LAW IS NOT ENOUGH
BUT STILL IMPORTANT
Prof. Dr. Christa Tobler, LL.M.
Europa Institutes of the Universities of Leiden (Netherlands)
and Basel (Switzerland)
2nd ‚Equal is not enough‘ Conference.
Prof. Dr. Christa TOBLER, LL.M.
christa.tobler@unibas.ch
r.c.tobler@law.leidenuniv.nl
Prof.
Dr. Christa TOBLER, LL.M.,
Universities of Basel (Switzerland) and Leiden (The Netherlands)
Universities of Basel (Switzerland) and Leiden (The Netherlands)
http://www.europa.unibas.ch http://www.europainstituut.leidenuniv.nl
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Challenging differences and inequalities in contemporary societies
1-3 December 2010, Antwerp
Law describes and constructs an ideal world
• I.e. where the law provides that “there shall be no
discrimination”, that alone is sufficient to ensure that there
is in fact no discrimination.
• Much like the idea behind the ten commandments in the
bible, which in the original Hebrew language are
formulated as „apodiktisches Recht – unbedingte, ohne
Wenn und Aber gültige Forderungen“, i.e. it WILL be as
the commandments state.
• However:
Does not work in reality, which means that more is needed
- including in particular substantive details, enforcement
procedures, sanctions etc.
Prof. Dr. Christa TOBLER, LL.M., Universities of Basel (Switzerland) and Leiden (The Netherlands)
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Ideally: law by itself is enough
Law is not enough
– Content or meaning of the law as adopted by the EU legislator
(scope, rights, derogations; usefulness of the substantive rules in
order to achieve social engineering).
– Implementation of EU law in the Member States.
– Enforcement of EU law, both in the Member States and on the level
of the EU itself.
Prof. Dr. Christa TOBLER, LL.M., Universities of Basel (Switzerland) and Leiden (The Netherlands)
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Law may help … but may not be fully effective
• From the abstract:
”Law is not enough because the ultimate root causes of
discrimination and inequality are not of a legal nature. […]
Since law is not the ultimate root cause for discrimination, it
can also not be the ultimate remedy. Nevertheless, law may
play an important role in making discrimination and
inequality visible as well as in fighting it. However, in
practice the effect of non-discrimination law is often
deficient [...].”
• Some reasons (in relation to EU law):
In fact: law is not neutral
Negative and/or positive role
• E.g. gender („a constitutive element of social relationships
based on perceived differences between the sexes, and
gender [as] a primary way of signifying relationships of
power”; Scott, 1986).
• Law is not neutral:
– E.g. Smart (1992): „How does gender work in law and how does law
work to produce gender?“
– E.g. Binion (1995): „[…] questions about where the law fits within
women‘s experience, what is its role in perpetuating these gendered
systems, and how might law be a vehicle for change.“
Prof. Dr. Christa TOBLER, LL.M., Universities of Basel (Switzerland) and Leiden (The Netherlands)
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• Thus: the law may both be a cause for discrimination and a
means for addressing it.
Access to justice (UNDP)
Prof. Dr. Christa TOBLER, LL.M., Universities of Basel (Switzerland) and Leiden (The Netherlands)
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Fundamental elements of access to justice
Examples
– One ECJ case: enforcement of EU non-discrimination
law: Jonkman (2007), concerning equal pay for men and
women (which is a very old issue in EU law).
– One national case on the meaning of equality and
discrimination: the Austrian Public Toilets case (2010),
concerning sex equality in relation to services (which is
a comparatively new issue in EU law) - could such a
case be won before the ECJ?
Prof. Dr. Christa TOBLER, LL.M., Universities of Basel (Switzerland) and Leiden (The Netherlands)
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Two examples for purposes of illustration
• Reverse order of subject matters:
Enforcement first, and finding of discrimination
thereafter.
• Two examples:
Jonkman (1)
Prof. Dr. Christa TOBLER, LL.M., Universities of Basel (Switzerland) and Leiden (The Netherlands)
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Facts and issues
• The case concerns three former stewardesses of the Belgian
airline Sabena who claim retirement pensions. The claims are
directed to the National Pensions Office (NPO), they concern
statutory pensions.
• The NPO grants them a pension, subject to a single large
adjustment payment and interest of 10%.
• The former stewardesses go to courts in Belgium and argue
that this is discriminatory. They should receive a pension
calculated under the same rules as those applicable to male
cabin crew.
• The national court turns to the ECJ for a preliminary ruling on
the interpretation of EU sex equality law (Directive
79/7/EEC).
Jonkman (2)
Background
• This case - which arrived at the ECJ in 2006 - really goes
back to the 1960s ... !!!
• Compare the famous Defrenne cases (1971, 1976, 1978):
Prof. Dr. Christa TOBLER, LL.M., Universities of Basel (Switzerland) and Leiden (The Netherlands)
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– Ms Defrenne, a stewardess of Sabena, complained about sex
discrimination in employment.
– The issue:
The financial consequences of the fact that stewardesses were
dismissed at the age of 40 (different from men doing the same work
as cabin stewards who were allowed to continue working) in terms
of pension rights and pay.
– Background: Belgian law of the 1960s.
Jonkman (3)
„It is easy to understand that it is because of their looks that
women are chosen for the job of a stewardess on airplanes. The
recipients of such services normally expect an attractive person.
Attractiveness is something that men, generally speaking, do not
have. As it is tied to age, it is acceptable to fix an early retirement
age for women in this activity.“
Prof. Dr. Christa TOBLER, LL.M., Universities of Basel (Switzerland) and Leiden (The Netherlands)
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By way of comparison: Merino and de los Mazos (1984)
• For the thinking behind this type of rule (early dismissal of
stewardesses), compare the judgment in a Spanish case of
the mid 1980s.
• Same type of case: early dismissal of stewardesses.
• Spain: at that time not yet a Member State of the EEC. But:
it had labour law that prohibited sex discrimination.
• The court (employment tribunal) held that there was no sex
discrimination:
Jonkman (4)
Back to Defrenne: the history of the case
• Ms Defrenne went to Belgian courts several times.
• The case led to three references for a preliminary ruling of the
European Court of Justice. One judgment in particular became
a landmark: Defrenne II (1976).
• Outcome:
• Consequence:
Both the dismissal practice of Sabena as well as the relevant
pension rules had to be changed in order to be in line with EEC
(post-Lisbon: EU) law.
Prof. Dr. Christa TOBLER, LL.M., Universities of Basel (Switzerland) and Leiden (The Netherlands)
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– Such a case involves sex discrimination in relation to pay, prohibited by
Art. 119 of the EEC Treaty (post-Lisbon: Art. 157(1) TFEU).
– Even though it seems to address the Member States only, Ms Defrenne
can rely on this provision, even against her private employer (horizontal
direct effect).
Jonkman (5)
The Belgian pension rules
• Royal Decree of 10 January 1964:
– A special retirement pension scheme is introduced for the benefit of
civil aviation air crew, from which air hostesses were nevertheless
excluded.
– Reason: the dismissal of women at the age of 40, because of which
women could not complete a full career.
• Changes following Defrenne:
Prof. Dr. Christa TOBLER, LL.M., Universities of Basel (Switzerland) and Leiden (The Netherlands)
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– Royal Decree of 27 June 1980 finally integrates women into the
special scheme for civil aviation air crew.
– Royal Decree of 28 March 1984 introduces an adjustment for air
hostesses in respect of the period from 1 January 1964 to 31
December 1980 - but: annulled by the Conseil d’Etat.
– Royal Decree of 25 June 1997 aims to remedy the difference in
treatment between air hostesses and stewards during the period from
1 January 1964 to 31 December 1980.
Jonkman (5)
The Belgian adjustment rules of 1997
• Royal Decree of 25 June 1997 contains special adjustment
rules concerning air hostesses who had been employed as
such during the period from 1 January 1964 to 31
December 1980.
• They are now entitled to a retirement pension under the
same rules as those applicable to stewards, subject
however to two specific conditions:
Prof. Dr. Christa TOBLER, LL.M., Universities of Basel (Switzerland) and Leiden (The Netherlands)
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– A single payment of adjustment contributions (difference between
the contributions paid by the air hostesses during the period from
1 January 1964 to 31 December 1980 and the higher contributions
paid by the stewards during the same period.);
– Plus interest at the annual rate of 10%.
Jonkman (6)
Returning to Jonkman: the issue of enforcement
• Note: the rules at issue in Jonkman were adopted in order to
remedy the discrimination found in Defrenne in the 1970s.
• Accordingly: this is really an enforcement case.
• Enforcement requirements under EU law (Jonkman):
– When it is apparent from an ECJ judgment that national legislation is
incompatible with EU, „it is for the authorities of the Member State
concerned to take the general or particular measures necessary to ensure
that [EU] law is complied within that state“, i.e.:
– There must be a remedy not only for individual cases such as that of Ms
Defrenne (with “levelling up” effect) ...
– ... but also: the authorities must ensure that national law is changed so as to
comply with EU law as soon as possible and that the rights which individuals
derive from EU law are given full effect.
Prof. Dr. Christa TOBLER, LL.M., Universities of Basel (Switzerland) and Leiden (The Netherlands)
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– Further: any enforcement measure must be effective.
Jonkman (7)
– An adjustment payment and reasonable interest are fine, BUT:
– Requirement of a single adjustment payment:
Given the many years that passed, the amount of adjustment payment is
very large and may even surpass the amount of the annual pension. The
requirement of a single payment makes the adjustments excessively
difficult.
– Interest of 10%:
This exceeds the rate of inflation, i.e. the contributions paid by the new
members are higher than those of former members. “Therefore, far
from putting the air hostesses in the same position as the stewards, that
interest rate has allowed the unequal treatment of the air hostesses to
continue.“
Prof. Dr. Christa TOBLER, LL.M., Universities of Basel (Switzerland) and Leiden (The Netherlands)
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In Belgium, was there correct enforcement following
Defrenne?
• Remember: the applicants in Jonkman complained about
discrimination, even under the new law.
• ECJ judgment:
Jonkman (8)
All’s well that ends well - ?
• Not in such a case. Consider e.g.:
– The time aspect - the last aspect of the discriminatory rules of the
1960s was addressed in 1997 only (and then deficiently).
– The courage, time, effort and money it took Ms Defrenne to fight the
original discrimination.
– Idem for Ms Jonkman and her colleagues for the continued
discrimination on the level of enforcement: ECJ judgment of 2007 ...
– The many stewardesses who suffered from the system, including
those who may already have died and can no longer act.
Prof. Dr. Christa TOBLER, LL.M., Universities of Basel (Switzerland) and Leiden (The Netherlands)
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• Accordingly:
Jonkman is an illustrative case showing that “law is not
enough”.
Public toilets (1)
Prof. Dr. Christa TOBLER, LL.M., Universities of Basel (Switzerland) and Leiden (The Netherlands)
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Facts and issues
• Austrian MP Dr. X often travels by train for her work.
• During one particular trip, she uses the public restrooms at
the train station in Lienz and finds that women have to pay
(50 cents) whilst for men there are urinals free of charge.
• She complains to the Austrian Equality Body
(Gleichbehandlungskommission, GBK) and argues that
there is direct sex discrimination in relation to a service
due to different treatment of men and women with respect
to the same need.
• GBK Decision of 17 June 2010: there is no discrimination.
Public toilets (2)
Background (1)
• Long standing discussion on toilets and sex discrimination,
see e.g.:
– Edwards/McKie (1996), ‘Women’s public toilets. A Serious Issue
for the Body Politic’, The European Journal of Women’s Studies.
– The work of Mary Ann Case on “Toilet Inequities” (USA).
– The Economist (July 10th 2010), ‘Flushing away unfairness’.
Prof. Dr. Christa TOBLER, LL.M., Universities of Basel (Switzerland) and Leiden (The Netherlands)
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• More generally on the importance of good toilets, see e.g.
the work of the British Toilet Association and of the
American Restroom Association.
• Historical background for payments: a tax on urine (for
buying it), especially by the Roman emperor Vespasian
(“non olet”).
Public toilets (3)
Prof. Dr. Christa TOBLER, LL.M., Universities of Basel (Switzerland) and Leiden (The Netherlands)
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Background (2)
• Common situation: (free) urinals
(“vespasiennes”, “vespasienni”,
“vespasiene”) only for men
but not for women.
• However, there is also
the so-called She-pee
(see picture).
• In fact, some “Damenpissoiranlagen” also exist
in Austria (namely
at Vienna).
Public toilets (4)
Case raises issues on each level of the legal analysis
Compare also:
Tobler/Beglinger,
Essential EU Law in
Charts, 2nd edition,
2010, Chart 8/4,
www.eur-charts.eu
Prof. Dr. Christa TOBLER, LL.M., Universities of Basel (Switzerland) and Leiden (The Netherlands)
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Taken from:
Tobler, Limits and
potential of the
concept of indirect
discrimination
(2008).
Public toilets (5)
Scope: is there a service?
• Directive 2004/113/EC:
– Art. 3(1): “services, which are available to the public irrespective
of the person concerned as regards both the public and private
sectors, including public bodies, and which are offered outside the
area of private and family life and the transactions carried out in
this context.”
– Recital 11 in the preamble: “Services should be taken to be those
within the meaning of Article [57 TFEU].”
– Art. 57 TFEU: “normally provided for remuneration”.
– My personal opinion: no doubt that there is a service, since
women have to pay for using the toilets; compare Wall (2010).
– Problem of the pay element, since men (precisely!) do not have to
pay for the use of urinals.
– Finding: yes, “jedenfalls im Rahmen des von der Betroffenen
abgeschlossenen Beförderungsvertrags” (i.e. as part of the
transport contract, where both men and women have to pay).
Prof. Dr. Christa TOBLER, LL.M., Universities of Basel (Switzerland) and Leiden (The Netherlands)
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• Lengthy discussions in the GBK:
Public toilets (6)
Is there (prima facie) discrimination? (1)
• Directive 2004/113/EC:
Art. 2(a), definition of direct discrimination: “where one
person is treated less favourably, on grounds of sex, than
another is, has been or would be treated in a comparable
situation”.
• Therefore, a finding of direct sex discrimination requires:
– Different treatment of men and women ...
– ... in a comparable situation.
– [Plus: absence of justification – see later.]
• Here:
Prof. Dr. Christa TOBLER, LL.M., Universities of Basel (Switzerland) and Leiden (The Netherlands)
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– Different treatment: clear case.
– Comparable situation: very complex.
Public toilets (7)
Is there (prima facie) discrimination? (2)
• GBK finds no direct sex discrimination.
• Reasons:
– The services as such are different (a urinal is not the same as a closed
cabin with a toilet). According to the GBK, the law requires identical
services, rather than only comparable services.
– Men and women are not comparable:
Prof. Dr. Christa TOBLER, LL.M., Universities of Basel (Switzerland) and Leiden (The Netherlands)
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– The offer of identical services is not required where the situations are not
comparable, i.e. men and women are not comparable.
– E.g. healthcare services:
Differences between men and women in the provision of healthcare services, which
result from the physical differences between men and women, do not relate to
comparable situations and therefore, do not constitute discrimination.
– Here, there are physical differences between men and women:
“Ein Pissoir [ist] ausschliesslich zur Miktion in der Form bestimmt, die sich aus
den körperlichen Unterschieden zwischen Mann und Frau ergeben.”
Public toilets (8)
Is there (prima facie) discrimination? (3)
• Reasoning of the GBK leads to numerous questions.
• My personal questions:
– What needs to be compared? Could not the basic need of the people
be relevant? Compare Sturgeon (2009).
– Why must the services be identical rather than only comparable?
– Are the factual differences between men and women really relevant
for present purposes?
– And if so, is it really true that these differences make the offer of a
comparable service impossible? (Consider e.g. the She-pee.)
– What is the basis for assuming that the Directive does not require the
offer of identical services for identical needs? After all, the Directive
is about the “access to and supply of goods and services”.
– …
Prof. Dr. Christa TOBLER, LL.M., Universities of Basel (Switzerland) and Leiden (The Netherlands)
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– After all, remember the definition of the general equality principle, which is
based on comparability, rather than identity.
– Compare also e.g. Art. 110(1) TFEU on the taxation of goods.
Justification (1)
• Various arguments before the GBK (see following sheets).
• However, GKB does not deal with them, since it does not
arrive at a finding of (prima facie) discrimination.
• Relevant test, Art. 4(5) of Directive 2004/113/EC:
“This Directive shall not preclude differences in treatment, if
the provision of the goods and services exclusively or
primarily to members of one sex is justified by a legitimate
aim and the means of achieving that aim are appropriate and
necessary.“
• Note:
Objective justification even for direct discrimination (not
usually available under EU law).
Prof. Dr. Christa TOBLER, LL.M., Universities of Basel (Switzerland) and Leiden (The Netherlands)
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Public toilets (9)
Public toilets (10)
Justification (2)
• Argument 1 - urinals cost less (construction, cleaning,
maintenance):
– The easiest argument from a legal point of view.
– Under EU law, purely economic grounds can never serve as
justification.
• Argument 2 - urinals are able to resist vandalism:
– Public security, public order.
– Not explicitly mentioned in the directive (different from economic
law).
– Covered by Art. 4(5) of the Directive? Convincing? More than mere
assumptions on men? And if so, proportionate?
Prof. Dr. Christa TOBLER, LL.M., Universities of Basel (Switzerland) and Leiden (The Netherlands)
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• Argument 3 – urinals offer practically no possibility for
consuming drugs: same.
Public toilets (11)
Justification (3)
• Argument 4 - men are culturally differently socialised
(meaning: they more than women need an inducement not to
use just any space - protection of plants around the station
...): same.
• Argument 5 – urinals for women, if used, must still be placed
in separate cabins as they are not willing to use open spaces
and it cannot reasonably be expected from them: similar –
mere assumptions? Giving up too easily?
Prof. Dr. Christa TOBLER, LL.M., Universities of Basel (Switzerland) and Leiden (The Netherlands)
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• Further and overall:
Can there be any necessity if, in the meantime, there are train
stations in Austria where both men and women have to pay?
The outcome
• A case raising complex questions notably on comparability
(and objective justification).
• Core issue of equality law – brings us back to where we
used to be and from we started a long time ago: women are
allegedly not comparable to men, which allows (or even
calls for) different treatment … (historically e.g. in relation
to voting or marriage rights).
• Does law reach its limits in such cases? Is such a case still
judiciable? Or is this yet another example that law is not
enough? Might brave reasoning lead to a finding of
discrimination?
• There appear to be more questions than answers ...
Prof. Dr. Christa TOBLER, LL.M., Universities of Basel (Switzerland) and Leiden (The Netherlands)
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Public toilets (12)
Conclusion
Law is not enough … but still important
• Our starting point:
Law cannot be the ultimate remedy because law is not the
ultimate root cause of discrimination.
• What we found:
– Law itself my cause discrimination (Jonkman) and those who
adjudicate may not use the law to its fullest potential (Public toilets).
– Still, without the law there might be no means to address such
issues.
Thank you for your attention!
Prof. Dr. Christa TOBLER, LL.M., Universities of Basel (Switzerland) and Leiden (The Netherlands)
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• Therefore (at the very least): law should constantly be
improved and those who apply it need constant education.
• Even so, certain issues may remain difficult …