EU anti-discrimination law

570 Pages·2014·1.99 MB·English

by  Evelyn Ellis

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
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EU Anti-Discrimination Law
Second Edition
EVELYN ELLIS AND PHILIPPA WATSON
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For Olivia, Josie and Genevieve
Evelyn Ellis
For Sarah, Emily and Pierre
Philippa Watson
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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