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Multiple Discrimination in EU Law
Opportunities for legal responses to intersectional gender discrimination?
THE EUROPEAN NETWORK OF LEGAL EXPERTS IN THE FIELD OF GENDER EQUALITY
Multiple Discrimination in EU Law
Opportunities for legal responses to intersectional
EUROPEAN NETWORK OF LEGAL EXPERTS IN THE FIELD OF GENDER EQUALITY
Susanne Burri and Dagmar Schiek
European Commission Directorate-General for Employment, Social Affairs and Equal Opportunities Unit EMPL/G/2 Theme Equality, Action against Discrimination: Legal Questions This publication has been commissioned by the European Commission under the framework programme PROGRESS (Decision 1672/2006/EC of the European Parliament and the Council, OJ L 315/1 of 15.11.2006).
For more information on PROGRESS see:
Susanne Burri Frans van Eck Titia Hijmans van den Bergh Titia Kloos Hélène Masse-Dessen Simone van der Post Dagmar Schiek Manuscript completed in July 2009.
The information contained in this report reflects, as far as possible, the state of affairs on 23 February 2009.
The contents of this document do not necessarily reflect the opinion or position of the European Commission, Directorate-General for Employment, Social Affairs and Equal Opportunities. Neither the European Commission nor any person acting on its behalf is responsible for the use which might be made of the information in this publication.
Table of Contents Members of the European Network of Legal Experts iii in the Field of Gender Equality
Executive Summary Dagmar Schiek
1. Introduction 1
2. Background 3
2.1. The notion of multiple discrimination 3
2.2. The intersectionality debate and its relevance for (EU) legal discourse 4
2.3. Reflections of these developments in EU law 6
a) General problems of EU equality law and multiple discrimination 6
b) ECJ case law 7
c) Community legislation, Council and Commission documents 9
d) Planned legislation 9
2.4. Preliminary assessment from a gender perspective 11
3. Main findings of national reports
Susanne Burri, Utrecht University, the Netherlands
Hanneke van Eijken, Utrecht University, the Netherlands
Sacha Prechal, Utrecht University, the Netherlands Christopher McCrudden, Oxford University, the United Kingdom Hélène Masse-Dessen, Barrister at the Conseil d’Etat and Cour de Cassation, France Susanne Burri, Utrecht University, the Netherlands
Anna Sporrer (Austria), Attorney at law Jean Jacqmain (Belgium), Free University of Brussels, Faculty of Law Genoveva Tisheva (Bulgaria), Bulgarian Gender Research Foundation Evangelia Lia Eftstratiou-Georgiades (Cyprus), Advocate Kristina Koldinská (Czech Republic), Charles University, Faculty of Law Ruth Nielsen (Denmark), Copenhagen Business School, Law Department Anneli Albi (Estonia), University of Kent, Kent Law School Kevät Nousiainen (Finland) Helsinki University, Faculty of Law Sylvaine Laulom (France), University Jean Monnet, Saint-Etienne, Faculty of Law Beate Rudolf (Germany), Free University of Berlin, Department of Law Sophia Koukoulis-Spiliotopoulos (Greece), Attorney at law Csilla Kollonay Lehoczky (Hungary), Eötvös Loránd University, Department of Labour and Social Law Herdís Thorgeirsdóttir (Iceland), Bifrost University, Faculty of Law Frances Meenan (Ireland), Barrister, Four Courts, Law Library, Dublin Simonetta Renga (Italy), Ferrara University, Faculty of Economics Kristīne Dupate (Latvia), Practising lawyer Nicole Mathé (Liechtenstein), University of Vienna Tomas Davulis (Lithuania), Vilnius University, Faculty of Law Anik Raskin (Luxembourg), National Women’s Council of Luxembourg Peter G. Xuereb (Malta), University of Malta, Faculty of Law Rikki Holtmaat (the Netherlands), University of Leiden, Faculty of Law Helga Aune (Norway), University of Oslo, Faculty of Law Eleonora Zielinska (Poland), University of Warsaw, Faculty of Law and Administration Maria do Rosário Palma Ramalho (Portugal), University of Lisbon, Faculty of Law Roxana Teşiu (Romania), Independent legal advisor Zuzana Magurová (Slovakia), Slovak Academy of Sciences, Institute of State and Law Tanja Koderman Sever (Slovenia), Independent legal advisor Berta Valdes (Spain) University Castilla-La Mancha, Faculty of Law Ann Numhauser-Henning (Sweden), Lund University, Faculty of Law Aileen McColgan (the United Kingdom), King’s College London
Ad hoc experts:
Dagmar Schiek, University of Leeds, the United Kingdom Christa Tobler, University of Leiden, the Netherlands and University of Basel, Switzerland
1. Introduction Starting with legislative proposals in 1999,1 the European Union has created a body of legislation aimed at combating discrimination on the grounds of ethnic and racial origin, religion and belief, sexual orientation, disability and age.2 This body of law can be considered as an additional layer of European Union non-discrimination law, complementing the existing body of gender equality law3 as well as rules outlawing discrimination on grounds of nationality.4 The new non-discrimination directives referred to both bodies of legislation and case law. They clarified that they did not exclude discrimination based on nationality of Third Country Nationals, and their recitals mentioned gender discrimination, using the notion of multiple discrimination in order to connect the aims of the non-gender directives to the gender directives.
There were, of course, other connections to the gender directives, not least in the fact that the new legislation was modelled upon these directives, and also codified concepts as they had developed in ECJ case law (Schiek 2009: 3-5).
Complementing these legislative changes, the EU Commission established a policy to combat discrimination on grounds other than gender in addition to the existing gender equality policy. Both policy fields had (and still have) their own NGO structures, and also expert bodies financed by the Commission were (and still are) maintained as separate entities.5 From 2000, policy pressure rose to align EU gender equality law and the new fields of EU non-discrimination law. The main inconsistency was the difference in scope of protection between Directive 2000/43/EC and the then gender equality directives. The former, unlike the latter, applies in the field of education, social * The executive summary profited from the national reports and numerous individual comments made throughout and during the meeting of the network on 8th of May 2009, and in particular from annotations provided throughout by Aileen McColgan and comments by Hélène Masse. It was prepared by Dagmar Schiek, who is responsible for any remaining mistakes.
Proposal for a Council directive establishing a general framework for equal treatment in employment and occupation (COM(1999) 565 final), and proposal for a Council Directive implementing the principle of equal treatment between persons irrespective of racial or ethnic origin (COM(1999) 566 final). These proposals were accompanied by an action plan which inter alia provided funding for new NGOs at EU level (Proposal for a Council Decision establishing a Community action programme to combat discrimination (2001-2006) COM(1999) 567 final, see also the Communication accompanying all three proposals COM(1999) 564).
Council Directive 2000/43/EC implementing the principle of equal treatment between persons irrespective of racial or ethnic origin  OJ L 180/22 (Race Directive) and Council Directive 2000/78/EC establishing a general framework for equal treatment in employment and occupation  OJ L303/16. (Framework Directive).
See on the development of this body of law Burri & Prechal (2008).
Article 12 EC and the provisions on free movement of workers (Article 39 EC), freedom of establishment (Article 43 EC) and freedom to provide services (Article 49 EC) all contain a prohibition to discriminate on grounds of nationality.
See for more information on the separated Commission web pages for gender equality (http://ec.europa.eu/social/main.jsp?catId=418&langId=en) and non-discrimination related to the other grounds (http://ec.europa.eu/social/main.jsp?catId=423&langId=en).
Multiple Discrimination in EU Law 1 advantages, and provision of and access to goods and services, including housing. In 2004, Directive 2004/113/EC was adopted, which expands protection against gender discrimination to one of these fields, access to and the provision of goods and services. Directive 2004/113/EC had, however, a more limited scope of application even in this field.6 The ‘recasting’ of some gender directives into Directive 2006/54/EC7 was the provisional closure of the project ‘aligning gender equality law and the new non-discrimination law’.8 The question how to integrate factual overlap between these different policy fields was the remaining policy issue. Gender discrimination occurs not only as isolated form of discrimination, but also affects women who simultaneously are suffering from discrimination on grounds of their racial and ethnic origin, their age, their disability, their sexual orientation and their religion or belief. The reference in the recitals of Directives 2000/43/EC and 2000/78/EC to multiple discrimination provided a starting point for formulating new policy aims. In 2006, the European Commission commissioned a study on multiple discrimination. (European Commission 2007) This study was meant as an explorative beginning. Based on a review of existing literature as well as on interviews and focus groups with ‘stake holders’9 in 10 Member States, a ‘legal expert review’ (European Commission 2007: 20-1) on these 10 Member States and 3 non-Member States (the US, Canada, and Australia), the report recommended more research, awareness raising and new legislation to define the concept (European Commission 2007: 53-4). However, it did not cover all the Member States and the other states bound by the EU Non-Discrimination acquis and did not consider the gender dimension of multiple discrimination.
The European Commission therefore requested the European Network of Legal Experts in the Field of Gender Equality to provide a complementary report to cover not only 10, but 30 states, and to focus on legal problems related to gender equality and multiple discrimination. The mandate of this report is to highlight legal perspectives on discrimination against women based on grounds additional to their sex (multiple discrimination against women), and to make recommendations for further research or policy measures.
This executive summary will first outline the background for discussing multiple discrimination in the EU (2). It will briefly explain the notion of multiple discrimination that was used in the questionnaire for the national reports. This will be followed by an overview of the intersectionality debate and its use for legal strategies to further gender equality and to combat gender discrimination. Next, responses to the Directive 2000/43/EC defined its scope of application in relation to access to and the provision of goods and services in Article 2 as follows: ‘(…) this Directive shall apply to all persons, as regards both the public and private sectors, including public bodies, in relation to: (…) access to and supply of goods and services which are available to the public, including housing’. Directive 2004/113/EC by contrast contains a number of restrictions, defining its scope of application as follows (Article 2): ‘1. Within the limits of the powers conferred upon the Community, this Directive shall apply to all persons who provide goods and services, which are available to the public irrespective of the person concerned as regards both the public and private sectors, including public bodies, and which are offered outside the area of private and family life and the transactions carried out in this context. 2. This Directive does not prejudice the individual’s freedom to choose a contractual partner as long as an individual’s choice of contractual partner is not based on that person’s sex.’ Council Directive 2006/54/EC on the implementation of the principle of equal opportunities and equal treatment of men and women in matters of employment and occupation (recast)  OJ L 204/23.
See on the transposition of this directive Burri & Prechal (2009).
Page 13, the ‘stakeholders’ include governmental departments, national equality bodies as well as NGOs and social partner, the last two from European and national levels.
2 Multiple Discrimination in EU Law phenomenon of multiple discrimination against women in EU law will be analysed, starting with ECJ case law from before and after the enactment of Directive 2000/43/EC, and progressing towards analysis of legislation, including planned legislation. Against this background, the contributions of national experts, which form part II of the report, will be evaluated and analysed (3). Finally, recommendations for further research, legislation and policies will be outlined (4).
2.1. The notion of multiple discrimination As the following paragraphs will clarify, terminology resembles a mine field when discussing discrimination against women on grounds beyond their sex and gender.
The multiplication of grounds, as it happened in EU equality law and international law, always seems to be fraught with the danger of establishing a hierarchy between grounds. In the case of the EU, this hierarchy has been said to work to the detriment of gender equality (Verloo 2006: 215), and in general to have induced a less structural approach to addressing inequalities (Squires 2008:54). Accordingly, some authors seem to imply a connection between building this hierarchy and acknowledging intersectional realities (Squires 2008: 57). Amidst these divergent interests relating to discrimination on grounds of gender and other grounds, it seems important to choose terminology that does not imply any specific position from the outset.