CASE LAW FROM EUROPE ON GENDER EQUALITY
Jonas Grimheden*
Paper for the Network Seminar on Gender and Law, Beijing, 26-27 September 2004, forming
part of the EU-China Human Rights Network.
Case law in Europe on any human rights issue increasingly concerns two systems, that of the
45-member strong Council of Europe certainly but also that of the European Union with its
now 25 member states. This paper elaborates case law on discrimination on the basis of sex
from the two systems’ courts: the European Court of Human Rights and the European Court
of Justice. This is done with the purpose of showing the development and status of equality in
Europe, both its strengths and weaknesses. Before discussing the case law I give an overview
of the relevant instruments and activities in the field and I conclude the paper with four
suggestions for areas of discussion and comparison between EU and China at this seminar.
What started out as one ‘peace project’ after the Second World War soon became two projects
with quite different agendas. The Council of Europe was the original organization for
European integration and took its initial steps in the late 1940’s. As is now well known
history, a core group of six countries decided to move ahead with integration in the field of
essential production commodities (coal and steel and later also atomic energy) and a few
years later the Treaty of Rome (1957) was adopted that founded the European Communities
(EC (originally EEC)), that later (1993) expanded into the European Union (EU). The Council
of Europe remained a separate entity however and developed its strong human rights and
democracy profile, in particular with the adoption of the European Convention on Human
Rights and Fundamental Freedoms in 1950 (1953). The EC on the other hand stressed
economic integration and had no direct fundamental rights guaranteed in its treaties.
The European Union
The original EC-treaties did not provide for human rights but the preamble of the Treaty of
Rome referred to the UN Charter. With the Single European Act (1986) democracy and
human rights were however introduced in the preamble. The instruments of the EC and later
the EU, as well as the case law of the European Court of Justice have increasingly come to
consider human rights. This is perhaps most evident in the recently approved ‘Draft Treaty
establishing a Constitution for Europe’ where the entire section II (out of three) consists of the
Charter of Fundamental Rights of the EU of 2000. The EU has also previously committed to
the European Convention on Human Rights and Fundamental Freedoms in treaty provisions
(TEC A 6§2) and when, or if the new Constitutional Treaty comes into force, the Union will
be enabled to also ratify the ECHR.1
The treaty basis for the development of case law on equality between men and women
when it comes to the European Court of Justice (ECJ, based in Luxembourg) are articles 2
and 3§2 TEC (article 119 in the original EEC treaty specified equal pay for men and women),
*
BA (in East and South-East Asian Studies/Chinese), LLB, LLM, LLD (from Lund University, Sweden), Senior
Researcher at the Raoul Wallenberg Institute of Human Rights, Sweden; in the Fall of 2004 visiting researcher at
the faculties of law of Niigata and Nagoya universities, and at the Institute of Comparative Law of Waseda
University, Japan. The author wishes to acknowledge financial support for the present research period from the
‘Thunberg Scholarship’ of The Swedish Foundation for International Cooperation in Research and Higher
Education (STINT).
1
The ECJ concluded some ten years ago (Opinion 2/94) that the EC could not accede to the ECHR, the new
Constitution is designed to make this possible.
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providing for gender equality as one of the tasks and equal treatment of men and women in
employment, including means such as positive discrimination (article 141). According to the
Treaty (article 13), the European Commission can also take initiatives to counter
discrimination inter alia based on sex.
A series of Directives has also been adopted by the Council in the field of nondiscrimination prodding members states to better legislate areas such as equal pay (75/117),
burden of proof in cases of discrimination based on sex (97/80), and equal treatment as
regards employment (rev 2002/73). Not only the European Council but also the Commission
and the Parliament have taken various decisions in order to promote non-discrimination based
on sex.2 An overall program with a large budget (about €100,000,000) is also running until
2006 aimed at combating discrimination through inter alia analyses, awareness raising, and
exchange of good practices.
The Draft European Constitutional Treaty is in article 23§2 drawing on article 141 of
the present treaty allowing for positive discrimination. Article 23§1 provides for equality
between men and women as in articles 2 and 3 of the present treaty but is also based on the
formulations of the revised European Social Charter (article 20) of the Council of Europe.3
Case Law
Most prominent in the EC development of human rights is the European Court of Justice (the
mandate is limited to the EC parts and does not extend to the EU as of yet). The first cases of
importance in the human rights development of the European Communities in the 60’s are
now classics.4
The case law of the ECJ developed from first covering basically the provision on equal
pay for men and women. As in the landmark case of Van Gend en Loos (1963) which opened
up for ‘direct effect’ generally of Community legislation, Defrenne II (43/75) stipulated that
also equal pay claims could be made directly before national courts.5 The court later
concluded that comparison to determine equal pay did not necessarily have to be
contemporaneously but claims could also be made in comparison with for example a
predecessor.6 The Court also excluded areas and comparison that did not fall within the ‘equal
pay’ provision: Equal employment conditions were not deemed to be included.7 The salary of
a psychotherapist was for instance not deemed comparable to that of a medical doctor since
the latter perform a wider range of duties.8 The concept of ‘pay’ in ‘equal pay’ has been
2
E.g., the Council promoted positive discrimination (affirmative action) in 1984 and adopted a resolution on the
images of men and women in media, the Commission established an Advisory Committee (82/43) and adopted a
Community Framework Strategy (2001-2005) aimed at among other things changing stereotypes through media
and sports, and the European Parliament has established a committee on women’s rights and equal opportunities
and commissioned various studies in the field.
3
For the sources of the Constitutional provisions, see
http://europa.eu.int/comm/justice_home/unit/charte/en/charter02.html
4
In Klöckner-Werke (1962) equality was pronounced by the Court, with Costa v ENEL (6/64) European
Community law was ruled supreme over national law, Stauder (26/69) declaring human rights as forming part
thereof, and increasingly more detailed references to various aspects of human rights law and the relationship
between national constitutional fundamental rights in eg Nold 4/73, Frontini ‘Purché’ (1974), and Solange II
(Wünsche Handelsgesellschaft) (1987), see also Casagrande (1974) on human dignity.
5
See also Magorrian (246/96) back dating of equal pay is date of Defrenne II.
6
Macarthys (127/79).
7
Defrenne III (149/77).
8
Wiener Gebietskrankenkasse (309/97); other delimitations include self-employed can not necessarily claim
equal pay Allonby (256/01), equal application may cause unequal effects Keck (267 & 268/91), and objectively
quantifiable criterion based on physical effort (eg muscular in printing industry) to determine pay rate may be
permissible, Rummler (237/85).
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defined in particular related to pension where retirement pension directly governed by
legislation is not seen as pay.9 The equality concept has later on however come to include also
pension schemes.10
Recruitment has been a key area given the possibility available of positive
discrimination. The Court determined in the well-known case of Kalanke (450/93) that female
applicants with equal qualifications to men could be given priority.11 To appoint a female
candidate that was qualified but less so than a male applicant has consequently been excluded
from possible positive discrimination.12 The latter case (Abrahamsson and Anderson)
concerned the appointment of a professorship at a Swedish university and originated from an
appeal committee on higher education. A preliminary ruling was requested from the
Luxembourg court as to the scope of an EC Directive (76/207) and the consistency of
Swedish legislation. The Swedish law was found to be too broad in scope. The case neatly
summarizes the case law on positive discrimination recruitment by concluding that positive
“action” to promote women in the public sector where they are underrepresented is
compatible with European community law and can be used when male and female candidates
have equal or almost equal merits while a preference for the underrepresented sex with
sufficient but lower qualifications is not compatible with the principle of equal treatment.
Parenthood has been another area of concern for the Court. The Court obviously has
ruled out dismissal of pregnant women and has also extended protection to pregnant women
employed on temporary contract.13 A woman who at the time of recruitment is pregnant is not
obliged to inform the employer.14 Women can also be given extra benefits during maternity
without this being considered unequal given their situation being different from that of men.15
Women must also not be excluded from possibilities of promotion due to inability of handling
certain chores during the pregnancy.16 A number of other details have also been delimited by
the Court concerning parenthood.17 The Court has also delimited the scope of equal treatment
and what benefits may legitimately be given solely to pregnant women in some cases.18
Part time workers have been a special issue since women often constitute a large
majority of this group. The Court has concluded that part time workers can be paid less per
hour than full time workers since the difference is not based on sex. As long as the group
receiving less is not predominantly made up of women the difference is acceptable.19 Should
9
Defrenne I (80/70) while pre-retirement payment is, Defreyn (166/99).
Barber (262/88), see also eg German Pension Funds (379/99). Different pension ages for men and women
have however been deemed acceptable, Burton (19/81), and different calculations for pensions as a result can
follow, De Vriendt (377 & 384/96).
11
Reitterated in eg Marschall (409/95) and further delimited to areas where women are underrepresented in
Badeck et al (158/97).
12
Abrahamsson and Anderson v. Fogelqvist (407/98), see also see also Schneider (380/01).
13
Brown (394/96) and Melgar (438/99) respectively.
14
Tele Danmark (109/00).
15
Abdoulaye et al v Renault (218/98).
16
Silke (307/98).
17
Inter alia the right to vacation even though vacation coincides with maternity leave, Goméz (342/01), inclusion
of pay raise in maternity payment, Alabaster (147/02), and pro rata compensation of ‘Christmas bonus’ to
employee on parental leave, Lewen (333/97).
18
In one case an employee on "minor employment" after the birth of child was refused ‘Christmas bonus’ since
she was not covered by the general collective agreement for public-sector employees which was the basis for the
Bonus, Krüger (281/97). The Court has also concluded that workers who resign to take care of the children when
lack of child care can get lesser end-payment than someone who resigns for reasons important for the company,
Gruber (249/97).
19
Jenkins (96/80).
10
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the difference in pay have a disproportionate effect on women it is not permissible.20 Related
issues where the Court has ruled with the same effect are for instance ‘job-sharing’.21
Some professions have traditionally been reserved for men only, such as police and
military. The Court established relatively early that such exclusion can not be based on
grounds of demand by public opinion.22 Different recruitment criteria for men and women
disadvantageous for women have not been deemed possible.23 A blanket exclusion of women
from combat units of the armed forces has equally been prohibited while in certain cases
exceptions can be made.24 Claimed indirect discrimination through favorable treatment of men
completing military service is possible as a compensation for the service.25
Another issue has been the concept of ‘breadwinner’ where the man typically has been
seen by member states as the head of the family. Already in Sabbatini (1971) was this
pronounced by the court as an illegitimate basis for a rule.26 The issue has reoccurred in the
case law of the Court.27 Other areas that have been dealt with regarding equal treatment are for
instance Italian citizenship automatically being given to women upon marriage with Italian
men but not vice versa and there was no choice for the women.28 Prohibition of night work for
women has been another matter of consideration.29 A more recent case concerned retirement
funds being available only to wives of handicapped husbands but not vice versa.30 In recent
years discrimination on the basis of sex has also come to include transsexuals.31
The procedural aspects of discrimination on the basis of sex are of particular importance
and interest. The standard and burden of proof is essential for redressing inequality. The Court
decided in Danfoss (109/88) that if there is a non-transparent pay-structure and statistical
evidence show a difference in pay for men and women the burden of proof shifts to the
employer to justify the difference on other grounds than sex. Similar subsequent cases have
called for “significant statistics” suggesting discrimination.32 Also, in the case of indirect
discrimination, if criteria set to justify a level of pay give a significantly lower percentage of
women the higher pay, this is discrimination unless other factors can account for the result.33
Among the procedural aspects is also an effective implementation. The Court has called
for the guarantee of “real and effective” judicial protection with a “deterrent effect”.34 A right
to compensation has also been established.35 The Commission has however needed to take
countries before the Court for non-implementation or insufficiently so in a number of cases.36
Also on implementation, by way of example, the previously mentioned prohibition of night
work for women in some countries, the Commission brought France before the Court. The
Court ruled in 1997 that France was in infringement of the principle of equal treatment
20
Bilka-Kaufhaus GmBH (170/84), see also eg Schönheit & Becker (4 & 5/02) and Kording (100/95).
Hill (243/95).
22
Johnston v. Royal Ulster Constabulary (222/84)
23
Commission v France (318/86).
24
Kreil (285/98) and Sidar (273/97) respectively, where the latter exception concerned special forces used for
rapid deployment as assault troops.
25
Schnorbus (79/99).
26
The UN Human Rights Committee dealt similarly with the Communication Zwann-de Vries (182/1984)
27
See e.g. Commission v Luxembourg (58/81)
28
Airola (1975)
29
Commission v France (197/96), see also 345/89, 312/86, 207/96.
30
Mouflin (206/00).
31
Grant (249/96), and subsequent cases granting right to pension to transsexual partner and in its extent the right
to marry, KB (117/01), and transsexuality as an unjustified ground for dismissal P (13/94).
32
Enderby (127/92 ).
33
R (167/97).
34
Von Colson (14/83), see also e.g. Coote v Granada Hospitality (185/97).
35
Marschall (271/91), see also Draehmpaehl (180/95).
36
See e.g. Commission v Italy (207/96), v UK (165/82), v Denmark (143/83), regarding failure to mention ‘work
of equal value’ with regards to the principle of equal pay, v Germany (248/83), and v Greece (457/98).
21
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through this legislative (Article L-213-1 of the French Labour Code) prohibition on night
work for women but not for men and despite reminders, the French authorities had not given
the Commission any timetable for amending their relevant legislation in order to bring it in
line with Community law. The Commission therefore requested the ECJ to impose a daily
fine of €142,425 for each day of non-compliance.37
Follow-up
On recommendation by the Parliament the Commission established a network of independent
experts to assess human rights in the member states. So far annual reports have been
submitted twice (2003 and 2004) by these experts and a synthesized version for the whole
Union is also available.38 The reports list those countries who have not yet acceded to the
relevant UN, ILO and CoE treaties, reservations made by various member states are
highlighted, and positive and negative aspects are stressed. These reports are therefore of
some value as exemplifying good practices and indeed bad such. Among the areas of concern
when it comes to discrimination on the basis of sex in EU member states are the remaining
remuneration gap between men and women (in all countries), the risk of being ‘punished’ by
the employer if complaining of discrimination (Belgium), slow implementation of relevant
legislation (Estonia), lesser protection through collective agreements for part-time workers
(The Netherlands), cost of childcare preventing women from seeking employment (Ireland
and Austria), and low representation of women in politics (Slovak Republic). Among the
positive aspects highlighted are the introduction of systematic gender impact analysis of
legislation adopted (Spain), the introduction of a constitutional basis for affirmative action
(Italy), a national action plan for the advancement of women (Poland), and removal of
barriers for women to enter special professions (Greece).
The Council of Europe
The case-law of in particular the European Court of Human Rights, based in Strasbourg,
France, certainly remains the key human rights adjudicator and its case law has served as
basis for decisions by the European Court of Justice on human rights issues.39 The European
Court of Human Rights is also significant in other ways: It has been deemed a ‘world court’
by virtue of having its case law cited also by other prominent international courts and many
national courts. The international criminal tribunals for Rwanda and former Yugoslavia have
relied on case law from Strasbourg.40 National supreme courts, for example in Canada, South
Africa, and India have relied on the jurisprudence of the ECtHR as well.41
The Council of Europe envisages equality on the grounds of sex as “an equal visibility,
empowerment and participation of both sexes in all spheres of public and private life.”42 A
37
Commission v France (197/96).
See http://europa.eu.int/comm/justice_home/cfr_cdf/index_en.htm#
39
See e.g. Baustahlgewebe Gmbh (185/95) on fair and public hearing by independent and impartial court, see
also Dorsch Consult Gmbh (54/96)
40
See e.g. Čelebići (IT-96-21-T) of 4 September 1998; Kanyabashi (ICTR-96-15-A) of 3 June 1999. Note also
the Special Court of Sierra Leone where the Appeals Chamber shall be guided by the case law of the Appeals
Chamber of the ICTY and ICTR, as stipulated in article 20§3 of the Statute, www.sierraleone.org/specialcourtstatute.html; consider also the application of the ECHR by the Bosnia & Herzegovina
Human Rights Chamber.
41
See e.g. Anne Marie Slaughter, 2000, pp. 1109-1110; see also Lauri Lehtimaja and Matti Pellonpää, 1999, p.
227; the case law of the ECtHR also show many parallels with the jurisprudence of the United Nations Human
Rights Committee and both these adjudicative organs make use of each others findings.
42
www.coe.int/t/e/Human_Rights/Equality/
38
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special inter-governmental body has been established within the Council of Europe with the
sole purpose of promoting equality between men and women: the Steering Committee for
Equality (SCE). It is mandated to in particular examine, promote, analyze, evaluate national
practice, and propose measures. The Committee of Ministers has also adopted a
Recommendation calling for gender mainstreaming in both the private and public sectors.43
In the more strictly legal sphere the European Social Charter includes a number of relevant
rights such as equal remuneration, but also special protection of mothers. The Protocol of
1988 (into force 1992) also specifies in the first article the right to equal opportunities and
especially in employment and careers. The revised Social Charter includes a nondiscrimination clause on a variety of grounds including sex (article 20).
The European Committee of Social Rights is responsible for monitoring the
implementation of the state parties conformity with the Charter. On Sweden’s performance
the Committee concluded in 2002 that the social security legislation entailed indirect
discrimination in so far as part-time workers - mainly women - working roughly less than
half-time were not covered by unemployment insurance. It noted that that this situation,
which is not in conformity with Article 20 of the Revised Charter, was not modified during
the reference period as it should have been. The Committee furthermore stressed that there is
still segregation of the sexes in employment even though the government is taking appropriate
steps of remedy. The Committee on a more positive note also mention that the female
unemployment rate is below that of men (3,6% and 4,4% respectively) which is better than
the European average and that there is a steady decline in pay difference between men and
women.44
The European Convention on Human Rights prohibits in article 14 any "distinction"
based, inter alia, on grounds of sex, in relation to the rights protected under the Convention
and through Protocol No. 7 to the Convention the principle of equality between spouses as to
their rights and responsibilities in marriage were added in article 5.45 Protocol No. 12 of 2000,
not yet in force, also include discrimination on grounds such as sex in this general prohibition
of discrimination.46
Case-Law
The Strasbourg Court has many parallel cases to those of the Luxembourg Court. Some cases
have also been concerned with discrimination of men but they reflect a perception of women
as more dependent. Foreign men had in UK greater difficulties in joining legally residing
wives or fiancées than foreign women.47 In Switzerland men could not take their wives family
name while vice versa was possible.48 Childless women over the age of 45 were not required
to pay into a social fund while men were.49 In one case the government had cancelled a
disability pension of a woman upon becoming mother since assumed she was then a house
wife.50 Also the Strasbourg Court has dealt with pensions. The Dutch government argued that
at the time the majority of the ‘breadwinners’ and that this justified different levels of
pensions but the Court concluded a violation.51
43
Recommendation No. R (98) 14 of the Committee of Ministers.
Report of the Committee on Social Rights, 2002, p. 200 et seq.
45
Of 1984, entered into force 1 November 1998.
46
Needs 10 ratifications, at present 6 ratifications and 5 signature.
47
Abdulaziz et al v. UK (1985).
48
Burghartz v Switzerland (1994).
49
Van Raalte v The Netherlands (1997).
50
Schuler-Zraggen v Switzerland (1993).
51
Wessels-Bergervoet v The Netherlands (2002), see above and also the Human Rights Committee, Zwann-de
Vries (182/1984).
44
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The Court has also accepted differences in treatment between men and women such as
parental leave only for mothers while a common European right to parental leave for both
men and women could not be established and it consequently fell within the magic ‘margin of
appreciation’ of the member states.52 Cases show that the Court is careful to only conclude a
violation when it really concerns a difference between men and women and not only an issue
related to women.53 Also transsexuals have been at issue but the Court relied on the right to
family under article 8 even though three dissents suggested it should also be treated as
discrimination under article 14.54
The European Experience: Crucial Issues
Even though with a solid legal basis and the various promotional activities for nondiscrimination on the basis of sex on the European level – and certainly at the national level
as well, the case law show the extent and gravity of the lingering problem.55 The scope
moreover, of issues that come before the court, ranging from pay to maternity matters to
barriers in special professions is indeed wide. A number of issues appear as of especial
importance in the European experience.
Firstly, legislation, domestic and or international, on a general level is not sufficient.
Action need to be taken on many levels and in many ways. Sweden introduced in 1992 with
an upgrade of the relevant legislation from 1980 a monitoring system of the legislation itself.
Most prominently an Equal Opportunities Ombudsman (EOO) was set up as an independent
agency. The experience from this process is indeed positive. Criticism of inequality between
men and women in the public or private sector attracts high media attention and through such
‘name-and-shame’ the impact is considerable. The EOO can also request fines (typically
€25,000) on agencies or companies that do discriminate or that do not promote quality
sufficiently by adopting the required gender policy (if more than ten employees) or for not
providing disaggregated statistics on pay. Still, there are great difficulties for the EOO to
prove discrimination and many cases that are brought to court end in settlements or are
plainly lost.56
Among prominent cases is the comparison of salary of midwifes with that of clinical
technicians. The salary for both groups was decided through collective agreements between
employer and employees’ unions on the basis of central agreements. The work is similar but
the Swedish courts concluded that the market require higher salaries for technicians. The
European Court of Justice came to the same conclusion.57 It is indeed important to assure real
and effective implementation (with due compensation) even though this is difficult in practice
but various methods must be considered.
Effective implementation at the national level is therefore closely related to a second
issue, that of evidence at both national and international levels of adjudication. The burden of
52
Petrovic v Austria (1998), one of several dissents referred extensively to the inability of the EC (as of yet) to
formulate a standard in the area. Also earlier the Court had concluded that no violation had occurred when the
government was able to motivate the difference, Rasmussen v Denmark (1984).
53
See e.g. Fogarty v UK (2001) and Willis v UK (2002).
54
X, Y and Z v UK (1997).
55
For a comparison with China, see the interesting List of Issues by the UN Committee on Economic, Social and
Cultural Rights in preparation for the State Report, 7 June 2004, especially on article 3: Equal rights for men and
women, which list among many issues the need for sex-disaggregated statistics on pay and also on managerial
positions in government. It calls for information on activities to address the representative imbalance in
government, legislative bodies, and the judiciary. The List also follows up CEDAW’s concern over
disproportionate illiteracy among women, especially in rural and remote areas and women of ethnic and religious
minorities.
56
www.jamombud.se
57
236/98, see also Brunnhofer (381/99) on equal pay for equal work not necessarily equal because of label/title.
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proof in the European experience shifts, as discussed, in cases of alleged discrimination
supported by statistics, so that the employer have to show non-discrimination. The existence
of disaggregated statistics on men and women in both the private and public spheres are
therefore essential.
A third element of the European experience are the promotional activities, in particular
positive discrimination (aka affirmative action) with due regard to maintaining the same
qualification requirements so as to not give the impression of less qualified women. Also, the
role model of the public sphere is crucial. That the government assures a reasonably wellbalanced composition of men and women in areas within their powers is a basic tool. To also
promote such balance, or if needed require it through legislation, in the private sector may
follow consequently. By way of example, insurance policies offered by Swedish companies
on injuries received due to violence exclude damages received by someone you live with –
mainly women suffers from this (official authority covers costs however). Moreover,
education and awareness raising at all levels and in all areas, from kindergarten to university
and from the judiciary to company executives must also be assured. The Faculty of Law at
Lund University required me once to revise the list of literature for a course since no woman
were among the authors. To require a ‘gender impact’ on government studies as done in some
countries may also be an avenue. The value of equality between men and women can in this
way be reinforced.
The fourth and last suggestion from the European experience seems to stress the need
for international scrutiny of general legal status and practice on non-discrimination and well
as importantly scrutiny of individual cases. Domestic courts, with the various appeals
available, still are not resolving all the issues in the member states, as is evident from the
many cases cited above.