ch 2 See also WWR, Generationally-Aware Policy, Reports to the

Government, Summary of the 55th report (The Hague, 2000).

74J A Vincent, Politics, Power and Old Age (Open University Press, 1999).

75 Ibid., p 121 76 Ibid.

77 C Phillipson, ‘Intergenerational conflict and the welfare state: American and British

per-spectives’, in A Walker (ed.), The New Generational Contract (UCL Press, 1996), p 219.

138 equality law in an enlarged european union

unknown, particularly in relation to multiculturalism, multiethnicismand the need to establish special cultural-sensitive social services for theaged.78

What have law and equality got to do with it?

In ‘Towards a Europe for All Ages’,79the Commission of European munities asserted that ‘demographic ageing will force European society

Com-to adapt and European people Com-to change their behaviour The extent Com-towhich these societal and behavioural changes can be brought about in apositive way will depend largely on the choice of policies put forward atEuropean, national and local level.’

Law is a central tool of policy It is through law that the state tains cohesion between its departments and agencies and ‘pursues con-crete objectives of political, ethical, utilitarian or some other kind’.80It isimpossible to understand the social situation of older people without anunderstanding and consciousness of their constitutional and legal situa-tion There is an unbreakable, dynamic link between law and the societywithin which it exists and which it serves.81

main-Therefore, the study, knowledge and investigation of the law can teach

us much about the sociological, historical and cultural background ofthe society it serves It reflects power relationships between various socialgroups, the rise and fall of particular groups as a result of social andpolitical processes, and the interests of each group In the words of JusticeOliver Wendell Holmes, Jr:

This abstraction called the Law is a ‘magic mirror’, [wherein] we see reflected, not only our own lives, but the lives of all men that have been! 82

Following on from Holmes’ insight, legal philosophers such as RoscoePound and the founders of modern sociology such as Durkheim and

78 See M Izuhara and H Shibata, ‘Migration and old age: Japanese women growing older in

British society’, Journal of Comparative Family Studies, 32(4) (2001), pp 571–86; and also PRIAE Policy Response: Equality and non-discrimination in an enlarged European Union –

Green Paper, submitted to the European Commission, August 2004.

79Commission of European Communities, Towards a Europe for All Ages: – Promoting

Pros-perity and Intergenerational Solidarity (Brussels, 1999), p 8.

80M Weber, Economy and Society (University of California Press, 1978), pp 644–5.

81V Vago, Law and Society (4th edn., Prentice-Hall, 1994).

82O W Holmes, ‘The Speeches of Oliver Wendell Holmes’, in R Posner, The Essential Holmes:

Selections From the Letters, Speeches, Judicial Opinions, and Other Writings of Oliver Wendell Holmes, Jr (University of Chicago Press, 1992).

demographic, social change and equality 139

Weber have discussed the social functions of the law These scholars, each

in his own different way, have maintained that it is impossible to define orrelate to the law in isolation from its social, cultural and historical context

It cannot be cut off from its social aspects Thus, according to some views,the law is:

a system of social choice, one in which government provides for the cation of resources, the legitimate use of violence, and the structuring of social relationships 83

allo-It is clear that the social change described in the previous parts raises manylegal questions: Is the right to an old-age pension valid when the pensionerceases to be a resident of the mother country and migrates to a foreignland? How is the right to health put into practice, and to what extent doeshealth insurance in the country of emigration cover the cost of health in thehost country?84Is the migrating pensioner entitled to vote in the country

of which he is a citizen when he is living abroad?85What is the citizenshipstatus of various groups of retired migrants throughout the EuropeanUnion with regard to various social entitlements?86 To what extent docurrent European social security laws include or exclude migrants?87The answers law gives to these questions and its interaction with real lifedirectly affects social realities This has been proven again and again Forexample, research in the field of retired European migrants demonstrates

83D Black, The Behavior of Law (Academic Press, 1976).

84 See E Mossialos and W Palm ‘The European Court of Justice and the Free Movement of

Patients in the European Union’, (2003) 56 International Social Security Review, pp 3–29.

85 The most developed network of agreements among national social security agencies to make payments to their citizens abroad is among the Member States of the Council of Europe The European Convention on Social Security was opened to signature in 1972 and accompanied by a Supplementary Agreement on the application of its provisions The key Regulation 1408/71 comprises over 100 articles on Social Security for Migrant Workers, which have been elaborated by hundreds of decisions at the European Court

of Justice and benefited millions of expatriate workers and pensioners See E

Eichen-hofer ‘How to Simplify the Coordination of Social Security’, European Journal of Social

Security, 2 (2000), pp 231–40 See also European Convention on Social Security, ETS

No 078; available at: http://conventions.coe.int/treaty/en/Treaties/Html/078.htm; plementary Agreement for the Application of the European Convention on Social Security, ETS No 078A, available at: http://conventions.coe.int/treaty/en/Reports/Html/078A.htm Since 1978, the US has established bilateral Social Security (‘totalization’) agreements that co-ordinate the US old age, survivors and disability (OASDI) benefits with those of other countries See www.ssa.gov/international/totalization agreements.html.

Sup-86 See L Ackers and P Dwyer, ‘Fixed laws, fluid lives: the citizenship status of post-retirement

migrants in the European Union’, (2004) 24 Ageing and Society, pp 451–75.

87 See G Vonk, ‘Migration, social security and the law: some European dilemmas’, (2001) 3

European Journal of Social Security, pp 315–32.

140 equality law in an enlarged european union

how the legal construction of ‘residency’ status affects social decisionsregarding migration Moreover, many returning retirees decide to return

to reside permanently in their country of origin if they believe such a movewill secure for them some advantage in public healthcare provision.88Indeed, law has responded to demographic change The ageing revo-lution has developed new spheres of knowledge, such as ‘elder law’ Onthe national level, since the 1980s, the field of elder law has gained grow-ing recognition.89 On the international level, in recent years, there aregrowing calls for the establishment of specific public-international tools

to handle the needs of older people around the globe.90 The essence ofthese developments is to try and connect law to the changing realities anddemographics

Conclusion

Demographic realities are substantially determined by economic andsocial circumstances as well as sociolegal institutions But they also influ-ence those circumstances and institutions through a variety of poten-tial channels.91 Moreover, social change or demographic ageing can nolonger be viewed as a ‘national’ problem or issue Hence, law, in general,and ‘equality’, in specific, are not ‘neutral’ to demographic change in theEuropean Union: they interact with each other in complex and diverseways Law and the concept of equality are not blind to social changes Theyare both an active participant as well as a passive mirror and observant.The literature has already revealed that older persons have been directlyaffected by the way international organisations have legally constructedand managed state socioeconomic policies.92 For example, the 1994

Report of the World Bank, Averting the Old Age Crisis, has been highly

influential in reducing state based pay-as-you-go old-age pension schemes

88 P Dwyer, ‘Retired EU migrants, healthcare right and European social citizenship’, (2001)

23 Journal of Social Welfare and Family Law, pp 311–27.

89L A Frolik, ‘The Developing Field of Elder Law: A Historical Perspective’, (1993) 1 ‘The

Elder Law Journal, pp 1–18; L A Frolik, ‘The Developing Field of Elder Law Redux: Ten

Years After’, Elder Law Journal, 10 (2002), pp 1–14.

90I Doron, ‘From national to international elder law’, International Journal of Ageing, Law

and Policy, 1 (2005), pp 45–72; D Rodriguez-Pinzon and C Martin, ‘The international

human rights status of elderly persons’, American University International Law Review, 18

(2003), pp 915–1007.

91Bloom and Canning Global Demographic Change.

92C L Estes, S Biggs and C Phillipson, Social Theory, Social Policy and Ageing: A Critical

Introduction (Open University Press, 2003).

demographic, social change and equality 141

to a minimal role of basic pension provision, while promoting a secondpension pillar around private, non-redistributive, defined contributionpension plans.93

Thus, it seems that in light of the demographic and social changedescribed in this chapter, the following conclusions can be drawn:

1 Any legal discussion on equality should be contextualised within aspecific social and demographic context

2 Today’s unique European Union social change, i.e the ageing lution, sets a contextual challenge to the legal conceptualisation andimplementation of ‘equality’

revo-3 The enlarged EU legal and policy discourse and jurisprudence on ity need to be supported with empirical social and demographic data

equal-in order to connect ‘equality’ to ‘reality’

4 The enlarged European Union social context is complex: on the onehand there are broad and similar ‘cross-EU’ demographic trends; on theother hand, however, there should be an awareness of local uniquenessand differences in each country and on each social issue

5 The power of ‘equality’ and ‘non-discrimination’ as active social andlegal tools within the enlarged EU will eventually rest upon their ability

to be sensitive to the diverse and complex interactions between the lawand the sociodemographic changes described above

93R Holtzman, A world perspective on pension reform, Paper prepared for the joint

ILO-OECD Workshop on the Development and Reform of Pension Schemes (ILO-OECD, December

1997) World Bank Averting the Old Age Crisis (Oxford University Press, 1994).

PART II

on the unique features of sex equality regulation in an EC law contextand its roots pre-Amsterdam After introducing these features, I will con-tinue to describe the legal developments in the field of sex equality postAmsterdam only to end up in a discussion on the future implications ofdiscrimination law developments in general for gender equality.

Among the issues addressed in this chapter is the convergence of crimination concepts between different grounds Is there a risk of ero-sion of the concepts of direct and indirect discrimination introducing awider set of justifications? What are the implications for sex equality law

dis-of the new Article 13 Directives drawing upon a wider scope dis-of acquis communautaire as regards the concept of indirect discrimination? Will

145

146 equality law in an enlarged european union

multiple non-discrimination grounds reinforce a formal equalityapproach as the common denominator or, on the contrary, draw ourattention to the obvious need for proactive measures? There is also theissue of non-discrimination rights for workers and its implications fordiscrimination law in general, working conditions being the constituent

of the groups to be protected Does the more limited coverage of the newArticle 13 Directive 2004/113/EC concerning sex equality and the access

to and supply of goods and services as compared especially to the RaceDirective 2000/43/EC imply a new hierarchy of equalities? And, there isalso the issue of enlargement and sex equality

Something should, however, first be said on sex as a protected ground

for discrimination, i.e discussing the concept as such At first sight it

is clearly symmetrical Men and women are complementary – togetherthey make up the whole world A ground such as disability on the otherhand is clearly asymmetrical This is a reason why the concept of ‘formalequality’, paradoxically,1is so strong within sex equality law Favourabletreatment of one sex is always to the detriment of the other.2Here, too,developments post Amsterdam prove to interact in a complex way withsex equality law Already before the adoption of the first Article 13 Direc-tives we encountered a broadened gender concept – the European Court

of Justice (ECJ) had confirmed transsexuality to be a matter of sex (andsexual orientation not to be).3 Moreover, differential treatment on the

grounds of pregnancy and mothering had, ever since Dekker,4been seen

as intrinsically related to the female sex and thus constituting direct crimination These developments contrast not only to the rights of mengenerally, but also of non-pregnant women as well as fathers and require

dis-a line to be drdis-awn in reldis-ation to pdis-arentdis-al rights.5Here social, cultural anddemographical developments within the different Member States are of

1 Compare what is said below about a proactive approach as a constitutional requirement regarding precisely sex equality law.

2 Compare, however, for instance Holtmaat, who draws our attention to the fact that the CEDAW Convention is asymmetrical so as to prohibit precisely the discrimination against

women, not sex in general: R Holtmaat, The possible impact of other instruments to combat

discrimination against women (the case of the CEDAW Convention), paper to the 18–19

November 2004 Hague Conference ‘Progressive Implementation: New Developments in European Union Gender Equality Law’.

3 Cases C-13/94 P v S [1996] ECR I-2143, C-249/96 Grant [1998] ECR I-621 and C-117/01

K.B [2004] ECR I-541.

4 Case C-177/88 Dekker [1990] ECR I-3941.

5 Compare the Council’s Resolution on the balanced participation of women and men in family and working life [2000] OJ C218, pp 0005–0007 See also, for instance, R Nielsen,

eu sex equality law post amsterdam 147

great concern These issues also relate to the old sameness-difference andessentialist discourses in feminist theory and to the question of multiple/intersectional discrimination – at the heart of Article 13 EC.6

Unique features of sex equality regulation

One important feature is that sex equality law was part of Community

Law from the very beginning

In the beginning there was only the principle of equal remuneration tained in Article 119 of the original Treaty of Rome (EEC Treaty) Grad-ually, as we all well know, the principle of equal treatment between menand women has gained a more general standing within Community law,

con-as described in the introductory chapter by Helen Meenan This ground implies a double aim, still inherent in EU sex equality law, onelinked to (internal) market arguments and one linked to the discourse onfundamental rights.7

back-There is a treaty based mainstreaming approach Since 1996 the

Commis-sion’s strategic approach to the question of equal opportunities betweenmen and women is ‘mainstreaming’, i.e., to incorporate it into all com-munity policies and activities,8a strategy now reflected in Article 3(2) EC.The mainstreaming approach has more recently spread to the new areas

of non-discrimination.9

Gender Equality: In European Contract Law, DJF Publishing, Copenhagen (2004) and

Case C-177/88 Elisabeth Johanna Pacifica Dekker v Stitching Vormingscetrum woor Jong

Volwassenen (VJV Centrum) Plus; Case C-179/88 Handels- og Kontorsfunktionaerernas bund Danmark v Dansk Arbejdsgiverforening, CMLR 29 (1992) pp 160–9.

For-6 In her paper to the 18–19 November 2004 Hague Conference ‘Progressive Implementation: New Developments in European Union Gender Equality Law’ Dagmar Schiek argues for the

use of the concept gender equality in the multidimensional equality strategy, see D Schiek,

Broadening the scope and the norms of EU sex discrimination law – towards multidimensional equality law (2004).

7 However, the ECJ has stated that ‘the economic aim is secondary to the social aim’; see Cases

C-270/97 Sievers [2000] ECR I-933 and C-50/96 Schr¨oder [2000] ECR I-774, para 57 of both judgments Compare also C McCrudden, Gender Equality in the European Constitution,

paper to the 18–19 November 2004 Hague Conference on ‘Progressive Implementation: New Developments in European Union Gender Equality Law’, p 5.

8 The European Commission’s Communication incorporating equal opportunities for women and men into all Community policies and activities, COM(96) 67 final.

9 See the 2000/750/EC Council Decision of 27 November 2000 establishing a Community action programme to combat discrimination [2000] OJ L303/23 See also the Commission’s Communications regarding the EQUAL Programme, COM (2000) 853 and COM(2003)

840 final, respectively.

148 equality law in an enlarged european union

The ‘constitutional support’ for sex equality is significantly more developed than it is for other non-discrimination grounds and the crucial articles have

already been referred to above.10 However, there have been importantdevelopments at the constitutional level also since Amsterdam such as,the adoption of the EU Charter of Fundamental Rights in 2000 and its laterintegration into, and the adoption of a New Constitution for the EuropeanUnion now supplanted by a proposed Reform Treaty (see further below).Here equality between women and men can be said to be reinforced evenmore The significance of these developments for the future of EU sexequality law remains, however, as uncertain as is the future of the NewConstitution itself, at the time of writing

Moreover, the Treaty rules on equality between men and women require a proactive approach After Amsterdam, Community law can be said to have

moved from formal to substantive gender equality.11The new Treaty visions proclaim equality between men and women as a ‘task’ and an ‘aim’

pro-of the Community and impose a positive obligation to ‘promote’ it in allits activities.12Articulating the need for eliminating existing inequalitiesand for promoting equality between men and women, they may in fact be

said to represent a shift in the Community law gender equality approach, from a negative ban on discrimination to a positive and proactive approach

to promote substantive gender equality.13The wording of Article 3(2) EC inparticular has been said to require a proactive approach in gender equal-ity issues on behalf of the European Union institutions.14 Furthermore,Article 141 EC (formerly Article 119) now provides the specific legal basisfor equality of treatment between men and women not only with regard

to remuneration but also in broader contexts Article 141(4) also providesscope for positive action measures These characteristics of sex equality

law reflect the fact that it is mainly argued in a (de facto) equality discourse

10 Article 2 and 3(2) as well as Art 141 EC See, for instance S Koukoulis-Spiliotopoulos,

From Formal to Substantive Gender Equality, The Proposed Amendment of Directive 76/207, Comments and suggestions (Athens, 2001).

11 See, for instance, S Koukoulis-Spiliotopoulos, ibid See also A-G Christine Stix-Hackl,

Opinion in Case C-186/01 Dory [2003] ECR I-2479, paras 102–5.

12 Articles 2 and 3(2) EC.

13 Compare the Commission using the concept ‘proactive’ intervention in relation to the mainstreaming approach and ‘reactive’ intervention when addressing specific actions in favour of women, COM(2000) 335 final.

14 ‘In all activities the Community shall aim to eliminate inequalities and to promote equality between men and women.’ However, compare R Holtmaat (2004), who claims that there still is no clear and outright positive obligation for Member States to improve the de facto position of women.

eu sex equality law post amsterdam 149

in contrast to the other Article 13 grounds that are mainly argued within a non-discrimination framework.15

The importance paid to sex discrimination in working life is alsoreflected in the legal basis for adoption of such instruments With regard

to work-related issues, sex discrimination legislation follows the qualified majority voting rules of Article 251 whereas Article 13 measures require

unanimity Article 13 is also argued in ‘softer terms’ to ‘combat’ crimination These differences may reveal precisely the double aim of sex

dis-equality law – market and fundamental rights interests – whereas Article

13 is more clearly within the area of human rights and social policy

Key concepts and approaches of EC non-discrimination regulation were developed within sex equality law, such as the concepts of direct and indi-

rect discrimination, the significant rules on the burden of proof in crimination cases, the scope for positive action, requirements of equalityplans as well as accompanying principles on direct effect, sanctions effi-ciency, etc

dis-Later action in the area of non-discrimination is – as is stated in theGreen Paper on ‘Equality and non-discrimination in an enlarged Euro-pean Union’ – built upon the EU’s considerable experience of dealingwith sex discrimination.16 However, recent developments show that italso works the other way around – Article 13 developments also influ-ence sex equality law The current definitions of central concepts such asdirect discrimination, indirect discrimination and harassment – intro-duced to sex equality law by Directive 2002/73 amending the Equal Treat-ment Directive – were articulated by the first two Article 13 Directives.The Recast Directive 2006/54/EC concerning sex equality law shouldalso be mentioned as well as the adoption of a new Article 13 Directive2004/113/EC (implementing the principle of equal treatment between

men and women in the access to and supply of goods and services) Due

to the variable geometry17 of the discrimination grounds new ‘risks’ now emerge as regards the application of fundamental concepts, for instance, with

regard to the justifications of direct discrimination (compare Article 6

on age discrimination in Directive 2000/78/EC), the ‘test’ to be met

as regards indirect discrimination (compare inter alia Article 2(b)(ii)

15Compare, for instance, McCrudden, Gender Equality, p 4 See, however, also S Prechal,

‘Equality of treatment, non-discrimination and social policy: Achievements in three

150 equality law in an enlarged european union

regarding disability in Directive 2000/78/EC), the scope for positive actionand other ‘fourth generation non-discrimination rights’.18Another aspect

to be scrutinised in this context is the exemptions provided A reason to beespecially preoccupied with these general developments is the differences

as regard the general aim of non-discrimination measures between thedifferent grounds covered by Article 13 EC – to combat discrimination

or to promote equality In my opinion, there are fundamental differenceshere between, for instance, the regulation on sexual orientation as com-pared to the one concerning sex

Post Amsterdam developments within sex equality law

In November 1997, at the Luxembourg Jobs Summit,19 the pean Employment Strategy (EES) was launched The original guidelinesrevolved around four ‘pillars’, namely, employability, entrepreneurship,adaptability and equal opportunities The last pillar included tackling thegender gap,20reconciling work and family life and facilitating the return

Euro-to work after an absence, all crucial issues for sex equality in employment.

A reform of the EES in 2003 brought the guidelines closer to the Lisbonstrategy.21 Here, gender equality is but one of ten guidelines related tothe three overarching objectives: full employment, improving quality andproductivity at work, and strengthening social cohesion and inclusion.Recent newly integrated guidelines are meant to achieve the Lisbon strat-egy in an even more efficient manner.22Of special interest here is Guideline

17, to promote a lifecycle approach to work, and Guideline 18, to ensureinclusive labour markets Equal opportunities, combating discrimination

18S Fredman, The concept of Equality: A General Framework, paper for a workshop in Brussels

6–7 November 2000 arranged by the Swedish Institute for Working Life.

19 Presidency conclusions (Lisbon 23 and 24 March 2000) available at: http://europa.eu.int/ ispo/docs/services/docs/2000/jan-march/doc 00 8 en.html.

20‘The gender gap’ concept includes not only the gender pay gap issue but also the notorious

gender gaps as regard employment as such, unemployment, the higher levels of education, family life organisation and poverty risks (including pensions).

21 Council Decision 2003/578/EC of 22 July 2003 and the 2004 Employment guidelines [2004] OJ L326/45 The Lisbon Strategy (‘to become the most competitive and dynamic knowledge-based economy in the world, capable of sustainable economic growth with more and better jobs and greater social cohesion’) involves the aim to increase the overall

EU employment rate to 70 per cent and that among women to more than 60 per cent by 2010.

22 Council Decision of 12 July 2005 on guidelines for the employment policies of the ber States [2005] OJ L205/21 Here the employment rate among women is identified as currently being 56.1 per cent (for EU 27).

Mem-eu sex equality law post amsterdam 151

and gender mainstreaming, are said to be essential for progress and cial attention should be paid to tackling the persistent employment gapsbetween women and men (as well as the low employment rates of olderworkers and young people as part of a new inter-generational approach).Enterprises are required to respond to ‘the increasing demand for job qual-ity which is related to workers’ personal preferences and family changes’.Despite this, gender equality seems to be less visible as a priority throughthese later developments of the EES

spe-In its Communication ‘Towards a Community Framework Strategy

on Gender Equality (2001–2005)’23the Commission stresses the issue ofgender equality working towards an inclusive democracy and identifiesfive interrelated fields of intervention: economic life, equal participationand representation, social rights, civil life and gender roles and stereo-

types The Communication implies a considerably broadened scope for der equality The actions under ‘equal participation and representation’

gen-address women’s under-representation in, among other areas, politics,science and the Community institutions, characterised as a ‘fundamentaldemocratic deficit’.24The aim of promoting equality in ‘civil life’ is said torelate to ‘the question of the full enjoyment of human rights and funda-mental freedoms’25and addresses among other things the issue of violenceagainst and trafficking in women In this field important policy develop-ments have taken place both before and after Amsterdam such as the STOPprogramme,26 the DAPHNE programmes (2000–2003 and 2004–2008,respectively)27 and the Council Directive 2004/81/EC on the residencepermit issued to third country nationals who are victims of trafficking

in human beings or who have been the subject of action to facilitate gal immigration, who co-operate with the competent authorities.28Theframework strategy has so far been monitored through the adoption ofannual work programmes and annual reports on gender equality.29In the

ille-2005 equality between men and women report, the following challengesfor gender equality were identified: strengthening the position of women

in the labour market, increasing care facilities for children and other

23 COM(2000) 335 final There is a supporting programme to complement the framework strategy, Council Decision of 20 December 2000 establishing a Programme relating to the Community framework strategy on gender equality (2001–2005) [2001] OJ L17/22.

24 COM(2000) 335 final, p 7 25 Ibid p 11.

26 Joint Action of 29 November 1996 adopted by the Council [1996] OJ L322.

27 http://ec.europa.eu.justice home/funding/2004 2007/Daphne/ funding daphne en.htm.

28 [2004] OJ L261/19.

29 See, for instance, the 2005 Report on equality between women and men, COM(2005) 44 final, the first to cover all twenty-five then Member States.

152 equality law in an enlarged european union

dependants, addressing men in achieving gender equality, integration ofthe gender perspective into immigration and integration policies andmonitoring developments towards gender equality There is now a Com-munity programme for employment and social solidarity, PROGRESS2007–2013, to replace among others, the Community action programme

to combat discrimination 2001–2006 and the Council’s Decision of 20December 2000 establishing a programme relating to the Communityframework strategy on gender equality 2001–2005.30Based on Articles141(3) and 13(2) EC there is still an advanced proposal on the creation

of an Institute for Gender Equality.31The objective of the Institute is to

‘assist the Community institutions, in particular the Commission, andthe authorities of the Member States in the fight against discriminationbased on sex and the promotion of gender equality and to raise the profile

of such issues among EU citizens’ (Article 2)

The fact that the Amsterdam Treaty has assigned a major role to theEuropean social dialogue, giving the social partners substantial responsi-bilities and powers, was mentioned earlier The first framework agreementresulting from these provisions in their original version later resulted inthe Parental Leave Directive 96/34/EC.32This Directive, however, predatesAmsterdam and will only be dealt with here indirectly in connection withthe amended Equal Treatment Directive 2002/73/EC (ETD) and in rela-tion to case law developments.33The two other framework agreementswhich were later adopted as Directives under the Treaty, the EuropeanCouncil Directive 97/81/EC of 15 December 1997 concerning the Frame-work Agreement on Part-time Work concluded by UNICE, CEEP and theETUC34and Council Directive 99/70/EC of 28 June 1999 concerning theFramework Agreement on Fixed-term Work concluded by ETUC, UNICEand CEEP,35however, deserve to be addressed here Despite not consti-tuting parts of EC sex equality law as such, they certainly have genderedimplications Then came the amended ETD, the new Article 13 Directiveand the Recast Directive

30 Proposal for a European Parliament and Council Decision establishing a Community Programme for Employment and social Solidarity, PROGRESS, COM(2004) 488.

31 Proposal for a Regulation of the European Parliament and of the Council establishing a European Institute for Gender Equality, COM(2005) 81 final.

32 [1996] OJ L145/4.

33 Also the Burden of Proof Directive 97/80/EC ([1998] OJ L14/6) was adopted under the Agreement on Social Policy, annexed to the Protocol (No 14) on social policy, annexed to the Treaty establishing the European Community.

34 [1998] OJ L14/9 35 [1998] OJ L14/9.