Christa Tobler is Professor of European Law at the Universities of Basel (Switzerland) and Leiden (Netherlands). She wrote the 2022 thematic report on indirect discrimination under Directives 2000/43 and 2000/78 for the network.

Christa Tobler started her presentation by giving a general overview of the concept of indirect discrimination. In this context, she first explored its development under EU law, where it emerged in case law from the late 1960s, in order to ensure the functioning of the fundamental principles of European law. She then presented the concepts, functions and definition. She posited that indirect discrimination has two functions, namely to serve as an additional tool in detecting discrimination and to make underlying causes of discrimination visible.

The legal definition of indirect discrimination in the Directives is based on three elements. Hence, the concept covers an apparently neutral provision, criterion or practice which has a disparate effect, which cannot be objectively justified, on persons covered by a prohibited discrimination ground compared to other persons. It is important to note that a link is required between the action and a discrimination ground included in the respective legal framework.

Christa Tobler presented important notions of the concept as developed in CJEU case law by referring to several recent cases. She drew attention to the Court’s interpretation that the use of a formally neutral criterion can amount to direct discrimination if it was introduced based on a rationale relating to a prohibited discrimination ground or if it has an exclusionary effect on a certain group, which inextricably links it to prohibited discrimination.

Furthermore, she examined the Court’s understanding of the disparate effect criterion. In this context, she emphasised that the Court found that even a formally neutral measure can amount to direct discrimination if it works to the disadvantage of far more persons who possess the protected characteristic than persons who do not possess it. However, she contended that the Court is not consistent on this issue.

In addition, she presented some observations on how the Court deals with conflicting interests at the level of justification. In the final part of her presentation, Christa Tobler examined how the concept of indirect discrimination could help the Court to recognise multiple discrimination.

 

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Powerpoint Indirect discrimination

Miguel De la Corte-Rodríguez has been working as a Social Security Auditor for the Spanish Public Administration since 2005. From 2017 to 2020 he was seconded to the Gender Equality Unit of the European Commission, where he dealt first hand with the preparation, negotiation and approval of the 2019 Directive on Work-Life Balance (WLB). At the moment, he is an Affiliated Senior Researcher at the Institute for Social Law of KU Leuven, where he participates regularly as a guest lecturer. He wrote the 2022 thematic report on the transposition of the WLB Directive in EU Member States for the network.

Miguel De la Corte began his presentation by outlining the main content of the WLB Directive, the objective of which is to improve the situation of women in the labour market through better and more equally shared WLB measures. He stressed that in comparison to EU law in place before the adoption, the Directive puts a specific focus on fathers’ rights and incentives for fathers to take parental leave.

Furthermore, he highlighted the Directive’s life cycle approach, with a focus not only on care for children but also care for other family members. In general, the Directive strengthens the concept of parental leave and the right to request flexible working arrangements and newly introduces the concepts of paternity (because of encouraging the earliest possible involvement of the father in raising children) and carers’ leave.

With regard to the transposition of the Directive, he sees some serious shortcomings. Hence, while all Member States needed to adopt implementation measures to bring their legislation into harmony with the provisions of the Directive, only 15 States had done so by the cut-off date of his thematic report (31 August 2022) and only one country had implemented the Directive satisfactorily.

According to Miguel De la Corte-Rodríguez, particular shortcomings of transposition remain in the areas of parental leave, flexible working arrangements and legal protection. In these areas, the legislation of the majority of Member States is not in line with the provisions of the Directive. Furthermore, even where legislation is in place, he was critical of issues such as existing conditions of eligibility to take leave, insufficient allowances and the existence of family rights (meaning that families can decide who takes the leave which goes against gender equality), as well as problems with personal scope.

He concluded by highlighting that, while there are some positive aspects and less problematic areas, for example regarding force majeure leave and paternity leave, much work remains for the Member States, the European Commission and academics.

 

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Powerpoint The transposition of the WLB Directive

 

Biljana Kotevska is a socio-legal feminist researcher from Macedonia. She holds a doctorate in law from Queen’s University Belfast.

Vera Pavlou is a lecturer in labour law at the University of Glasgow. She holds a PhD in Law from the European University Institute.

Vera Pavlou and Biljana Kotevska wrote the forthcoming report on women in the public sphere for the network.

In their presentation, Biljana Kotevska and Vera Pavlou looked at measures Member States have taken to tackle the problem of female under-representation in decision-making positions. They started by mapping out important legally binding standards regarding women’s participation in the public sphere at the international level, focusing on the UN, the Council of Europe, the OSCE and the EU, before turning to measures taken at the national level which are clearly influenced by these international developments.

In particular, they looked at measures taken with regard to elections, the legislature, the executive and public enterprises. Some general observations they made in this context were that while quotas are often seen as a panacea, they are only useful if they can be and are enforced and if they are accompanied by institutional and cultural transformation measures to create a more supportive environment for female decision-makers. This includes soft and hard measures to adjust procedures and the infrastructure of decision-making in the public sphere, but also, for example, measures to combat hate speech against women.

Furthermore, they stressed the importance of an intersectional perspective and the need to put in place measures to prevent regression.

 

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Powerpoint women in the public sphere

Colm O’Cinneide is Professor of Constitutional and Human Rights Law at University College London and has published extensively in the field of comparative constitutional, human rights and anti-discrimination law.

Janneke Gerards is Professor of Fundamental Rights Law at the Montaigne Centre for Rule of Law and Administration of Justice at Utrecht University in the Netherlands. Her research focuses on fundamental rights, equal treatment law, judicial review and new technologies.

Colm O’Cinneide started his presentation by noting that while the number of discrimination cases in front of the CJEU continues to drop, there were nevertheless some significant judgements in 2022. Furthermore, he observed that the Court is now engaging more with Advocate General (AG) opinions and other sources of international law, such as the ECHR and the CRPD.

He continued by presenting important judgements in a number of areas, including disability, religion and belief, and gender, as well as age discrimination, where he observed that greater familiarity with this issue at the national level means it is now less frequently dealt with by the Court than some years ago. He concluded by emphasising the further evolution of EU law taking place through these recent judgements and by noting that AG opinions, in particular, seem to be increasingly aware of the social context of a case.

In the second part of the presentation, Janneke Gerards presented some important judgements delivered by the ECtHR in 2022. While there was a new record of 42 judgements on discrimination cases this year, she focused on a number of significant cases which demonstrate certain tendencies in the Court’s line of argumentation.

First, she looked at several domestic violence cases. Related to these cases, she especially highlighted the high burden of proof when trying to argue for a violation under Article 14 ECHR which makes the protection offered by this article inadequate.

In addition, she presented significant cases concerning systematic discrimination (where some positive developments can be seen), ethnic profiling (where she saw some problems related to the fact that the Court demanded proof beyond reasonable doubt that a discriminatory treatment was due to ethnic profiling) and finally two Grand Chamber judgements regarding social security and social benefits.

 

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Powerpoint Colm O'Cinneide 2022

Overview CJEU cases 2022

Power point Janneke Gerards 2022

Case overview ECtHR 2022

 

Isabelle Chopin, director of the Migration Policy Group and specialist coordinator of the non-discrimination strand of the network, thanked all the experts and speakers and the organisers of the seminar, commending the network on ‘making the invisible visible’. She then gave the floor to Irena Moozova, Director for Equality and Union Citizenship at the European Commission, who looked back at the different workshops and provided some input from the European Commission’s work related to the workshop’s topics.

With regard to the workshop on structural discrimination, she stressed the prominent place this subject occupies in the work of the European Commission and briefly presented the European Commission’s action against structural racism. Commenting on the workshop on indirect discrimination, she once again highlighted the importance of the proposal on strengthening equality bodies and thanked the network for its valuable input. She also reiterated the importance of the workshop on European case law in order to make sense of the essence of cases and how to use them in further practice.

With regard to the workshop on the transposition of the Work-Life Balance Directive, she assured the participants that the European Commission stands ready to launch infringement procedures to ensure that it is satisfactorily transposed in all Member States. Finally, she commended the speakers of the workshop on women in the public sphere for their report in an area where much future action is required.

 

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Linda Senden, professor of EU Law at Utrecht University and specialist coordinator for the gender equality strand, welcomed everyone on behalf of the network to the first legal seminar in a hybrid format. She then gave the floor to Commissioner Helena Dalli.

Helena Dalli, European Commissioner for Equality, opened the legal seminar and thanked the legal network for the valuable support they provide to the Commission’s work. She highlighted the importance of the network’s contributions to the Commission’s recent proposals to strengthen equality bodies.

Furthermore, she especially thanked the network for their valuable input regarding the Directive on gender balance on company boards and the Proposal for a Directive on combating violence against women and domestic violence, as well as the implementation and transposition of the Work-Life Balance Directive.

Keynote speech from Ruth Rubio Marín: Is European equality constitutionalism obsolete?

Ruth Rubio Marín is Professor of Constitutional Law at the University of Seville as well as Professor on the Hauser Global Law School Program at New York University. She also holds the UNESCO Chair in Human Rights at the International University of Andalucía.

Ruth Rubio Marín started her keynote speech on the topic ‘Is European equality constitutionalism obsolete?’ with reference to the global cultural backlash in response to women’s and LGBTIQ+ transnational mobilisation. These movements rely heavily on four different tactics: First, the tactic of constitutional entrenchment, or the modification of constitutions; furthermore, the tactics of constitutional interpretation and constitutional co-option to serve anti-gender purposes and finally the tactic of constitutional pre-emption, which means perceiving the constitution as prevailing over conflicting human rights norms.

She then posed the question whether European constitutionalism could counter this phenomenon. In this context, she noted that there are examples of participatory and transformative forms of egalitarian constitutionalism, which emphasise the importance of women as decision-makers and the significance of intersectionality, as well as expanding equality from the public to the private sphere. However, she also highlighted that countries in Europe are for the most part still stuck in the paradigm of inclusive egalitarian constitutionalism, which builds on formal equality between women and men.

Likewise, turning to European Primary Law, she observed that while some notions of substantive equality are embraced, for example through the Treaties of Amsterdam and Lisbon as well as the Charter of Fundamental Rights of the European Union, many limitations remain. In this context, she criticised, for instance, the limited competences of the European Union and problematic unanimity rules for decision-making, the under-inclusive understanding of forms of subordination, ignoring for example considerations of intersectionality, and the omission of certain rights, such as reproductive health.

She concluded by calling for a new constitutional basis in Europe, supported by participatory processes. 

Response by David Oppenheimer

David Oppenheimer is Faculty Co-Director of the Pro Bono Program at Berkeley Law School and Director of the Berkeley Center on Comparative Equality & Anti-discrimination Law.

In response to Ruth Rubio Marín’s view of European Constitutionalism, David Oppenheimer turned the participants’ attention to the situation in the United States of America by presenting some important and highly problematic decisions made by the US Supreme Court on equality and non-discrimination issues. He concluded by warning the participants of even further discriminatory decisions in the future.

 

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Powerpoint Keynote speech 

Powerpoint Response David Oppenheimer

Cases cited by David Oppenheimer