EQUALITY LAW IN AN ENLARGED EUROPEAN UNION Part 5 docx

demographic, social change and equality 133 associated with the trend towards earlier retirement, influenced by increasing national per capita income. Longer education, shorter work- ing lives and longer retirement periods are all consequences of increased wealth. Once again, these trends are not only age related but also gender related. Forexample, unlike men, female participation rates in the labour force have been increasing, even among older women. Participation rates of older women are especially high in Nordic countries. In Sweden, they have increased continuously since the 1950s and Sweden now has the highest participation rates of older women (around 80 per cent for the group 55–59 and over 50 per cent for the group 60–64). This has partially offset the decline in male labour force participation rates. 64 Costs ofhealthand long term care As described by Casey et al., 65 health care costs have risen rapidly as a share of GDP in many countries. Many, if not most, European countries have introduced 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 the fact 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 Ta b l e 1, for most European countries, the projections indicate an average increase in health and long- term care spending of around 3–3.5 percentage points of GDP over the 2000–2050 period. Once again, there are wide cross-country differences, ranging from almost 5 per cent in the Netherlands to under 2 per cent in the UK. 66 Because of the wide range of factors at play, the importance of this increase is particularly difficult to judge. Against this background, the crucial issues for long-term care policies concern the appropriate level of supply of long-term care for the elderly, the most cost-effective pattern of care 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. 65 B. 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, Wor king Paper No. 23 (OECD, 2003), p. 9. 66 Ibid., p. 35. 67 Ibid., p. 27. Ta ble 1 . Projections of age-related spending, 2000–2050. 1 Levels in per cent of GDP, changes in percentage points To t a l a g e-related spending Old-age pensions ‘Early retirement’ programmes Healthcare and long-term care Child/family benefits and education level 2000 change 2000–50 level 2000 change 2000–50 level 2000 change 2000–50 level 2000 change 2000–50 2 level 2000 change 2000–50 (1) (2) (3) (4) (5) (6) (7) (8) (9) (10) Australia 16.7 5.6 3.0 1.6 0.9 0.2 6.8 6.2 6.1 −2.3 Austria 2 [10.4] [2.3] 9.5 2.2 . . . . [5.1] [3.1] . . . . Belgium 22.1 5.2 8.8 3.3 1.1 0.1 6.2 3.0 6.0 −1.3 Canada 17.9 8.7 5.1 5.8 . . . . 6.3 4.2 6.4 −1.3 Czech Republic 23.1 6.9 7.8 6.8 1.8 −0.7 7.5 2.0 6.0 −1.2 Denmark 3 29.3 5.7 6.1 2.7 4.0 0.2 6.6 2.7 6.3 0.0 Finland 19.4 8.5 8.1 4.8 3.1 −0.1 8.1 3.8 . . . . France 4 [18.0] [6.4] 12.1 3.9 . . . . [6.9] [2.5] . . . . Germany [17.5] [8.1] 11.8 5.0 . . . . [5.7] [3.1] . . . . Hungary 5 7.1 1.6 6.0 1.2 1.20.3 Italy [19.7] [1.9] 14.2 −0.3 . . . . [5.5] [2.1] . . . . Japan 13.7 3.0 7.9 0.6 . . . . 5.8 2.4 . . . . Korea 3.1 8.5 2.1 8.0 0.3 0.0 0.7 0.5 . . . . Netherlands 6 19.1 9.9 5.2 4.8 1.2 0.4 7.2 4.8 5.4 0.0 New Zealand 18.7 8.4 4.8 5.7 . . . . 6.7 4.0 7.2 −1.3 Norway 17.9 13.4 4.9 8.0 2.4 1.6 5.2 3.2 5.5 0.5 Poland 6 12.2 −2.6 10.8 −2.5 1.4 −0.1 . . Spain [15.6] [10.5] 9.4 8.0 . . . . [6.2] [2.5] . . . . Sweden 29.0 3.2 9.2 1.6 1.9 −0.4 8.1 3.2 9.8 −1.2 United Kingdom 15.6 0.2 4.3 −0.7 . . . . 5.6 1.7 5.7 −0.9 United States 11.2 5.5 4.4 1.8 0.2 0.3 2.6 4.4 3.9 −1.0 Average ofcountries above 7 21.2 5.8 7.4 3.4 1.6 0.2 5.9 3.1 6.2 −0.9 Portugal 8 15.6 4.3 8.0 4.5 2.5 −0.4 1. Data for healthcare shown in parenthesis are drawn from EPC (2001). They are the result of an EC exercise using a common methodology for all countries. The projections are based on the same macroeconomic assumptions as in OECD (2001) Table 3.1. These health and long-term care projections assume that costs per capita rise in line with productivity wages. They do not allow for technological change or other non-age-related factors. 2. Total pension spending for Austria includes other age-related spending which does not fall within the definitions in Cols. 3–10. This represents 0.9 per cent of GDP in 2000 and rises by 0.1 percentage point in the period to 2050. 3. Total for Denmark includes other age-related spending not classifiable under the other headings. This represents 6.3 per cent of GDP in 2000 and increases by 0.2 percentage points from 2000 to 2050. 4. For France, the latest available year is 2040. 5. Total includes old-age pension spending and ‘early retirement’ programmes only. 6. ‘Early retirement’ programmes only include spending on persons 55+. 7. Sum of column averages. OECD average excludes countries where information is not available and Portugal where the data are less comparable than for other countries. 8. Portugal provided an estimate for total age-related spending but did not provide expenditure for all of the spending components. Source: OECD, Table 2 fn, B. Casey, H. Oxley, E. Whitehouse et al., Policies for an Ageing Society: Recent Measures and Areas for Further Reform,Economic Department Working Papers No. 369, ECO / WKP (2003) 23 c  OECD 2003, and EPC (2001). 136equality law in an enlarged european union Family and social consequences regarding care The ageing of European society has 68 also influenced family ties and responsibilities. As Kinsella and Phillips describe, 69 while some social analysts suggest that vertical family bonds – tying together different gen- erations – have weakened over recent decades, this suggestion has been refuted by research findings in many countries. Indeed, greater longevity actually 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 countries about the so-called ‘decline of the family’. Some sociologists argue the family has been stripped down to its bare essentials: just two generations and two functions (childbearing and financial and emotional support for nuclear family members). Other analysts argue that, while families have changed over the last century, population ageing has actually extended families across generations and expanded their support functions over longer periods. 71 Finally, it should also be mentioned that in various European countries elder-care has adopted an ‘international face’, as it has become a field of work for foreign workers. The needs of these workers and the needs of the elderly in European countries have given rise to a global trend in this field, where a significant part of elder-care is actually foreign, replacing the traditional family-based elder-care. These changes have a profound effect 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 may lead to political conflicts when larger and healthier groups of elderly 68 Ibid., p. 35. 69 Kinsella and Phillips (2005), p. 27. 70 V. L. Bengtson et al., ‘Families and Intergenerational Relationships in Aging Societies’, (2000) 2 Hallym International Journal of Aging 1, pp. 3–10. 71 Foranoverview of the sociological approaches towards the ageing family see A. Lowen- stein, R. Katz, D. Prilutzkey and D. Mehlhausen-Hasson, ‘The intergenerational solidarity 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. 72 B. 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, governments and bureaucracies), resist the progression and career advancement of younger people. 73 From the opposite direction, the argument will be that the elderly obtain an unfair share of resources compared tothegenerations which 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 or opens the possibility of the breakdown of the so-called intergenerational contract. 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.’ 76 As Phillipson 77 says, ‘we should not “offload” the responsibilities for an ageing population to particular generations 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 immigrants whose cultural and linguistic links with the host EU country are weaker. These new populations have serious difficulties in integrating into the labour market and into society as a whole. Even though there is still a strong element of self-selection in migration, the percentage of immi- grants whose mother tongue is the same as the official language of the host country is small in most EU countries. When these foreigners age, as they do in the enlarged European Union these days, a whole new social issue arises. Those young people from vari- ous countries who migrated to developed states in the 1950s and 1960s are today old people in these countries (e.g. Japanese women who migrated with their husbands to Britain in the post-1973 period). Because of the ageing of former immigrants in the host countries, the elderly popu- lation is changing and becoming much more culturally heterogeneous. Asaresult, European countries have to cope with problems previously 73 See 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). 74 J. 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. 138equality law in an enlarged european union unknown, particularly in relation to multiculturalism, multiethnicism and the need to establish special cultural-sensitive social services for the aged. 78 What have law and equality got to do with it? In ‘Towards a Europe for All Ages’, 79 the Commission of European Com- munities asserted that ‘demographic ageing will force European society to adapt and European people to change their behaviour. The extent to which these societal and behavioural changes can be brought about in a positive way will depend largely on the choice of policies put forward at European, national and local level.’ Law is a central tool of policy. It is through law that the state main- tains cohesion between its departments and agencies and ‘pursues con- crete objectives of political, ethical, utilitarian or some other kind’. 80 It is impossible to understand the social situation of older people without an understanding and consciousness of their constitutional and legal situa- tion. There is an unbreakable, dynamic link between law and the society within which it exists and which it serves. 81 Therefore, the study, knowledge and investigation of the law can teach us much about the sociological, historical and cultural background of the society it serves. It reflects power relationships between various social groups, the rise and fall of particular groups as a result of social and political processes, and the interests of each group. In the words of Justice Oliver 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 Roscoe Pound 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. 79 Commission of European Communities, Towards a Europe for All Ages: – Promoting Pros- perity and Intergenerational Solidarity (Brussels, 1999), p. 8. 80 M. Weber, Economy and Society (University of California Press, 1978), pp. 644–5. 81 V. Va g o , Law and Society (4th edn., Prentice-Hall, 1994). 82 O. W. Holmes, ‘The Speeches of Oliver Wendell Holmes’,in R. Posner, TheEssential Holmes: Selections From the Letters, Speeches, Judicial Opinions, and OtherWritings of OliverWendell 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 or relate 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: asystemofsocialchoice,oneinwhichgovernment provides for the allo- cation of resources, the legitimate use of violence, and the structuring of social relationships. 83 It is clear that the social change described in the previous parts raises many legal questions: Is the right to an old-age pension valid when the pensioner ceases to be a resident of the mother country and migrates to a foreign land? How is the right to health put into practice, and to what extent does health insuranceinthecountry of emigration coverthecost of healthinthe host country? 84 Is the migrating pensioner entitled to vote in the country of which he is a citizen when he is living abroad? 85 What is the citizenship status of various groups of retired migrants throughout the European Union with regard to various social entitlements? 86 To w hat extent do current European social security laws include or exclude migrants? 87 The answers law gives to these questions and its interaction with real life directly affects social realities. This has been proven again and again. For example, research in the field of retired European migrants demonstrates 83 D. 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; Sup- plementary Agreement for theApplication 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. 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. 140equality law in an enlarged european union how the legal construction of ‘residency’ status affects social decisions regarding migration. Moreover, many returning retirees decide to return to reside permanently in their country of origin if they believe such a move will secure for them some advantage in public healthcare provision. 88 Indeed, law has responded to demographic change. The ageing revo- lution has developed new spheres of knowledge, such as ‘elder law’. On the national level, since the 1980s, the field of elder law has gained grow- ing recognition. 89 On the international level, in recent years, there are growing calls for the establishment of specific public-international tools to handle the needs of older people around the globe. 90 The essence of these developments is to try and connect law to the changing realities and demographics. Conclusion Demographic realities are substantially determined by economic and social 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 no longer be viewed as a ‘national’ problem or issue. Hence, law, ingeneral, and ‘equality’, in specific, are not ‘neutral’ to demographic change in the European Union: they interact with each other in complex and diverse ways. Law and the concept of equality are not blind to social changes. They are both an active participant as well as a passive mirror and observant. The literature has already revealed that older persons have been directly affected by the way international organisations have legally constructed and 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 statebasedpay-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. 89 L. 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. 90 I. 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. 91 Bloom and Canning Global Demographic Change. 92 C. 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 second pension pillar around private, non-redistributive, defined contribution pension plans. 93 Thus, it seems that in light of the demographic and social change described in this chapter, the following conclusions can be drawn: 1. Anylegal discussion on equality should be contextualised within a specific social and demographic context. 2. Today’s unique European Union social change, i.e. the ageing revo- lution, sets a contextual challenge to the legal conceptualisation and implementation of ‘equality’. 3. Theenlarged EU legal andpolicydiscourseandjurisprudenceon equal- ity need to be supported with empirical social and demographic data in order to connect ‘equality’ to ‘reality’. 4. The enlarged European Union social context is complex: on the one hand thereare broad and similar ‘cross-EU’demographic trends; onthe other hand, however, there should be an awareness of local uniqueness and differences in each country and on each social issue. 5. The power of ‘equality’ and ‘non-discrimination’ as active social and legal tools within the enlarged EU will eventually rest upon their ability to be sensitive to the diverse and complex interactions between the law and the sociodemographic changes described above. 93 R. Holtzman, Aworld perspective onpensionreform,Paperprepared for the joint ILO- OECD Workshop on the Development andReform of Pension Schemes (OECD,December 1997) World Bank Averting the Old Age Crisis (Oxford University Press, 1994). [...]... aim and the means of achieving that aim are appropriate and necessary’ (Article 4 (5) ) Whether 61 62 63 COM(2000) 379 final The European Parliament had examined the possibility of using Article 95 as a legal base for the Directive, see PE 337. 25 final A5–0 155 /2004 (at 35) The preamble, recitals 8 and 9 162 equality law in an enlarged european union the Directive should apply also to insurance has been an. .. Commission’s Green Paper Equality and non-discrimination in an enlarged European Union , COM(2004) 379 final, p 2 See further above on the concept of sex as a protected ground  150 equality law in an enlarged european union regarding disability in Directive 2000/78/EC), the scope for positive action and other ‘fourth generation non-discrimination rights’.18 Another aspect to be scrutinised in this context is... Published in R Blanpain (ed.), Labour Law & Social Security and the European Integration, Bulletin of Comparative Labour Relations (Kluwer Law International, 2003) Case C-203/03 The Commission v Austria [20 05] ECR I-9 35 166 equality law in an enlarged european union women in work in a high-pressure atmosphere and in diving work, had failed to fulfil its obligations under Articles 2 and 3 of the ETD The... sex equality law was part of Community Law from the very beginning In the beginning there was only the principle of equal remuneration contained in Article 119 of the original Treaty of Rome (EEC Treaty) Gradually, as we all well know, the principle of equal treatment between men and women has gained a more general standing within Community law, as described in the introductory chapter by Helen Meenan... and indirect discrimination introducing a wider set of justifications? What are the implications for sex equality law of the new Article 13 Directives drawing upon a wider scope of acquis communautaire as regards the concept of indirect discrimination? Will 1 45 146 equality law in an enlarged european union multiple non-discrimination grounds reinforce a formal equality approach as the common denominator... and indirect discrimination, the significant rules on the burden of proof in discrimination cases, the scope for positive action, requirements of equality plans as well as accompanying principles on direct effect, sanctions efficiency, etc Later action in the area of non-discrimination is – as is stated in the Green Paper on Equality and non-discrimination in an enlarged European Union – built upon... line of argument and other critical views see further McCrudden, Gender Equality See, for instance, A-G Tizzano in Case C-173/99 BECTU [2001]ECR I-4881 Not so the Administrative Court, see Case T-177/01 J´go-Qu´r´ et Cie SA v the Commission e ee [2002] See also the case of the European Court of Human Rights, Christine Goodwin v The UK (Judgment 11 July 2002)  154 equality law in an enlarged european. .. [2000] ECR I-933 and C -50 /96 Schr¨ der [2000] ECR I-774, para 57 of both o 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 The European Commission’s Communication incorporating equal opportunities for women and men into all Community... out the Union s values in the following way: ‘the union is founded on the values of respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights, including the rights of persons belonging to minorities These values are common to the Member States in a society in which pluralism, non-discrimination, tolerance, justice, solidarity and equality between women and men... treatment for men and women as regards access to employment, vocational training and promotion, and working conditions51 (hereafter the Amended ETD and the ETD, respectively) was due for implementation by 5 October 20 05 It was adopted in light of Article 6 of the Treaty on the European Union, addressing the fundamental rights as guaranteed by the European Convention and recognised by the Union Charter . States. 15 2equality law in an enlarged european union dependants, addressing men in achieving gender equality, integration of the gender perspective into immigration and integration policies and monitoring. concept of indirect discrimination? Will 1 45 14 6equality law in an enlarged european union multiple non-discrimination grounds reinforce a formal equality approach as the common denominator or,. 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. 3 15 32. 14 0equality law in an enlarged