This page intentionally left blank EQUALITY LAW IN AN ENLARGED EUROPEAN UNION European Union equality and anti-discrimination law was revolutionised by the incorporation of Article 13 into the EC Treaty, adding new anti- discrimination grounds and new possibilities. This comprehensive vol- ume provides a fresh approach to Article 13 and its directives; it adopts acontextual framework to equality and anti-discrimination law in the European Union. Part I deals with the evolution of Article 13, demo- graphic and social change and the interrelationship between European equality law and human rights. Part II contains expert essays on each of the Article 13 anti-discrimination grounds: sex, racial or ethnic origin, religion or belief,disability, age and sexual orientation, with common themes weaving throughout. This book will be of interest to everyone con- cerned with combating discrimination, academics, NGOs, lawyers, human resource professionals, employers, employees, research students and many others in the European Union and beyond. HELEN MEENAN holds the Jean Monnet Chair at Kingston University. Her research interests include age discrimination, human rights, elder law, European company law and European social policy. EQUALITY LAW IN AN ENLARGED EUROPEAN UNION Understanding the Article 13 Directives Editor HELEN MEENAN CAMBRIDGE UNIVERSITY PRESS Cambridge, New York, Melbourne, Madrid, Cape Town, Singapore, São Paulo Cambridge University Press The Edinburgh Building, Cambridge CB2 8RU, UK First published in print format ISBN-13 978-0-521-86530-2 ISBN-13 978-0-511-36631-4 © Cambridge University Press 2007 2007 Information on this title: www.cambridge.org/9780521865302 This publication is in copyright. Subject to statutory exception and to the provision of relevant collective licensing agreements, no reproduction of any part may take place without the written p ermission of Cambrid g e University Press. ISBN-10 0-511-36631-0 ISBN-10 0-521-86530-1 Cambridge University Press has no responsibility for the persistence or accuracy of urls for external or third-party internet websites referred to in this publication, and does not g uarantee that any content on such websites is, or will remain, accurate or a pp ro p riate. Published in the United States of America by Cambridge University Press, New York www.cambridge.org hardback eBook (EBL) eBook (EBL) hardback CONTENTS Preface page vii Acknowledgements x List of contributors xii Abbreviations xv Ta b l e o f Cases xviii part i 1Introduction 3 helen meenan 2Article13 EC, evolution and current contexts 38 robin allen qc 3Human rights and European equality law 73 christopher m ccrudden and haris kountouros 4Demographic, social change and equality 117 israel doron part ii 5EUsex equality law post-Amsterdam 145 ann numhauser-henning 6EUanti-racism policy; the leader of the pack? 178 mark bell 7Religion or belief; aiming at the right target? 202 gwyneth pitt v vi contents 8Disability discrimination law in the European Union 231 gerard quinn 9Age discrimination – Of Cinderella and The Golden Bough 278 helen meenan 10 The ‘mainstreaming’ of sexual orientation into European equality law 313 barry fitzpatrick 11 Conclusion 342 helen meenan Index 358 viii preface should receiveequalpay for equalwork andtheprinciple of freemovement of workers within the Community, without discrimination on grounds of nationality. These founding principles have developed in rich and var- ied ways. More recent EU anti-discrimination grounds breathe with their memory and their development through the case law of the European Court of Justice and secondary legislation. The concrete emergence of a broader equality culture can be seen, above all, in the Treaty of Amsterdam’s amendment of the EC Treaty in 1999, with the inclusion of Article 13. The proclamation of the EU Charter of Fundamental Rights in 2000,andthe recent cautiousexpansion of European non-discrimination law into the provision of goods and services, support the idea of a new equality era. Following the most recent enlargements, the European equality matrix must now rise to meet two challenges: (1) cater for the rich diversity brought about by the addition and integration of new EU Member States; and (2) ensure the workability of the Article 13 Directives, which represent a major positive change for the individual even in most, older Member States. Yet these new grounds are predictable and possibly conservative. Their addition may be seen in retrospect as an important point on the journey but far from the end of the road. We now live in a newly enlarged European Union, increasingly ‘united in diversity’ so European equality law requires a different and deeper academic scrutiny at this point in time. The authors have chosen the self- selecting subject of Article 13 EC and its grounds of sex, racial or ethnic origin, religion or belief, disability, age and sexual orientation which may be protected from discrimination thereunder, as a discreet and logical focus for this book. However, they have adopted a unique contextual and thematic approach to their work. They deal with all of the Article 13 grounds in a single academic book, as they have much in common by virtue of their cohabitation in this important provision and the family of resulting Directives. Surprisingly, this approach is rarely taken outside the realm of the textbook. The authors also examine these grounds against a contextual background with Article 13 providing the first and mostimme- diate context for them all. The contextual and thematic approaches aim to achieve distinctive insights and perspectives on these non-discrimination grounds. They also seek to make a striking contribution to the present body of mainly journal literature on Article 13. The authors are faced in the first place with the uniqueness of each Article 13 ground as a human characteristic. In the second place, these grounds share many common and similar provisions within the Article 13 legislation. However, very preface ix distinct legal exceptions and provisions exist within this legislation for some of their number namely, disability, race, sex, age and religion or belief. Intersections between these grounds and issues of multiple iden- tity and multiple discrimination only serve to make their scrutiny more interesting and more complex. Thus the authors have constructed this book around three important endeavours: (1) to locate and examine each Article 13 ground within its Directive and as a component of an integrated approach to combating dis- crimination and promoting equality, so that differences among them and any exceptions and special provisions for them may be better understood; (2) to set this understanding against three carefully chosen and salient contexts, the history and evolution of Article 13 EC, European Human Rights and demographic and social change; and (3) to address certain common issues, questions and themes including, human rights, access to justice and the effects of enlargement on each ground, which help to bind the chapters together. This solidly constructed approach aims to achieve a certain level of coherence among the diverse authorship and grounds, yet its outcomes will doubtless also illuminate areas where grounds can only be converged so far. The emergent conclusions both convergent and diver- gent will be one of the main strengths of this book, which will reveal fresh insights and make a meaningful and timely contribution to the existing body of literature in this field. The structure of this book is designed to support a strong and judi- ciously constructed contextual approach. Part I contains the context- setting chapters and Part II contains a chapter on each of the grounds in Article 13 EC. Thisbookalso brings together adenovo international group of authors with a rich command of their subject. Many of the authors are members of the European Network of Experts on non-discrimination and the European Networks of Experts on disability and equality between men and women, among many other high profile committees. The starting point for this volume was a private workshop, which enabled the authors to set about writing with a shared vision. The result- ing approach nonetheless aims to preserve the freshness and passion of the authors, to connect the authors and their chapters in all their diver- sity and generate stimulating thoughts and conclusions. Whether we have fulfilled our mission in this rewarding enterprise I will leave to you, the reader, todecide. Helen Meenan July 2007 [...]... abbreviations European Human Rights Law Review European Human Rights Reports European Initiative for Democracy and Human Rights European Law Review European Network Against Racism Equal Opportunities Commission European Social Charter Equal Treatment Directive European Treaty Series European Trades Union Congress European Trade Union Institute European Union European Union Charter of Fundamental Rights European. .. Shaw, ‘Mainstreaming Equality and Diversity in European Union Law and Policy’, (2005) 58 Current Legal Problems, pp 255– 312 In his Opinion in Case 14 9/77 Defrenne v Sabena [19 78] ECR 13 64 Sandra Fredman, ‘Double trouble: multiple discrimination and EU law , in European Network of Legal Experts in the Non-Discrimination Field, European Anti-Discrimination Law Review, Issue No 2, October 2005 (European Commission,... spans among others, equality and non-discrimination law, international, European and comparative human rights, public procurement and international law Helen Meenan has held the Jean Monnet Chair in European Law at Kingston University since 19 98 She read law at University College Dublin (BCL), European Business Law at the University of Amsterdam (LLM) and started her working life as a solicitor of the... margins: Intersectionality, identity politics and violence against women of color’, (19 91) 43 Stanford Labor Review, Vol 6, pp 12 41 99 For example, Case 15 2/84 Marshall v Southampton Area Health Authority [19 86] ECR 723 6 equality law in an enlarged european union The goals of this volume This volume adopts three considered approaches to European equality and anti-discrimination law Firstly, and of... Pensionsversicherungsantalt der Angestellten, C-303/02 [2004] ECR I- 219 5 Handels-og Kontorfunktionærernes Forbund i Danmark v Dansk Arbejdsgiverforening (Hertz) C -17 9/88 [19 90] ECR I-3979 Hazar, Hazar and A¸ik v Turkey App No 16 311 ,16 312 ,16 313 /90, 72 D & c R 200 (19 91) Hill and Stapleton v Revenue Commissioners C-243/95 [19 98] ECR I-3739 Hlozek v Roche Austria Gesellschaft mbH C -19 /02 [2004] ECR 11 4 91 Hoekstra... inequalities in European equality law , European Law Review, 28 (2003) pp 349–69 and Barry Fitzpatrick in this volume European Commission, Equality and non-discrimination Annual Report, 2005 (European Communities, Luxembourg, 2005) at pp 22–4 On 6 May 2006, the European Commission issued a call for tender (Invitation to tender VT/2006/ 01) for a study to promote understanding of the causes and effects... project mapping non-employment equality law across the EU He is now an employment and equality law consultant (www.barryfitzpatrickconsulting.co.uk) Dr Haris Kountouros has specialised in European Labour Law From 19 99 to 2004 he was a Visiting Lecturer in European Law at King’s College London He has also taught Legal Theory at London Metropolitan University and has given a number of lectures on European Employment... C-404/92 P [19 94] ECR I-4737 X v Germany App No 87 41/ 79, 24 D & R 13 7 (19 81) X v Italy App No 67 41/ 74, 5 D & R 83 (19 76) X v UK App No 72 91/ 75, 11 D & R 55 (19 77) Z v Parliament C-270/99 P [20 01] ECR I- 919 7 Zarcynska v Levy [19 78] IRLR 532 (EAT) Zhu and Chen v Secretary of State for the Home Department C-200/02 ECR I-9923 Zucker v Astrid Jewels [19 78] ICR 10 88 PART I 1 Introduction helen meenan ∗ Part I... Anti-semitic incidents also persist within in the EU see inter alia, EUMC Working Paper, ‘Antsemitism Summary overview of the situation in the European Union 20 01 2005’, May 2006 10 equality law in an enlarged european union legal questions will arise Gwyneth Pitt discusses the collision between freedom of expression and freedom of religion and Mark Bell discusses the challenges of balancing freedom... grounds and any subgroups they may contain and for devising strategies to tackle their anti-discrimination and equality needs It may also be time to take a more expanded approach to anti-discrimination which arguably Article 21 European Charter of Fundamental Rights (EUCFR) might help to achieve with its non-exhaustive formulation 9 10 11 12 13 For example, M Bell and L Waddington, ‘Reflecting on inequalities . This page intentionally left blank EQUALITY LAW IN AN ENLARGED EUROPEAN UNION European Union equality and anti-discrimination law was revolutionised by the incorporation of Article 13 into the. equality and anti-discrimination law in the European Union. Part I deals with the evolution of Article 13 , demo- graphic and social change and the interrelationship between European equality law and. human rights, elder law, European company law and European social policy. EQUALITY LAW IN AN ENLARGED EUROPEAN UNION Understanding the Article 13 Directives Editor HELEN MEENAN CAMBRIDGE UNIVERSITY