An Assessment of the Recast of Community Equality Laws

• Date: 01 March 2007
• Author: Noreen Burrows,Muriel Robison
• Published date: 01 March 2007
• DOI: http://doi.org/10.1111/j.1468-0386.2007.00363.x

An Assessment of the Recast of

Community Equality Laws

Noreen Burrows and Muriel Robison*

Abstract: This article explores some of the issues arising from the decision taken in 2003

to ‘recast for modernisation’ the directives on equal treatment between men and women. It

examines the meaning and significance of the recast technique itself and considers the

rationale for applying the recast to certain, but not all, of the equality Directives. The

article attempts a first-level analysis of the main issues arising from the recast in terms of

the substance of Community gender discrimination law. It is also argued that the recast

has the potential to improve Community equality law and not just in terms of readability.

I Introduction

In this article we explore some of the issues arising from the decision taken in 2003

to ‘recast for modernisation’ the Directives on equal treatment between men and

women’.1We first examine the meaning and significance of the recast technique itself

before examining the rationale for applying recast to certain, but not all, of the equality

directives. The recast technique itself is problematic. It appears to provide an oppor-

tunity for both amendment and simplification of Community law. However, the origins

of the recast technique suggest that the scope for amendment may be limited and that

recast is not an appropriate tool for radical amendment of the law. The proposed recast

reflects this cautious approach to modernisation and simplification of Community

equality laws in that it does not reflect root-and-branch reform, but incremental

change. We attempt a first-level analysis of the main issues arising from the recast in

terms of the substance of Community gender discrimination law. We argue that the

major shortcoming of the recast is its limited scope. One of the major areas of confusion

in Community equality law is the absence of principled interpretation of the conflicting

provisions relating to maternity pay, equal pay, and equal treatment. Had the oppor-

tunity been taken to bring the Pregnant Workers Directive into the recast process then

some clarity could have been brought to these issues. However, we also argue that the

recast has the potential to improve Community equality law and not just in terms of

* Noreen Burrows is Jean Monnet Professor of European Law at the University of Glasgow; Muriel

Robison is Director of Legal Affairs Scotland at the Equal Opportunities Commission.

1COM(2003) 71 final 11.2.2003, Communication from the Commission to the Council, the European

Parliament, the European Economic and Social Committee and the Committee of the Regions updating

and simplifying the Community acquis, p. 27. Directive 2006/54/EC of the European Parliament and of the

Council 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 2006.

European Law Journal, Vol. 13, No. 2, March 2007, pp. 186–203.

© 2007 The Authors

Journal compilation © 2007 Blackwell Publishing Ltd, 9600 Garsington Road, Oxford, OX4 2DQ, UK

and 350 Main Street, Malden, MA 02148, USA

readability. We discuss the improvements brought about by the recast and suggest that

it may be the catalyst for revising some fundamental principles underlying Community

equality law. That revision is not there in the text but will arise as a result of it, if the

recast directive is interpreted in an imaginative way by the European Court of Justice

and by the national courts.

There are some clear benefits to be gained from the recast both in terms of readability

and accessibility and in terms of substance and we examine some of these benefits. For

example, we argue that the horizontal provisions in relation to positive action and

equality bodies are an improvement and that it has been valuable to incorporate some

of the principles enunciated by the Court of Justice such those relating to gender

reassignment. In our analysis we conclude that one of the most significant develop-

ments is likely to be the result of bringing the principles underlying equal pay into line

with those underlying the principle of equal treatment, most notably by introducing the

distinction between direct and indirect discrimination into the equal pay arena. This is

an invitation to the European Court and to legal academics and practitioners to think

differently about equal pay issues. Thus we argue that the recast directive should

advance both gender equality within the European Union and invigorate Community

law. However, it is clear that recasting the equality laws in the way proposed does not

go far enough to update and simplify all aspects of Community sex equality law, and

that problems remain. For example, an area in pressing need of reform and that is not

covered at all in the recast is the area of social security. For reasons of space we are

unable to pursue these issues.

II The Recast Technique

The term ‘recast’ as a term of legal art appears to originate in the 1994 Interinstitutional

Agreement on the accelerated working method for official codification of legislative

texts.2In that agreement, the institutions agree that where it is necessary to go beyond

straightforward codification and make substantive changes, the Commission may

choose to ‘recast its proposal’ or to submit a separate proposal for amendment, leaving

the codification proposal ‘on the table, and then, once the substantive change has been

adopted, incorporate it into the proposal for codification’. Later, in the conclusions of

the Helsinki European Council in December 1999, recast is defined as an ‘improved

codification’ procedure.3The recasting technique is defined in the Presidency Conclu-

sions as ‘using the opportunity offered by an amendment to a basic act to codify all of

it, subject to ensuring that the principles and spirit of the codification technique (i.e.

codification of texts as published without substantive amendment) are respected’.

Recast is not therefore an opportunity for root-and-branch reform of the law but an

opportunity to reshape existing law. Recast was discussed in the Council as one way to

ensure effectiveness of the operation of the legislative process in the context of an

enlarged Union, which means that it is a technique intended to clarify and simplify

existing legal rules.

The Council sought an inter-institutional agreement on the recast technique. In that

agreement recast is defined as ‘the adoption of a new legal act which incorporates in a

single text both the substantive amendments which it makes to an earlier act and the

2Interinstitutional Agreement of 20 December 1994 on an accelerated working method for official codifi-

cation of legislative texts OJ C 102/2 1996.

3Available at: <http://ue.eu.int/ueDocs/cms_Data/docs/pressData/en/ec/ACFA4C.htm>.

March 2007 Community Equality Laws

© 2007 The Authors 187

Journal compilation © 2007 Blackwell Publishing Ltd.