EU Anti-Discrimination Law Beyond Gender

393 Pages·2019·3.447 MB·English

by  Uladzislau Belavusau and Kristin Henrard (eds.)

EU ANTI-DISCRIMINATION LAW BEYOND GENDER
The EU has slowly but surely developed a solid body of equality law that prohibits
different facets of discrimination. While the Union had initially developed anti-
discrimination norms that served only the commercial rationale of the common
market, focusing on nationality (of a Member State) and gender as protected
grounds, the Treaty of Amsterdam (1997) supplied five additional prohibited
grounds of discrimination to the EU legislative palette, in line with a much broader
egalitarian rationale. In 2000, two EU Equality Directives followed, one focusing
on race and ethnic origin, the other covering the remaining four grounds intro-
duced by the Treaty of Amsterdam, namely religion, sexual orientation, disabilities
and age.
Eighteen years after the adoption of the watershed Equality Directives, it seems
timely to dedicate a book to their limits and prospects, to look at the progress made,
and to revisit the rise of EU anti-discrimination law beyond gender. This volume
sets out to capture the striking developments and shortcomings that have taken
place in the interpretation of relevant EU secondary law. Firstly, the book unfolds
an up-to-date systematic reappraisal of the five ‘newer’ grounds of discrimina-
tion, which have so far received mostly fragmented coverage. Secondly, and more
generally, the volume captures how and to what extent the Equality Directives have
enabled or, at times, prevented the Court of Justice of the European Union from
developing even broader and more refined anti-discrimination jurisprudence.
Thus, the book offers a glimpse into the past, present and – it is hoped – future
of EU anti-discrimination law as, despite all the flaws in the Union’s ‘Garden of
Earthly Delights’, it offers one of the highest standards of protection in comparative
anti-discrimination law.
ii
EU Anti-Discrimination Law
Beyond Gender
Edited by
Uladzislau Belavusau
and
Kristin Henrard
HART PUBLISHING
Bloomsbury Publishing Plc
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Library of Congress Cataloging-in-Publication data
Names: Belavusau, Uladzislau, editor. | Henrard, Kristin, editor.
Title: EU anti-discrimination law beyond gender / edited by Uladzislau Belavusau and Kristin Henrard.
Other titles: European Union anti-discrimination law beyond gender
Description: Oxford, UK ; Portland, Oregon : Hart Publishing, 2019.
Identifiers: LCCN 2018026328 (print) | LCCN 2018027308 (ebook) |
ISBN 9781509915026 (Epub) | ISBN 9781509915019 (hardback : alk. paper)
Subjects: LCSH: Discrimination—Law and legislation—European Union countries. | Equality
before the law—European Union countries. | Sex discrimination against women—Law and
legislation—European Union countries. | Race discrimination—Law and legislation—European Union
countries. | Treaty on European Union (1992 February 7). Protocols, etc. (1997 October 2)
Classification: LCC KJE5142 (ebook) | LCC KJE5142 .E73 2018 (print) | DDC 342.408/5—dc23
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FOREWORD
Originally, EU anti-discrimination law did not occupy centre stage in the process
of European integration, being seen merely as a means of facilitating the establish-
ment of the EU internal market. The prohibition against discrimination based on
nationality sought to protect free movement rights by guaranteeing equal access
to the market of the host Member State. For its part, the principle of equal pay for
equal work was seen as a way of prohibiting regulatory measures that, in seeking to
make undertakings more competitive, had the undesirable – and indeed counter-
productive – effect of discriminating against women who joined the workforce.
However, EU anti-discrimination law has progressively grown beyond its
internal market origins. That law is no longer a means to an end but an end in itself
which implements the value of equality on which the EU is founded. As the editors
to this volume posit, one may distinguish three key moments in the evolution of
EU anti-discrimination law that contributed to its emergence as a fully-fledged
independent discipline.
First, in the 1970s, the case law of the Court of Justice of the European Union
(CJEU) played a key role in giving real substance to the principle of gender equal-
ity, notably by holding that ex Article 119 EEC (now Article 157 TFEU) could
produce horizontal direct effect. That case law was accompanied by the adop-
tion of a series of directives that sought actively to foster gender equality. Second,
the entry into force of the Treaty of Amsterdam changed the narrative of EU
anti-discrimination law. It introduced a new legal basis (i.e. ex Article 13 EC
(now Article 19 TFEU), that enables the EU legislator to fight discrimination based
on five new grounds, namely racial or ethnic origin, religion or belief, disability, age
and sexual orientation). That new legal basis constituted a quantum leap forward
for EU anti-discrimination law as it provided the EU with the constitutional
authority to combat discrimination above and beyond the internal market. In that
regard, two landmark Directives were adopted in 2000, namely the Framework
Equality Directive and the Race Equality Directive (the ‘2000 Equality Directives’),
that have ever since shaped how anti-discrimination law going beyond gender is to
be understood at EU level. Last, but not least, with the entry into force of the Treaty
of Lisbon, it was made clear that, as a fundamental right recognised by the Charter
of Fundamental Rights of the European Union, the principle of equality pervades
the entire corpus of EU law and stands at the apex of the hierarchy of EU norms.
Today, 18 years after the adoption of the 2000 Equality Directives, it appears
that the time is right to examine the way in which EU anti-discrimination law
beyond gender has developed into a mature and complex body of EU law. Edited
vi Foreword
by Dr Belavusau and Dr Henrard, this volume succeeds in undertaking that exam-
ination, thereby making a hugely valuable contribution to the existing literature on
EU anti-discrimination law. By bringing together the expertise of its contributors,
it does not come as a surprise that the book is an outstanding piece of scholarly
work, providing incisive and thought-provoking insights to the way in which the
principle of equality applies to race and ethnicity, religion, sexual orientation, age
and disability.
Divided into six parts, this book provides a holistic study of EU anti-
discrimination law beyond gender. This is, first, because it puts forward a series
of chapters that examine the most salient theoretical and procedural aspects of
EU anti-discrimination law. Second, for every new ground of discrimination that
is given concrete expression in the 2000 Equality Directives, the book contains
two specific chapters that examine the underlying rationale of the ground in ques-
tion, whilst providing the reader with an overview of the major developments in
the case law of the CJEU. Most importantly, throughout the book, the contribu-
tors do not limit themselves to describing the current legislation and case law, but
also provide thorough explanations as to the reasons why they believe that the EU
legislator and the CJEU, respectively, reached a given outcome and, where appro-
priate, suggestions as to how the law might be developed in the future.
Written in a clear and entertaining style, this book succeeds in encapsulating
both the past and present of EU anti-discrimination law, whilst providing a solid
analytical basis for future debates about that field of law. It is a thoughtful and
rigorous work that addresses a challenging set of questions that are of interest to
scholars and students. Overall, it is an excellent contribution to the legal literature
on European Union law and I warmly congratulate both the editors and contribu-
tors for it.
Prof. Dr. Koen Lenaerts
President of the Court of Justice of the European Union
ACKNOWLEDGEMENTS
Many people and several institutions have supported us on this journey of
reviewing the eighteen years of EU Equality Directives. We are grateful to the
Amsterdam Centre for Contemporary European Studies (ACCESS-Europe) and,
in particular, to Gareth Davies, Gijs van der Starre and Jonathan Zeitlin for
sponsoring our conference that gathered most of the authors of this volume for a
critical discussion about their draft chapters in the beautiful Dutch capital. Dion
Kramer provided splendid assistance during this event. We are also very thank-
ful to David Oppenheimer for initiating and running the Berkeley Comparative
Equality & Anti-Discrimination Study Group. The events and publications within
this group have been of great comparative inspiration for our book. In this volume,
we explore EU anti-discrimination law as a part of a broader phenomenon, mark-
ing the rise of equality law in various jurisdictions, and foremost emphasising the
indispensable mutual influence between US and European thinking.
We are much obliged to a number of prominent colleagues who have gener-
ously shared their advice including, though not limited to, Mark Bell (Dublin),
Bruno De Witte (Florence), Laurence W Gormley (Groningen), Eric Heinze
(London), Rikki Holtmaat (Leiden), Magldalena Jozwiak (Amsterdam), Dimitry
Kochenov (Groningen), Elise Muir (Leuven), Christophe Paulussen (The Hague),
Daša Słabčanka (Amsterdam), Christa Tobler (Leiden), Ioanna Tourkochoriti
(Galway), Snježana Vasiljević (Zagreb), and Lisa Waddington (Maastricht). We are
particularly honoured and thankful to Prof Koen Lenaerts, President of the Court
of Justice for his Foreword to our volume.
The volume would not be possible without the invaluable assistance of Aylin
Gayibli. An extremely talented recent graduate from Leiden University and an
intern at the T.M.C. Asser Institute in The Hague, Aylin has been our right hand
during this long, but intellectually rewarding, work on the volume. In addition,
Uladzislau Belavusau would like to express his wholehearted gratitude to Janne
Nijman, academic director of the Asser Institute who has facilitated a welcoming
working environment for him, which has been crucial for the finalisation of this
project. He would like to extend his gratitude to Daniele Gallo for inviting and
hosting him as a Visiting Professor at the LUISS Guido Carli University (Rome)
in 2017, as well as to Rosann Greenspan and Jonathan Simon for arranging his
2018 stay as a Visiting Scholar at the Center for the Study of Law & Society –
University of California, Berkeley, where the finishing touches on this book were
completed. Likewise, Kristin Henrard would like to thank Sanne Taekema for the
generous financial support she, as head of the Rule of Law Research Programme
viii Acknowledgements
at Erasmus School of Law, granted for language editing the book proposal and for
the copyrights of one author in the volume. Kristin Henrard is also very grateful to
Professor Jan Wouters for hosting her as visiting scholar at the Leuven Centre for
Global Governance Studies during her sabbatical in the Fall–Winter of 2017, when
(somewhat unexpectedly) substantial editing work was still ongoing.
Finally, we wish to thank everyone at Hart – Bloomsbury and, in particular,
Emily Braggins and Savannah Rado for their friendly and patient editorship. Last,
but not least, deepest gratitude goes to our authors for perservering in spite of the
lengthy editing process. We are indebted for your endurance, advice and loyalty!
Kristin and Ulad
Rotterdam and Berkeley, May 2018
CONTENTS
Foreword by Koen Lenaerts, President of the Court of Justice
of the European Union ����������������������������������������������������������������������������������������������v
Acknowledgements �����������������������������������������������������������������������������������������������������vii
List of Contributors ����������������������������������������������������������������������������������������������������xi
List of Abbreviations �������������������������������������������������������������������������������������������������xiii
1. The Impact of the 2000 Equality Directives on EU Anti-Discrimination Law:
Achievements and Pitfalls ��������������������������������������������������������������������������������������1
Uladzislau Belavusau and Kristin Henrard
PART I
THEORETICAL AND PROCEDURAL ASPECTS
2. Multiple Discrimination in EU Anti-Discrimination Law: Towards
Redressing Complex Inequality? ��������������������������������������������������������������������������41
Raphaële Xenidis
3. EU Equality Law and Precarious Work ��������������������������������������������������������������75
Mark Bell
4. The Effective Protection against Discrimination and the Burden
of Proof: Evaluating the CJEU’s Guidance Through the Lens of Race �����������������95
Kristin Henrard
5. When Equality Directives Are Not Enough: Taking an Issue
with the Missing Minority Rights Policy in the EU �������������������������������������������119
Dimitry Kochenov
PART II
RACE AND ETHNICITY
6. Eighteen Years of Race Equality Directive: A Mitigated Balance ���������������������141
Mathias Möschel
7. Romani Marginalisation after the Race Equality Directive �����������������������������161
Morag Goodwin