European Labour and Social Security Law – Literature Week 2: Equal Treatment
T. Jaspers, European labour Law, 2019, Chapter 3 (pp.131-200)
3.1 Introduction
3.1.1 The First Steps for Equal Treatment in EU Law
Even though the European Communities were largely based on economic integration, the EEC Treaty
did contain in Article 119 a provision for equal pay between women and men. This was included
because, in the absence of a shared obligation to ensure equal pay, some Member States could gain a
competitive advantage through reliance on cheap female labour. In 1971, the CJEU in Defrenne v
SABENA found this provision to be directly effective. In 1976, then, legislation was adopted that
prohibited discrimination on grounds of sex in employment and vocational training (Directive 76/207).
3.1.2 Widening the Scope of EU Anti-Discrimination Law
In 1997, the Member States agreed to amend the EC Treaty in order to create a new legal competence
for the Union to adopt measures to combat discrimination on grounds of “sex, racial or ethnic origin,
religion or belief, disability, age or sexual orientation” (now in Article 19 TFEU). Then, in 2000, two new
directives were adopted. First, the Racial Equality Directive, which prohibits discrimination on grounds
of racial or ethnic origin in employment, but also other fields, such as access to and supply of goods
and services, social protection, and education. Second, the Employment Equality Directive, the latter
one of which prohibits discrimination on grounds of religion or belief, disability, age or sexual
orientation.
3.1.3 Deepening EU Anti-Discrimination Law
The directives of 2000 were followed by the 2006 ‘Recast’ Gender Equality Directive, the 2010 Equal
Treatment in Self-Employment Directive, as well as the 2004 extension of legislation on gender
equality into the field of goods and services. Running parallel to the expansion of secondary legislation
has been a strengthening of equal treatment provisions within the primary law instruments of the
Union, such as the adoption of the Charter of Fundamental Rights.
3.2 Fundamental Sources of Equal Treatment Law in the EU
Beyond Article 157 TFEU on equal pay for men and women, there are three main legal sources that warrant
particular attention:
3.2.1 The Charter of Fundamental Rights of the European Union
The Charter is particularly important for equal treatment because it includes a chapter on ‘equality’. It
begins with two general provisions that apply to a wide range of forms of discrimination, namely
Article 20 and 21(1). As was demonstrated by Test-Achats, the fundamental rights found in the Charter
provide a minimum guarantee, from which the Union nor its Member States can deviate. It should be
noted, however, that the impact of the Charter is constrained by the limitations on its scope, as it only
applies in respect of the Member States when they are “implementing Union law” under Article 51(1).
Nonetheless, the Charter has become very important in the field of equal treatment, since in
Egenberger (para 77), it was ruled that Article 21 was horizontally directly effective.
3.2.2 The General Principle of Equal Treatment in EU Law
In Internationale Handelsgesellschaft (1970), the CJEU recognised that respect for fundamental rights
was a ‘general principle’ of EU law. This formed part of a broader body of case law in which the Court
held that there were ‘general principles’ of law implied within the Treaties (now in Article 6(3) TEU).
Specifically, the Court has maintained that directives are not horizontally directly effective if the
employer is not part of the state (or any emanation thereof). As an alternative source of legal
obligations, the Court has taken recourse in the general principle of equal treatment.
3.2.3 UN Convention of the Rights of Persons with Disabilities
[…]
, 3.3 The Concept of Discrimination
3.3.1 Grounds of Discrimination
3.3.1.1 Sex-Gender (Including Discrimination Related to Pregnancy/Maternity)
In was in P v S that the Court found that the protection against discrimination on the grounds
of sex also applied to a person in the process of surgical gender reassignment. This was
followed up by K.B. and Richards. The principle of equality between men and women,
according to Directive 76/207, already provided for the legitimacy of special protection for
women’s biological condition during pregnancy and maternity. In Dekker, the Court made it
clear that unfavourable treatment of women on the grounds of pregnancy or maternity
constitutes direct discrimination on the grounds of sex.
3.3.1.2 Racial or Ethnic Origin
[…]
3.3.1.3 Religion or Belief
The cases of Achbita and Bougnaoui both concerned Muslim women who had been dismissed
from their jobs because they wished to wear a headscarf at work. The case raised the
question of whether the concept of religion includes the manifestation of a person’s beliefs.
The CJEU found that this concept should be interpreted as covering the manifestation of one’s
religious beliefs as well, indicating that situations where individuals encounter limitations on
how they can do so may fall within the scope of the directive (Achbita and Bougnaoui, para
28).
3.3.1.4 Disability
In Chacón Navas, the Court held that the concept of disability had to be given “an
autonomous and uniform interpretation” throughout the EU (para 42). Its definition was
widely regarded as reflecting a medical model of disability because it placed considerable
emphasis on the individual’s impairment. In Ring and Skoubou Werge, however, it changed its
definition to match more closely the social interpretation, as provided in the UN Convention.
3.3.1.5 Age
In addition to Articles 13 TEU and 21(1) Charter, the Employment Equality Directive bans
direct and indirect discrimination as well as harassment and instructions to discriminate on
the grounds of age. A special characteristic of the age discrimination ban is its weak format,
which opens it up for the justification of direct discrimination. However, since everyone has
an age and everyone grows older constantly, age discrimination has sometimes been
regarded as more acceptable than other forms of discrimination. Litigation has concerned
both discrimination on grounds of old and young age. Kücükdeveci and Hütter concerned
detrimental working conditions for people under 25 years of age.
3.3.1.6 Sexual Orientation
Whereas the Court recognised in the mid-1990’s in Grant, that discrimination against
transgender persons (in relation to gender reassignment) constituted sex discrimination,
discrimination based on sexual orientation was deemed to fall outside the scope of these
provisions. Sexual orientation was, however, among the grounds covered by the new
competences in Article 13 of the Amsterdam Treaty (now Article 19 TFEU) and is now
regulated by the Employment Equality Directive (see Bell (2002), Chapter 4). In the Accept
case it was indicated that statements that discriminated on grounds of sexual orientation
could be in breach of EU law (in that case concerning the possible recruitment of gay football
players). Case law furthermore reflects a significant development of same-sex partnership
rights (see Bell (2002)), though it also indicates that the right to equal treatment for same-sex
couples remains contingent upon a prior decision of the national legislature to create a legal
framework for the recognition of such relationships.
T. Jaspers, European labour Law, 2019, Chapter 3 (pp.131-200)
3.1 Introduction
3.1.1 The First Steps for Equal Treatment in EU Law
Even though the European Communities were largely based on economic integration, the EEC Treaty
did contain in Article 119 a provision for equal pay between women and men. This was included
because, in the absence of a shared obligation to ensure equal pay, some Member States could gain a
competitive advantage through reliance on cheap female labour. In 1971, the CJEU in Defrenne v
SABENA found this provision to be directly effective. In 1976, then, legislation was adopted that
prohibited discrimination on grounds of sex in employment and vocational training (Directive 76/207).
3.1.2 Widening the Scope of EU Anti-Discrimination Law
In 1997, the Member States agreed to amend the EC Treaty in order to create a new legal competence
for the Union to adopt measures to combat discrimination on grounds of “sex, racial or ethnic origin,
religion or belief, disability, age or sexual orientation” (now in Article 19 TFEU). Then, in 2000, two new
directives were adopted. First, the Racial Equality Directive, which prohibits discrimination on grounds
of racial or ethnic origin in employment, but also other fields, such as access to and supply of goods
and services, social protection, and education. Second, the Employment Equality Directive, the latter
one of which prohibits discrimination on grounds of religion or belief, disability, age or sexual
orientation.
3.1.3 Deepening EU Anti-Discrimination Law
The directives of 2000 were followed by the 2006 ‘Recast’ Gender Equality Directive, the 2010 Equal
Treatment in Self-Employment Directive, as well as the 2004 extension of legislation on gender
equality into the field of goods and services. Running parallel to the expansion of secondary legislation
has been a strengthening of equal treatment provisions within the primary law instruments of the
Union, such as the adoption of the Charter of Fundamental Rights.
3.2 Fundamental Sources of Equal Treatment Law in the EU
Beyond Article 157 TFEU on equal pay for men and women, there are three main legal sources that warrant
particular attention:
3.2.1 The Charter of Fundamental Rights of the European Union
The Charter is particularly important for equal treatment because it includes a chapter on ‘equality’. It
begins with two general provisions that apply to a wide range of forms of discrimination, namely
Article 20 and 21(1). As was demonstrated by Test-Achats, the fundamental rights found in the Charter
provide a minimum guarantee, from which the Union nor its Member States can deviate. It should be
noted, however, that the impact of the Charter is constrained by the limitations on its scope, as it only
applies in respect of the Member States when they are “implementing Union law” under Article 51(1).
Nonetheless, the Charter has become very important in the field of equal treatment, since in
Egenberger (para 77), it was ruled that Article 21 was horizontally directly effective.
3.2.2 The General Principle of Equal Treatment in EU Law
In Internationale Handelsgesellschaft (1970), the CJEU recognised that respect for fundamental rights
was a ‘general principle’ of EU law. This formed part of a broader body of case law in which the Court
held that there were ‘general principles’ of law implied within the Treaties (now in Article 6(3) TEU).
Specifically, the Court has maintained that directives are not horizontally directly effective if the
employer is not part of the state (or any emanation thereof). As an alternative source of legal
obligations, the Court has taken recourse in the general principle of equal treatment.
3.2.3 UN Convention of the Rights of Persons with Disabilities
[…]
, 3.3 The Concept of Discrimination
3.3.1 Grounds of Discrimination
3.3.1.1 Sex-Gender (Including Discrimination Related to Pregnancy/Maternity)
In was in P v S that the Court found that the protection against discrimination on the grounds
of sex also applied to a person in the process of surgical gender reassignment. This was
followed up by K.B. and Richards. The principle of equality between men and women,
according to Directive 76/207, already provided for the legitimacy of special protection for
women’s biological condition during pregnancy and maternity. In Dekker, the Court made it
clear that unfavourable treatment of women on the grounds of pregnancy or maternity
constitutes direct discrimination on the grounds of sex.
3.3.1.2 Racial or Ethnic Origin
[…]
3.3.1.3 Religion or Belief
The cases of Achbita and Bougnaoui both concerned Muslim women who had been dismissed
from their jobs because they wished to wear a headscarf at work. The case raised the
question of whether the concept of religion includes the manifestation of a person’s beliefs.
The CJEU found that this concept should be interpreted as covering the manifestation of one’s
religious beliefs as well, indicating that situations where individuals encounter limitations on
how they can do so may fall within the scope of the directive (Achbita and Bougnaoui, para
28).
3.3.1.4 Disability
In Chacón Navas, the Court held that the concept of disability had to be given “an
autonomous and uniform interpretation” throughout the EU (para 42). Its definition was
widely regarded as reflecting a medical model of disability because it placed considerable
emphasis on the individual’s impairment. In Ring and Skoubou Werge, however, it changed its
definition to match more closely the social interpretation, as provided in the UN Convention.
3.3.1.5 Age
In addition to Articles 13 TEU and 21(1) Charter, the Employment Equality Directive bans
direct and indirect discrimination as well as harassment and instructions to discriminate on
the grounds of age. A special characteristic of the age discrimination ban is its weak format,
which opens it up for the justification of direct discrimination. However, since everyone has
an age and everyone grows older constantly, age discrimination has sometimes been
regarded as more acceptable than other forms of discrimination. Litigation has concerned
both discrimination on grounds of old and young age. Kücükdeveci and Hütter concerned
detrimental working conditions for people under 25 years of age.
3.3.1.6 Sexual Orientation
Whereas the Court recognised in the mid-1990’s in Grant, that discrimination against
transgender persons (in relation to gender reassignment) constituted sex discrimination,
discrimination based on sexual orientation was deemed to fall outside the scope of these
provisions. Sexual orientation was, however, among the grounds covered by the new
competences in Article 13 of the Amsterdam Treaty (now Article 19 TFEU) and is now
regulated by the Employment Equality Directive (see Bell (2002), Chapter 4). In the Accept
case it was indicated that statements that discriminated on grounds of sexual orientation
could be in breach of EU law (in that case concerning the possible recruitment of gay football
players). Case law furthermore reflects a significant development of same-sex partnership
rights (see Bell (2002)), though it also indicates that the right to equal treatment for same-sex
couples remains contingent upon a prior decision of the national legislature to create a legal
framework for the recognition of such relationships.
