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

AuthorAlexander Somek
Date01 September 1999
Published date01 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.
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,
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.
See, for instance, P. Craig & G. de Búrcia, EC Law. Text, Cases, and Materials (2d. ed. Oxford UP 1998),
at 364, 368.
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]).
04 Somek 5/3 3/8/99 2:10 pm Page 243
employment law
—Community law will also protect against discrimination on any
other ground, even if only in the form of a deferential rational basis test.
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.’
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.
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
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’.
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
See, for example, Case 75, 117/82, Razzouk and Beydoun v. Commission [1984] ECR 1509, paras.16–17.
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.
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.
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.
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.
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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