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European Equality Law Network

European network of legal experts in gender equality and non-discrimination

2013 Seminar - Equality law: What kind of equality?

On 29 November 2013 the sixth annual legal seminar of the European Network of Legal Experts in the Non-discrimination Field was organised in cooperation with the European Network of Legal Experts in the field of Gender Equality (managed by the Faculty of Law at Utrecht University). The seminar attracted 141 participants, including representatives of the European Commission, of EU Member States governments, of Equality Bodies and of EU-umbrella organisations.

The seminar also brought together a number of high level academics from across the European Union. The feedback from the participants, collected through a satisfaction survey PDF (90 kB) resulted in a good rating.

The objective of the Legal Seminar was to provide the participants with an opportunity to exchange views on the transposition and implementation of the EU equality and anti-discrimination Directives, to discuss particular issues of discrimination under the title ‘Equality law: What kind of equality?’ and to share practices and experiences. Current legal developments and future prospects in the area of non-discrimination and gender equality were widely discussed. The programme PDF (189 kB) of this year’s one-day seminar included both plenary sessions and parallel workshops.

To introduce the 2013 Legal Seminar, Judge Jean-Guy Huglo from the French Supreme Court in judicial matters (the Court of Cassation) addressed a keynote speech to the participants examining equality and anti-discrimination law from a national judicial perspective and focussing in particular on how the French Court has interpreted the main concepts in the area.

Presentation Judge Jean-Guy Huglo:

The key issues discussed during the workshops, as reported back at the closing plenary session were:

  • Update on the Court of Justice of the European Union Case Law
  • Equal Pay
  • Disability Discrimination
  • Positive Action
  • Housing

Workshop - Update on the Court of Justice of the European Union case law

For the related Thematic Report – please see Evolution and Impact of the CJEU case-law.

The following issues were discussed:

  • The question of shifting the burden of proof was discussed, and in particular the issue of establishing a prima facie discrimination case. The recent Accept case (C-81/12) constituted a basis for the discussions regarding the issue of requiring evidence which is impossible to adduce without interfering with the right to privacy.
  • Participants raised the situation of “forum shopping” for applicants claiming discrimination, especially in relation to how litigants choose whether to bring a case to the CJEU or rather to the European Court of Human Rights. This issue was raised in particular in relation to discrimination on grounds of religion, where applicants seem to refrain from bringing their case to the CJEU.
  • An overview and evaluation of the CJEU case-law shows that it is fairly consistent and that it has crystallised a clear interpretative approach. Analysis also shows that the CJEU makes a transversal interpretation of the grounds of discrimination, applying the principles established in its gender discrimination case-law to the grounds of the 2000 Directives. An overview of the case-law of the Court also shows an evident overrepresentation of age discrimination cases with over 80% of cases being raised on age. These issues were also raised and discussed.
  • The approach taken by the CJEU to equality and anti-discrimination law was also discussed, and participants established that the Court has been clear in determining that the directives should not be read in a narrow or expressly formalistic manner. It was also underlined however that exceptions should be read in a strict and narrow manner.
  • Participants also discussed the need for remedies to be truly effective, proportionate and dissuasive, with regard in particular to the risk of regress within the relevant domestic case-law. The recent Accept case was discussed in this regard also as it raises the issue of adequate sanctions.

Workshop - Equal pay

The following issues were discussed:

  • Participants underlined that after 50 years of applying the principle of equal pay, the gender pay gap is still very important and there are no clear indications that it will decrease. The issue of a gap in pensions was also discussed, as an existing pay gap implies an even more important gap in pensions.
  • The informal market was also discussed, in relation to the potentially important pay gap in this market and its potential impact on pay. The fact that this market is not sufficiently taken into account in the debate on the pay gap was also raised. In addition, participants also raised the decisive impact of public services on the labour market status of women and their contribution to the gender pay gap.
  • The issue of transparency in pay systems was debated, and the need for such transparency was underlined by participants. Countering pay secrecy was seen as an important element in the fight against the gender pay gap. At the same time, the single source approach to pay constitutes an obstacle, as do the decentralisation of collective bargaining and the individualisation of pay. Participants agreed that there is a need for a legislative European intervention to break the pay secrecy.
  • The issue of equal pay was also raised with regard to the grounds of discrimination covered by the 2000 Directives, in particular age and ethnic origin, as the pay gap is a problem affecting these groups as well.
  • Finally, participants discussed ways of tackling the pay gap, raising important elements such as statistics, gender neutral job classifications and pay scales, wage monitoring, supervisory bodies, and sanctions/incentives.

Workshop - Disability discrimination

The following issues were discussed:

  • There is a gap in the Directive as regards the scope, as most people with disabilities are outside the labour market and face difficulties in accessing it: they need equality in the public space, in access to services, education and training, transport to go to work, knowing how to apply for job openings, etc. The importance of the proposal for a Horizontal Directive was underlined, but although changes of governments are expected in the two main countries opposing this proposal, participants were not confident that these changes will affect its future.
  • Participants discussed the proposed Accessibility Act which is still in its preparatory stage. The issue of its legal base was however raised, as its aim is to improve the market of goods and services, and its main concern is the internal market and particularly whether it will impede competition at an international level. An example of the challenges posed during the economic impact analysis is the Tobacco advertising Directive which was seen by the Court as not only distorting competition in the internal market but as having wider implications at the international level. The strictly economic analysis of the impact was criticised for failing to take into consideration the social impact.
  • The question of how persons with disabilities are perceived in society was debated, and the position was expressed that the image of persons with disabilities as objects of sympathy (e.g. war veterans in USA) rather than subjects of rights does not promote the goal of an inclusive society. It was underlined that disability is such a universal trait, and that at some point in our lives most of us will be facing one disability or another, and that it should not be perceived as something that is restricted to a poor minority. In this respect, the importance of observing the philosophy of the UN CRPD to approach the matter from the position of inclusion and rights for everyone was raised.
  • The potential role of the CJEU’s case-law was underlined as an important factor for development in the area. Recent decisions of the Court regarding the scope of protection under the Directive, such as the HK Danmark (Ring and Skouboe Werge) decision, were found to bring an expansion to the scope of the definition of disability. In addition, upcoming cases were mentioned, raising for instance the issue of whether obesity can be considered a disability under the Directive.
  • Finally, participants raised the issue of whether an impairment that prevents the carrying out of one’s work should be seen as strictly applying to one’s employment duties or not. In this regard a recent ruling of the ECtHR in a case against Greece was mentioned, as regards the dismissal of an employee with HIV. Although the employee was fully capable of carrying out his work, he was assumed as not being able to do so and was thus dismissed. Comparatively, a narrow interpretation of the Employment Equality Directive could determine that a disability must be related to the performance of the work to fall under the scope of protection. Such an interpretation is however in breach of the UN Convention.

Workshop - Positive action

The following issues were discussed:

  • Participants discussed the relevance and framing of quota rules for companies, underlining the existence of different systems in the Member States – hard and soft – and raising the issue of the stance/approach taken in the European Commission’s proposal “Women on Boards”.
  • The importance of multiplying a number of different mechanisms to bring about changes in corporate culture was also raised. Such mechanisms include: media; civil society; corporate governance codes; self-regulation and identification of good practice; and the role of the law.
  • Regarding the specific measure of imposing legal quota rules, these were found to have an important symbolic value that equal representation in corporations is taken seriously, but they also have a practical value as they bring about data collection and develop visions, policy, reporting duties, etc. Participants stressed however that clarity is essential with regards to legal quota rules, and the position was expressed that the necessary clarity is lacking in the EC proposal, as some doubts remain regarding the precise legal scope and the issue of whether the proposal sets aspirational targets or binding quotas.
  • The general question of how to ensure effective sanctions was raised, as was the issue of the efficiency of fines but also of public procurement policies for instance. A specific problem of internal legal incoherence that emerged was discussed, i.e. the fact that the revisited EU Public Procurement Directive does not seem to allow using public procurement as a sanction for corporations that do not put appropriate gender policies into place.
  • Finally, the importance of tackling gender inequality at a more fundamental level was underlined, and the relevance to change the underlying structure of inter alia the educational system and gender stereotyping in that system was raised.

Workshop - Housing

For the related Thematic Report – please see Discrimination in Housing.

The following issues were discussed:

  • The area of housing in general was found to be a complex area, involving both EU law (as regards the grounds of gender and race/ethnic origin) and different sources of international human rights law (Convention on economic, social and cultural rights, ECHR, CERD, CEDAW, etc.). This legal framework was seen as a complicating factor for developments in the field.
  • It was determined that discrimination occurs in all phases of housing, i.e. in the supply, the allocation and during the occupation of housing.
  • The elements of society which can aggravate housing discrimination were discussed, such as the general lack in many Member States of social housing and the lack of adapted accommodation, whether it be for older persons, persons with disabilities or of a certain ethnic origin. The specific situations of Roma and of migrant populations were raised as being of particular concern.
  • The issue of shifting the burden of proof was raised as being problematic in cases of alleged housing discrimination. In this regard situation testing was found to be a potentially useful tool, and the importance of keeping statistics was also mentioned (although it was underlined that the existence of statistics does not necessarily bring about change, and the example of the UK was given where statistics show housing discrimination but nothing is done).
  • Finally, the new Immigration Bill in the UK was discussed, as it risks institutionalising housing discrimination by requiring landlords to check the immigration status of applicants and occupants, and to refuse to supply housing to those who are “not entitled”. It was underlined that many elements are still unclear about the proposed bill although it is going through very rapidly and there seems to be more of a political statement than an actual will to implement the bill.
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