The State of Gender Equality Law in the European Union

AuthorAnnick Masselot
DOIhttp://doi.org/10.1111/j.1468-0386.2007.00361.x
Published date01 March 2007
Date01 March 2007
The State of Gender Equality Law in the
European Union
Annick Masselot*
Abstract: This article assesses critically the recent law and policy initiatives in European
Union gender equality. As a fundamental right, the principle of gender equality is to apply
in all areas of EU law. Its scope has been extended to the access to and supply of goods
and services and, according to the European Court of Justice, to the Third Pillar. Despite
efforts to render the principle visible and accessible, a number of provisions remain unclear
and contradictory. The contribution of external actors in this f‌ield is set to help safeguard-
ing and enhancing the Community gender equality acquis.
I Introduction
In the earlier years of Community law and until recently, the European Court of Justice
was the main and somewhat unique actors contributing to shaping Community sex
equality law, which was itself based on purely economic considerations. Although,
both the European Court of Justice and economic considerations are still relevant,
today, other factors also contribute to shape EU gender equality law. Such factors
include in particular the EU’s aspirations to human rights, sustainable development
commitments, and demographic considerations. On this basis, this paper aims to assess
critically some recent European Union law and policy initiatives in the f‌ield of gender
equality. In order to do so it is divided in three parts. Arguably, some of these
interesting developments have been marked by the expansion of the application of the
principle of equal treatment between men and women outside the workplace. This is
considered in the f‌irst part of the article. The second part is dedicated to the legislative
effort toward transparency and clarif‌ication. The third part is concerned with the
endeavours to involve alternative actors in the quest for gender equality.
II The Meaning of EU Gender Equality
A Equal Treatment Outside the Workplace: a Scope and a Concept
Originally, the competence of the EC in the f‌ield of gender equality, embodied in Article
119 of the Treaty of Rome (now Article 141 EC), was exclusively restricted to the scope
* Senior Lecturer in European Law at the University of Leeds Law School, Deputy Director of the Centre
for the Study of Law and Policy in Europe, and Marie Curie Fellow (2007–2010) at the National Centre
for Research on Europe (University of Canterbury, New Zealand). I am grateful to Francis Snyder,
Christine Boch, Tamara Hervey, and the participants at the workshop on ‘The State of Gender Equality
in the European Union’, Centre for the Study of Law and Policy in Europe, 21 November 2005, for their
helpful comments and suggestions on this article, though any errors remain my own.
European Law Journal, Vol. 13, No. 2, March 2007, pp. 152–168.
© 2007 The Author
Journal compilation © 2007 Blackwell Publishing Ltd, 9600 Garsington Road, Oxford, OX4 2DQ, UK
and 350 Main Street, Malden, MA 02148, USA
of employment law and social policy. The introduction of Article 13 EC in the Treaty
of Amsterdam changed this situation when, for the f‌irst time, competence was given to
the Community to take appropriate actions to combat discrimination based on gender
(racial or ethnic origin, religion or belief, disability, age or sexual orientation) outside
the f‌ield of employment.
The Council adopted very quickly two directives based on Article 13 EC. The Racial
Equality Directive 2000/43/EC1prohibits racial discrimination in and outside the work-
place2and the Employment Equality Directive 2000/78/EC3prohibits discrimination in
the workplace on the grounds of religion or belief, disability, age or sexual orientation.4
A Community Action Programme to combat discrimination 2001–20065was also
adopted with the particular objectives of evaluating the extent of discrimination in the
Union and the effectiveness of anti-discrimination measures. Yet, while sex equality
law is arguably fairly developed in the area of employment, an anti-discrimination law
on the ground of sex outside the workplace was not adopted until the end of 2004. For
some time, because of a hostile political context, it was even doubtful that this measure
could ever be adopted.6However, following a lengthy and arduous process, the Goods
and Services Directive 2004/113/EC (hereafter the Goods and Services Gender Direc-
tive),7was f‌inally adopted.8A quick assessment of the measure leads to the conclusion
that although this Directive goes beyond the area of employment and professional life,
it nonetheless remains limited in comparison with the Racial Equality Directive.
Although the obligation of equal treatment between men and women is extended to
areas outside the labour market, the Directive only applies to the access to and supply
of goods and services. The scope of the Goods and Services Gender Directive includes
access to premises that the public are permitted to enter, housing including accommo-
dation in hotels and rented accommodation, services of a profession or trade, including
banking, insurance, other f‌inancial services and transport. Essentially, these cover all
goods and services outside the workplace, which are not covered by any existing
1Council Directive 2000/43/EC of 29 June 2000 implementing the principle of equal treatment between
persons irrespective of racial or ethnic origin, OJ L 180/22 [2000].
2C. Brown, ‘The Race Directive: Towards Equality for All the People of Europe?’ (2002) 21 Yearbook of
EU Law 195; E. Guild, ‘The EC Directive on Race Discrimination: Surprises, Possibilities and Limita-
tions’ (2000) 29 Industrial Law Journal 416.
3Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment
in employment and occupation, OJ L 303/16 [2000].
4P. Skidmore, ‘European development—EC framework directive on equal treatment in employment:
towards a comprehensive community anti-discrimination policy?’, (2001) 30 Industrial Law Journal 126.
5Council Decision of 27 November 2000 establishing a Community action programme to combat dis-
crimination (2000/750/EC), OJ L 303/23 [2000].
6See A. Masselot, ‘The Future of Gender Equality Outside the Workplace’, in S. Millns and
M. Mateo Diaz (eds.) Gender Equality and the Future of the European Union (Palgrave, forthcoming
2007); E. Caracciolo Di Torella, ‘The Principle of Gender Equality, the Goods and Services Directive and
Insurance: A Conceptual Analysis’, (2006) 3 Maastricht Law Journal 339.
7Council Directive 2004/113/EC of 13 December 2004 implementing the principle of equal treatment
between men and women in the access to and supply of goods and services, OJ L 373/37 [2004]. This
Directive is to be implemented by the Member States on 21 December 2007.
8Although the actual legislative process only took over one year from the Commission’s proposal on
5 November 2003 to the adoption of the Directive by the Council on 13 December 2004, the drafting of
this legislation by the Commission had almost taken a year prior to the adoption of the proposal. A
working draft proposal was leaked to the public in the summer of 2003, leading to some industries voicing
their strong opposition. The Commission had then to re-draft a new proposal following consultation with
the industry in question. See generally A. Masselot, op. cit. note 6 supra.
March 2007 Gender Equality Law in the EU
© 2007 The Author 153
Journal compilation © 2007 Blackwell Publishing Ltd.

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