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European Equality Law Network

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

2012 Seminar - Equality law for everyone: Challenges ahead

On 26 November 2012 the fifth yearly 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 161 participants, representatives of the European Commission, EU Member States governments, Equality Bodies and EU-umbrella organisations.

The feedback from the participants, collected through a satisfaction survey PDF (76 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 EU equality and anti-discrimination Directives, to discuss particular issues of discrimination under the title ‘Equality law for Everyone: Challenges Ahead’ and to share practices and experiences. The seminar brought together a number of high level academics from across the European Union. Current legal developments and future prospects in the area of non-discrimination and gender equality were widely discussed. The programme PDF (53 kB) of this year’s one-day seminar included both plenary sessions and parallel workshops.

The keynote speech, presented by Judge Sacha Prechal from the Court of Justice of the European Union to introduce the 2012 Legal Seminar, examined equality and anti-discrimination law from a judicial perspective, in particular how the Court had tackled references for preliminary rulings in that area.

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

  • The recent CJEU Case-Law
  • Pregnancy and Maternity Discrimination
  • The ECrtHR’s Case-Law
  • Age Discrimination in Employment
  • Religious Discrimination in Employment

For a full overview of the discussions, please check the audio recordings of each workshop.

Workshop - Recent CJEU case law

The following issues had been discussed:

  • The question of burden of proof was debated, in the light of the recent Meister case, in particular the impact on presumption against the employer, the interaction with national rules on evidence and the interaction of EU law with national data protection rules (to invoke data protection rules rather than anti-discrimination law seems more effective in some cases).
  • In the context of the relationship between EU anti-discrimination and the Charter of Fundamental Rights, would a horizontal application of Article 21 be possible? Answers provided pointed at the provision which seems to operate in the same way as Article 14 of the European Convention on Human Rights and therefore cannot be invoked separately but in conjunction with other provisions. There is consequently no direct effect, but the possibility to invoke the Charter exists in light of the principle of primacy under EU law. This being said, it is often a question of invocability rather than a problem of direct effect as such.
  • The Court of Justice of the European Union has rendered 14 judgements in total, with a disproportionate high number of cases related to age (and no case law on religion or belief). This pattern arises from a fabric of our society which had accepted differences in relation to age for decades and had produced a mass of cases showing a clear limitation on the ground of age which appear to be problematic under anti-discrimination law. On factor which may explain that there are so many cases concerning age is that it is the easiest criteria to prove as there is no need for a theoretical comparison and that it is not difficult to show that discrimination has occurred. In addition, the defence in Article 6(1) of the Employment Equality Directive concerns both direct and indirect discrimination and does not provide much on the substance, which leaves a lot to the imagination. On the other hand, the low number of cases related to the other grounds may be caused by the fact that they are not litigated or better regulated at the national level. But the most probable explanation concerns the general lack of knowledge which prevents cases from reaching Luxembourg.
  • Finally, other European avenues allowing for litigation on the basis of other grounds are available, by contrast to the Court of Justice where national courts operate as filter.

Workshop - Pregnancy and maternity discrimination

The following issues had been discussed:

  • There are two different approaches possible towards pregnancy and maternity, which can be from a discrimination perspective or from a health and safety perspective. However the protection offered from the second angle bears the risk of overprotecting women workers out of the labour market, which can possibly lead to discrimination (do too many rights create discrimination - bullying and mobbing issues). EU law regarding pregnancy and maternity has coincided with both approaches, but health and safety measures have never been defined or examined in the light of anti-discrimination to check whether they were in line with the equality directives. Consequently, protective health and safety measures and anti-discrimination should go hand-in-hand. According to the Court of Justice, the obligation of health and safety cannot be taken into consideration in a detrimental manner to the pregnant worker. The 2008 proposal for a new pregnancy directive addressing those issues is currently blocked as it stands. In addition, current protection specifically relates to pregnancy but it should also be combined with special parental rights or autonomous rights for mothers and fathers. Fathers are seen as key in combating stereotypes and achieving equality.
  • The problem of breastfeeding tends to relate to the issue of leave (short or long). The discussion focused on how to combine breastfeeding with work. In addition, the question of full payment during leave appears more important than reforming on longer period of leave (question of pay is crucial in the context of pregnancy and maternity).
  • The approach of self-regulation as a complement to legislation was debated in the light of the issues raised above.
  • Finally, this workshop also stirred some discussion around the opposition of women’s rights with children’s rights, as children are the responsibility of both parents and society.

Workshop - The European Court of Human Rights' case law

For related report please see - The prohibition of discrimination under European Human Rights Law: relevance for the EU non-discrimination Directives

The following issues had been discussed:

  • Both courts, the European Court of Human Rights and the Court of Justice of the European Union operate from different legal systems as regards the equality and non-discrimination principles. For instance Article 14 of the European Convention on Human Rights relates to violation of rights under the Convention providing an open list of non-discrimination grounds, whereas Article 19 of the Treaty on the Functioning of the European Union provides for a closed list.
  • The Court of Justice in some respects is more advanced than the European Court of Human Rights, for instance the concept of indirect discrimination is much more developed under EU law, whereas it has not been consistently applied by the Court of Human Rights.
  • With regard to the grounds of discrimination, the Court of Justice could learn from the European Court of Human Rights that some grounds are more ‘invidious’ than others. Very weighty reasons test or strict test are applied when the case concerns groups that have historically suffered from stereotyping and social exclusion. This approach also opens possibilities for acknowledging multiple discrimination and a greater flexibility to allow preferential treatment for certain groups (this could lead the Court of Justice to depart from its narrow interpretation towards positive action schemes, for instance).

Workshop - Age discrimination in employment

For related report please see – Age and employment

The following issues had been discussed:

  • Age offers a specific protection anchored in the implementation of the exception to the prohibition of differential treatment enshrined in the Employment Equality Directive, which was justified by its special status in labour policies and working life a few decades ago. Direct discrimination on grounds of age can therefore be justified. Most states have implemented the justification principle laid down in Article 6(1) of the directive in broad terms (with a very wide range of methods of transposition), but they did not review age limitations laid down in pre-existing legislation. Case decisions have subsequently allowed to identify key concepts as regards legitimate aims. The list of legitimate aims must not be pre-defined (some Member states have open lists, or list of examples) but the legislation must allow identification in order to then assess the aim. Finally, it must not be purely individual but must show labour policy purposes. By contrast, there has been more uniformity in transposition with regard to occupational pension scheme laid down in Article 6(2) of the directive.
  • Lesser scrutiny is required for genuine occupational requirement or indirect discrimination where a generational balance test is now emerging.
  • The issue of admissibility of an aim based on space for social dialogue was widely discussed. This has been held inadmissible as social partners should not detain more powers than the legislator.

Workshop - Religious discrimination in employment

For related report please see – Religion and belief: discrimination in employment

The following issues had been discussed:

  • There is a lack of case law from the Court of Justice of the European Union, whereas we need rulings to guide us on how to address religious discrimination. The reasons behind the lack of court decisions may be the weakness of civil society to address religious discrimination and the fact that national courts are unwilling to refer questions for preliminary ruling to the CJEU because of the sensitiveness of this issue.
  • There are circumstances which justify discrimination on grounds of religion; such as the rights of others, health and safety, dress codes or the specific functioning of a company or organisation.
  • In cases involving conflicting rights (for instance conflicts with non-discrimination on the ground of sexual orientation), the trend is that they are now argued to come under anti-discrimination provisions (whereas in the past freedom of religion was rather invoked), which also increases the impact on EU law. In addition, guiding principles in those situations are not clear, and individual facts have become crucial and determining. In particular, answers to the following questions would be helpful: is there a public or a private function involved? Is the function/organisation funded with public funds? Are specific rights of others being violated?
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