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EU anti-discrimination law PDF

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OXFORD EU LAW LIBRARY General Editors: David Anderson, QC Barrister at Brick Court Chambers and Visiting Professor of Law at King’s College London. Piet Eeckhout, Professor of Law at University College London. EU ANTI-DISCRIMINATION LAW Second Edition OXFORD EU LAW LIBRARY The aim of this series is to publish important and original studies of the v arious branches of EC and EU law. Each work provides a clear, concise, and critical exposition of the law in its social, economic, and political context, at a level which will interest the advanced student, the practitioner, the academic, and g overnment and community offi cials. Formerly the Oxford European Community Law Library. The EU Common Security and EC Customs Law Defence Policy Second Edition Panos Koutrakos Timothy Lyons The General Principles of The European Union and its Court EU Law of Justice Third Edition Second Edition Takis Tridimas Anthony Arnull EU Employment Law The General Principles of EU Law Fourth Edition Second Edition Catherine Barnard Takis Tridimas EU External Relations Law Directives in EC Law Second Edition Second Edition Piet Eeckhout Sacha Prechal EU Justice and Home Workers, Establishment and Aff airs Law Services in the EU Third Edition Robin White Steve Peers Intellectual Property Rights in EU The EC Common Fisheries Policy Law Robin Churchill, Daniel Owen Free Movement and Competition Law David T. Keeling EC Competition Law Fifth Edition EC Agricultural Law Joanna Goyder and Albertina Second Edition Albors-Llorens John A. Usher EC Securities Regulation Second Edition Niamh Moloney EU Anti-Discrimination Law Second Edition EVELYN ELLIS AND PHILIPPA WATSON 1 3 Great Clarendon Street, Oxford, OX2 6DP, United Kingdom Oxford University Press is a department of the University of Oxford. It furthers the University’s objective of excellence in research, scholarship, and education by publishing worldwide. Oxford is a registered trade mark of Oxford University Press in the UK and in certain other countries © E Ellis and P Watson 2012 The moral rights of the author have been asserted First Edition published in 2005 Impression: 1 All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted, in any form or by any means, without the prior permission in writing of Oxford University Press, or as expressly permitted by law, by licence or under terms agreed with the appropriate reprographics rights organization. Enquiries concerning reproduction outside the scope of the above should be sent to the Rights Department, Oxford University Press, at the address above You must not circulate this work in any other form and you must impose this same condition on any acquirer Crown copyright material is reproduced under Class Licence Number C01P0000148 with the permission of OPSI and the Queen's Printer for Scotland British Library Cataloguing in Publication Data Data available ISBN 978–0–19–969846–2 Printed in Great Britain by CPI Group (UK) Ltd, Croydon, CR0 4YY Links to third party websites are provided by Oxford in good faith and for information only. Oxford disclaims any responsibility for the materials contained in any third party website referenced in this work. For Olivia, Josie and Genevieve Evelyn Ellis For Sarah, Emily and Pierre Philippa Watson This page intentionally left blank General Editor’s Foreword This second edition of EU Anti-Discrimination Law, the product of an excellent co-authorship, is a marvellous addition to the Library collection. Its focus is one of the most signifi cant and extensive areas of EU law. It is often said that, when the EEC was created, its specifi c goals and instruments were virtually all economic in nature; that the original Treaty made no reference to fundamental rights, and was very limited with respect to social policy. But the principle of equal pay for men and women was there from the start, and has proved to be the cornerstone of the great edifi ce which EU anti-discrimination policy and law now form. This is an area in which the EU is an active human rights organisation - not just one which accepts that its policies and acts are subject to human-rights discipline. It is, as the authors emphasise, also an area in which the Court of Justice has always been the protagonist. Notwithstanding general, and often vague and ambiguous provisions, both in the Treaties and in the EU legislation, the Court has managed to put together a generally convincing and coherent set of principles and rules. The authors demonstrate that very clearly. To achieve such coherence is no small achievement, in light of the profound conceptual questions which anti-discrimination law needs to grapple with. The concept of equality has of course been at the heart of Western moral and political philosophy ever since Plato and Aristotle, and its meaning and scope are intensely contested. Any system of anti-discrimination law therefore has deep and complex roots. If the Court has done a good job at achieving broad coherence, the authors have done an even better one at conceptualising the issues, analysing the Court’s rul- ings, and providing us with critical commentary. The book does not shy away from attempting to come to grips with essential concepts such as indirect and positive discrimination, and the eternal tension between formal and substantive equality. The authors’ analysis is lucid, forensic, and critical. They consistently off er excel- lent examples to illustrate general and theoretical questions. At no point does their account get lost in the detail of this vast area of law, with all its technicalities. But they do more than that. They rightly advocate a broad conception of indi- rect discrimination, as a tool to achieve substantive equality. That is not mere aca- demic luxury, in light of the realities on the ground. The actual pay gap between men and women throughout the EU is but the recurring media fl ash point for the many diffi culties which persist in achieving real, substantive equality. And EU anti- discrimination law has become a vastly more signifi cant tool since the year 2000, when its remit was extended to discrimination on grounds of race, age, sexual ori- entation, disability, and religion or belief. We are only beginning to see the eff ects viii General Editor’s Foreword of that extension, as well as the conceptual diffi culties which it creates, for example as regards the justifi cation of diff erences in treatment on grounds of age. In these and other matters, Evelyn Ellis and Philippa Watson are unerringly on the side of a broad conception of EU anti-discrimination law, but their advocacy is always persuasively reasoned. But this is of course far more than a conceptual book. It reviews and analyses the law, as it has developed, in a most accessible way. It is structured so as to connect the diff erent forms of discrimination, and so as to focus on substantive issues, such as equal pay; workplace and non-workplace discrimination; pregnancy and maternity; etc. As such it will be of immense use for legal practice, and all those working in the fi eld will fi nd it an invaluable guide. But there is also a lot in the book which is of broader interest, for all those studying EU constitution law. The chapter on general principles is particularly illuminating. We therefore recommend this book to everyone with an interest in anti- discrimination law, EU social policy, and EU constitutional law. Piet Eeckhout David Anderson Preface This edition of EU Anti-Discrimination Law is intended to refl ect the changes in EU law in the area of equality and non-discrimination over the last seven years, but particularly since the entry into operation of the Treaty of Lisbon in Decem- ber 2009. The changes have been of both a constitutional nature and also of a more detailed kind. The proposed Constitutional Treaty has been abandoned but the Charter of Fundamental Rights has now achieved formal legal status. The old Treaty on the European Union is amended in major respects, and the new Treaty on the Functioning of the European Union replaces the former Treaty on the European Community. The law on equality between the sexes has been consoli- dated in a Recast Directive, and a new Directive mandating equal treatment of the sexes in relation to the provision of goods and services has come into force. In the meantime, the Court of Justice of the EU has begun work on interpreting the often imprecise provisions of the Race and Framework Directives of 2000. In particular, it has received a large number of requests for preliminary rulings relating to discrimination on the ground of age and the possible justifi cation of such discrimi- nation. Its case law has also continued to develop in the fi eld of sex discrimination, pregnancy, and discrimination on the grounds of sexual orientation and disability. The austere economic situation in the EU and the enlarged membership of the Court resulting from the accession of new Member States provide a somewhat diff erent backdrop against which the current jurisprudence of the Court has to be assessed. These developments have made it necessary to reorganize the material contained in the former edition. In particular, a new Chapter Three has been introduced, dealing with general principles and equal treatment. This refl ects the entry into legal eff ect of the Charter on Fundamental Rights, the EU’s proposed accession to the European Convention on Human Rights, and the expanded role now being accorded by the Court to general principles of law. The substantive content of the rules forbidding discrimination are now discussed in two separate chapters: Chapter Six dealing with the workplace provisions and Chapter Eight with the non-workplace law. A new chapter is devoted exclusively to pregnancy and maternity, since the law in this area has been voluminous and is also unique. A fi nal new chapter assesses the current law. The joint authorship of this book is the result of a fortuitous exchange of emails between the writers. It has proved stimulating and challenging to be able to bounce ideas off one another. For the opinions expressed, as well as any errors, we are of course jointly responsible. Evelyn Ellis Philippa Watson September 2012

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EU Anti-Discrimination Law provides a detailed and critical analysis of the corpus of European Union law prohibiting discrimination on the grounds of sex, racial or ethnic origin, religion or belief, disability, age, and sexual orientation. It takes into account the changes brought about by the Trea
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