A Constitution for Antidiscrimination: Exploring the Vanguard Moment of Community Law

• Author: Alexander Somek
• Date: 01 September 1999
• DOI: http://doi.org/10.1111/1468-0386.00082
• Published date: 01 September 1999

A Constitution for Antidiscrimination:

Exploring the Vanguard Moment of

Community Law

Alexander Somek*

Abstract: It is a commonplace that ‘non-discrimination’ is a fundamental principle of

Community Law. If the principle is taken to express a broader commitment to

equality, however, there appears to be something quite unusual about it. When

compared with the standards set by modern constitutional law, the commitment to

equality is, at least with respect to Member State action, less extensive; in the context

of indirect gender discrimination, however, the principle acquires remarkable scope.

Although this ‘vanguard moment’ of Community Law is tacitly acknowledged in the

practice of the ECJ, it is, at the same time, subdued; the resources of the principle

might be tapped, however, by moving toward a constitution for antidiscrimination. The

article explores both the philosophical presuppositions and the institutional context of

what could become a constitutionalisation of antidiscrimination at the level of

Community Law.

I On Generality

There is something disturbing about the belief that, at least in the format of a non-

discrimination principle, equality is a general principle of Community Law.

1

It is the

elusiveness of the supposed generality that gives the subject matter a slightly para-

doxical ring. On the one hand, there can be no doubt that strong principles of non-

discrimination are binding on the Community and the Member States within the

scope of the application of the Treaty; on the other, doubts remain about how far the

commitment to non-discrimination extends. Whereas it is clear that Community law

protects against discrimination on the ground of nationality (Articles 6 [now 12], 48

[now 39], 52 [now 43], 59–60 [now 49–50]), sex (Articles 118, 119 [now 137, 141)] and

in other instances which are specif‌ied by the Treaty,

2

it remains to be seen whether—

outside of the realm of the Community law proper, such as the Community’s own

European Law Journal, Vol. 5, No. 3, September 1999, pp. 243–271

© Blackwell Publishers Ltd. 1999, 108 Cowley Road, Oxford OX4 1JF, UK

and 350 Main Street, Malden, MA 02148, USA

*University of Vienna. I would like to thank Elisabeth Holzleithner, Herlinde Pauer-Studer and Stanley L.

Paulson for helpful comments on earlier drafts of this article.

1

See, for instance, P. Craig & G. de Búrcia, EC Law. Text, Cases, and Materials (2d. ed. Oxford UP 1998),

at 364, 368.

2

One may think of the non-discrimination between producers and consumers in the f‌ield of agriculture

(Art. 40(3) [now 34(2)]) and the prohibition to impose taxes that discriminate between domestic products

and products imported from other Member States (Art. 95 [now 90]).

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employment law

3

—Community law will also protect against discrimination on any

other ground, even if only in the form of a deferential rational basis test.

4

The practice of the Court, to be sure, has given rise to high hopes, what with dicta

to the effect that, for example, the principle of equal pay is an embodiment of ‘the

general principle of non-discrimination [. . .] in specif‌ic form.’

5

These high hopes were

subsequently dissipated in the Grant case, in which the Court explicitly refused to

extend the protection against discrimination on the ground of sex, narrowly

understood, to unequal treatment on the ground of sexual orientation.

6

According to

Barnard, the Court’s practice thus far amounts to restricting the application of the

general principle of non-discrimination to Community acts proper by not making it

enforceable, in its general form, against acts of Member States and private parties in

Courts.

7

This may not be the f‌inal word. In the eyes of at least some observers, ‘it

seems increasingly as though a wider principle of equality and non-discrimination is

being recognised as part of the general principles of Community law’.

8

Doubts as to the generality of the equality principle vis-à-vis Member States’ acts

have not only not been resolved but, indeed, have been aggravated by the Amsterdam

Treaty. The list of prohibited grounds has been extended by the insertion of Article 6a

(now 13), which confers the power on the Council—acting unanimously on a proposal

from the Commission and after consulting the European Parliament—to take

‘appropriate action to combat discrimination based on sex, racial or ethnic origin,

religion or belief, age or sexual orientation.’ Even though the sweep of this expanded

list of prohibited grounds might suggest that the grounds mentioned are examples of a

European Law Journal Volume 5

244 © Blackwell Publishers Ltd. 1999

3

See, for example, Case 75, 117/82, Razzouk and Beydoun v. Commission [1984] ECR 1509, paras.16–17.

4

For reconstructions of this type of review, see Michelman, ‘Politics and Values or What’s Really Wrong

with Rationality Review,’ (1979) 13 Creighton Law Review 487–511; Bennett, ‘‘Mere’ Rationality in

Constitutional Law: Judicial Review and Democratic Theory,’ (1979) 67 California Law Review

1049–1103; Sunstein, ‘Naked Preferences and the Constitution,’ (1984) 84 Columbia Law Review

1689–1732; for a pointed critique, see R. Nagel, ‘Legislative Purpose, Rationality, and equal protection,’

(1972) 82 Yale Law Journal, 123–154.

5

See Case C-132/92 Roberts v. Birds Eye Walls [1993] ECR I-5579. In P v. S the Court declared that

Directive 76/207 on the equal treatment of men and women in employment was an expression of the

principle of equality in a special f‌ield and that this principle is to be counted among the fundamental

principles of Community Law. See Case C 13/94, P v. S and Cornwall County Council [1996] ECR I-2143.

On other occasions, the Court has stated that equal treatment of men and women is a fundamental

principle of Community law. See Case C-149/77, Defrenne v. Sabena (III) [1978] ECR 1356.

6

See Case C-249/96, Grant v. South-West Trains Ltd para. 43–47. It should be noted that in P v. S, loc cit n

5, para. 21, the Court was at pains to underscore that the adverse treatment of an employee who has had

her sex changed was tantamount to discrimination on the ground of sex and did, therefore, fall

comfortably within the ambit of Article 119 (now 141). Clearly, there is a sound reason for this position,

as explained by the Court in Grant, for, otherwise, the respect for fundamental rights could have the effect

of (or may become the pretence for) expanding Treaty provisions beyond the scope of the Community’s

jurisdiction. After all, the Court’s reluctance to review measures taken by Member States on broader

equal protection grounds does not preclude such review at Member State level. I cannot explore the

question here of whether the stance adopted by the Court might not perhaps conf‌lict with the type of

review established by Case C-260/89, Elliniki Radiophonia Tileorassi AE v. Dimotitki Etairia Pliroforissis

and Sotirios Kouvelas [1991] ECR I-2925.

7

See Barnard, ‘The Principle of Equality in the Community Context: P, Grant, Kalanke and Marschall:

Four Uneasy Bedfellows?,’ (1998) 57 Cambridge Law Journal, 352–373 at 354–355, 372.

8

P. Craig & G. de Búrcia, op cit n 1, 366. Note also recent legislative advances in this areas, e.g., Directive

91/81/EC on Part-Time Work, with regard to the framework agreemenet on part-time work concluded by

UNICE, CEEP and the ETUC (OJ L14/9, clause 4).

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