2019 Seminar – Update on CJEU case law, Positive action in gender equality and non-discrimination, Racial discrimination in education and EU equality law, Strategic litigation in gender equality and non-discrimination, Religious ethos in employment
The annual legal seminar of the European network of legal experts in gender equality and non-discrimination (EELN) on 29 November 2019 brought together almost 200 representatives of the European Commission, EU Member State governments, Equality Bodies, EU umbrella organisations, academics from across Europe and members of the network itself.
The participants were welcomed on behalf of the European Commission by Tiina Astola, Director-General, European Commission, DG Justice and Consumers. In her speech she highlighted several recent Commission initiatives and successes, among others the Work-life Balance Directive which entered into force in August 2019. She also reiterated the European Commission’s strong commitment to seeing the EU become party to the Istanbul Convention on preventing and combating violence against women and domestic violence. Noting that more than ten years have passed since the draft EU horizontal non-discrimination Directive, she underlined the fact that the Commission is more committed than ever to seeing this Directive adopted. Last but not least, she stressed the importance of the decision of the European Commission to appoint, for the first time ever, a Commissioner for Equality, Elena Dalli. She will be responsible, among other things, for the development of a new Gender Equality Strategy and binding measures for pay transparency.
The seminar participants were subsequently treated to an inspiring keynote address delivered by Alexandra (Sacha) Prechal, a judge at the Court of Justice of the European Union. Judge Prechal tackled the question of to what extent the European Charter of Fundamental Rights can be a source of rights and whether directives can provide interpretation of the Charter. An important conclusion in her speech was that there must be a free-standing right in the Charter to make a discrimination claim invoking the Charter.
The workshops at this year’s seminar covered the most important topics to be addressed by the EELN during the new four-year period (2019 – 2022) as a joint gender and non-discrimination network.
Workshop – Update on European case law
This year’s edition of this returning workshop was inspired by the thematic report written for the network by Colm O’Cinneide and Kimberly Liu on the implementation of CJEU case law This year’s edition of this returning workshop was inspired by the thematic report written for the network by Colm O’Cinneide and Kimberly Liu on the implementation of CJEU case law.
The workshop heard presentations by Colm O’Cinneide and Christa Tobler and discussed recent developments in the case law of the Court of Justice of the European Union in the field of non-discrimination and gender equality, referring specifically to recent important judgments and their impact on national equality and anti-discrimination legislation and case law. In the presentations, Colm O’Cinneide focused on non-discrimination cases, while Christa Tobler discussed the cases relevant to gender equality.
Workshop – Positive action in gender equality and non-discrimination
The basis for this workshop was the thematic report written for the network by Christopher McCrudden, which addresses positive action related to gender equality in employment, reviewing (national) regulatory frameworks and identifying best practices.
The workshop heard a presentation by Chris McCrudden, covering the major findings of the report. A key theme in his presentation and in the report is that positive action is currently seen as an exception in EU anti-discrimination law and that a paradigm shift is needed. He presented a 12-point action plan, outlining what such a paradigm shift would entail, including the introduction of positive obligations. The second speaker, Marc De Vos, took the view that current EU anti-discrimination law provides sufficient opportunity to apply the concept of positive action to ensure full and substantive equality in practice and allows the EU Member States to adopt specific measures to prevent or compensate for disadvantages.
Workshop – Racial discrimination in education and EU equality law
This workshop was inspired by the thematic report written for the network by Lilla Farkas and Dezideriu Gergely (not yet published). The workshop discussed and analysed national and international case law on racial discrimination in education (including segregation), with reference to the Racial Equality Directive, and assessed its practical impact in view of diverse forms of enforcement.
Dezideriu Gergely outlined how the prohibition of discrimination in education is enshrined in various instruments of international human rights law and EU law and how this prohibition is transposed in the legislation of the EU Member States. Lilla Farkas subsequently highlighted various salient issues encountered in the course of the research for the report, such as difficulties in access to justice in combating discrimination in education, but also the underutilisation of legal remedies by minority groups and the lack of enforcement.
Workshop – Strategic litigation in gender equality and non-discrimination
The basis for this workshop was the thematic report written for the network by Marion Guerrero (not yet published). The report focuses on strategic litigation in the field of gender equality. In addition, Theo Alexandridis presented his practical experience in strategic litigation on the ground of race.
Marion Guerrero explained the constituent elements of the concept of strategic litigation, the various impacts of strategic litigation and where, how and by whom it is utilised. She underlined in her conclusions and recommendations the importance of the availability of resources and funds for the development and use of strategic litigation. Theo Alexandridis specifically explored the use of strategic litigation to improve the situation of Roma and to prevent discrimination. He went into the various reasons why strategic litigation for Roma is not working.
Workshop – Religious ethos in employment and access to goods and services
The workshop started with a presentation by Isabelle Rorive on the issue of religious ethos in employment, followed by a presentation by Romaniţa Iordache on religious ethos in access to goods and services. Isabelle Rorive discussed the exceptions that the Employment Equality Directive (2000/78/EC) provides for direct discrimination based on religion, digging further into the CJEU decisions Egenberger (C-414/16) and IR (C-68/17) as cases in point. Romaniţa Iordache, who also wrote an article on the topic for the European Equality Law Review, concluded that there is an emerging global trend of invoking religious freedom when challenging the non-discrimination and equality principle. Yet accommodation is reasonable only when it does not result in disproportionate harm or in perpetuating existing prejudice.
Workshop – Burden of proof in cases of gender equality and non-discrimination
Based on her article written for the European Equality Law Review, Julie Ringelheim referred in her presentation to various important CJEU decisions and discussed how sharing the burden of proof works, how to establish a presumption of discrimination, the use of special means of proof, such as statistics and situation testing, and complainants’ access to information held by the respondent. In addition, Iustina Ionescu shared her experience as a practitioner of how the burden of proof works in practice in cases of gender equality and non-discrimination, focusing on the difficulties and the how it alleviates the situation of the complainant.