Marta Lasek

Extending the scope. Application of EU anti-discrimination directives as regards fundamental rights protection.
Table of contents
1. 2. 3. 4. 5. Introduction ..................................................................................................................................... 1 Achieving the goal - directives. ....................................................................................................... 3 EU anti-discrimination law.............................................................................................................. 4 Grounds and categories of discrimination. ...................................................................................... 6 Direct discrimination extension Roca lvarez judgement. ......................................................... 7 5.1. Proceedings before the Court. ...................................................................................................... 7 5.2. Roca lvarez judgements horizontal effect. ........................................................................... 9

5.3. (Non-) Implementation of Roca lvarez judgement. Spain and Poland. .................................. 10 6. Member States feedback amending directives - Association belge des Consommateurs Tests Achats judgement. ................................................................................................................................ 12 6.1. Proceedings before the Court. ................................................................................................... 13 6.2. Implementation of the judgement. .............................................................................................. 15 7. New categories of discrimination. Discrimination by association and by declaration. ................. 16 7.1. Discrimination by association. Coleman effect. ......................................................................... 17 7.2. Discrimination by declaration. Feryn case. ................................................................................ 19 8. 9. Conclusions. Towards European Constitutionalism. ..................................................................... 20 Literature and cases. ...................................................................................................................... 22 9.1. Literature. ................................................................................................................................... 22 9.2. Cases........................................................................................................................................... 22

1. Introduction
EU directives have proven to be a useful tool in the process of establishing the Internal Market of the European Union. In my opinion nevertheless, the impact of EU directives is far more interesting and what needs to be underlined from the very beginning - pivotal in the field of protection of fundamental rights. The aim of this paper is to scrutinise the impact of directives on enhancing the human rights protection in the European Union on the basis of EU anti-discrimination directives and related Court of Justice of the European Unions case-law.

As it has been already pointed out by academics on various occasions, the concept of the original European Communities relied purely upon the idea of economic integration which given Europes economic condition after the Second World War appeared to be the only possible solution in order to restore the devastations. While its traditional functions were focused on economic integration, the Union gradually
acquired a more universal nature and also was able to elaborate its own catalogue of individual rights and liberties1. The development of this catalogue of individual rights and liberties was instigated by the former European Court of Justice, initially in Costa v. ENEL2 (1964), Stauder3 (1969) and Internationale Handelsgesellschaft4 (1970) cases. The necessity of recognising individual rights on the Communitarian level was in fact a natural consequence of economic integration and an indispensible condition of exercising effectively the Common market freedoms. However, while economic integration is commonly regarded as an undisputed priority among the Member States, the fundamental rights question is deeply rooted in each countrys mentality and its governments political vision and thus, it has always been subject to a heated debate. As a result, the economic principles of the European Union are protected by a number of directly applicable provisions of the primary law (Treaties). As for individual rights, although their application has already been safeguarded to some extent by the Court of Justice of the EU, their enforcement on the level of law provisions was supposed to come into force thanks to the Charter of Fundamental Rights. The Charter was proclaimed in 2000 by the European Parliament, the Council and the Commission and since the entry into force of the Treaty of Lisbon in December 2009 has been acknowledged to have the full legal effect. However, as describes Niamh Nic Shuibhne, the Charter has been characterised since then as a non-binding exposition of binding rights5. Its significance has been weakened by an opt-out secured initially by the United Kingdom and Poland and later followed by the Czech

Lech Garlicki, Cooperation of courts: The role of supranational jurisdictions in Europe: http://www2.wpia.uw.edu.pl/694,European_Convention_on_Human_Rights_and_the_legal_system.html, p. 2. 2 C-6/64, 15/07/1964. 3 C-29/69, 12/10/1969. 4 C-11/70, 17/12/1979. 5 Niamh Nic Shuibhne, The reality of rights: from rhetoric to opt-out, European Law Review, 2009, 34(6), 815-816, p. 1.

Republic. As a result, even the Court of Justices jurisprudence shows its certain reservations towards the Charter of Fundamental Rights. As pointed out by Niamh Nic Shuibhne in the same publication, the Court of Justice did not refer to it in a judgment until 2006. The statement that there exists a certain deficiency in the EU primary law concerning the protection of fundamental rights therefore appears to be justified. That is why in the light of the above reasoning, EU secondary law dealing at least indirectly with the issue of fundamental rights plays a key role in supporting the human rights protection system in the scope of the European Union.

2. Achieving the goal - directives.

By virtue of Article 249 TEU, directives are to be implemented in a way that their required result will be attained. The manner of achieving this goal remains within the competences of the Member State to which the directive is addressed. The implementation might therefore be conducted by means of relevant executive resources, e.g. statutes, acts of parliament etc. At this point, it is vital to point out that the main addressee of norms included in directives are always the Member States and not individuals. Consequently, a Member States failure to apply a directive might lead to launching proceedings before the Court of Justice under the terms of articles 226-228 TEU against the State resulting in a penalty of fine. However, in the view of the Court of Justice of the European Union expressed in Van Duyn6 (1975) judgements operative part, directives are regarded as binding instruments of law and referring to obligations provided by a directive cannot be excluded. Thus, the Court granted direct effect to directives and in order to justify it adopted the so-called estoppel argument which according to Krzysztof Wjtowicz, should be considered to be the equivalent of the Latin nemo auditur turpitudinem suam allegans principle7. In Ratti8 (1979) case the Court of Justice explains that once the time limit for implementation of a directive into national legal order expires, Member States are forbidden to deny its direct effect.

6 7

C-41/74, 04/12/1974. Krzysztof Wjtowicz, The principles governing the application of Community law in the countries of the European Union, Zeszyty CEN, Zeszyt 8(2003), p. 44. 8 C-148/78, 05/04/1979.

Moreover, the European Court of Justice has entitled individuals to refer to directly applicable provisions before a national court. In case of directives, an individual application must fulfil the general criteria established in Van Gend en Loos9 (1963) judgement. It is therefore necessary for the provision to be firstly, clear and precise, secondly, unconditional and thirdly, capable of producing rights for individuals. In case of directives, individuals are enabled not only to defend themselves against the application of a domestic rule of law that does not comply with the directive, but they can also request a positive application of the directive in place of a domestic rule of law.

3. EU anti-discrimination law.
Having described briefly the application of directives and their from certain authors point of view limited and non-automatic effect 10 , I would like to focus on EU antidiscrimination law as one of the specific fields in which directives serve as a legal tool. As it has been already pointed out before, the main purpose of integration from the very beginning of the European Communities was the economic development through the free movement of goods, services, people and capital. The Handbook on European nondiscrimination law reads that: The original Treaty Establishing the European Economic Community (1957) contained a provision prohibiting discrimination on the basis of sex in the context of employment. This would prevent Member States gaining a competitive advantage over each other by offering lower rates of pay or less favourable conditions of work to women. Although this body of law evolved considerably to include areas such as pensions, pregnancy and statutory social security regimes, until 2000 non-discrimination law in the EU applied only to the context of employment and social security, and only covered the ground of sex.11 Only in 2000, two new directives covering discrimination on the basis of sexual orientation, religious belief, age and disability in the area of unemployment as well as racial or ethnic origin in the fields of unemployment but also access to welfare system, social security, goods and services were adopted. After such significant enlargement of the scope of

C-26/62, 05/02/1963. Krzysztof Wjtowicz, The principles.... 11 Handbook on European non-discrimination law, European Union Agency for Fundamental Rights, 2011, p. 14.
10

EU non-discrimination law, in 2004 the Gender Goods and Services Directive expanded the scope of gender discrimination protection to the field of access to goods and services. However, as the Handbook of European non-discrimination law correctly points out, protection on the grounds of sex does not quite match the scope of protection under the Racial Equality Directive since the Gender Social Security Directive guarantees equal treatment in relation to social security only and not to the broader welfare system, such as social protection and access to healthcare and education.12 The range of currently existing EU directives covering the issue of discrimination is included in the table below13: Equal pay for men and women Equal treatment for men and women as regards access to employment, vocational training and promotion, and working conditions Equal treatment for men and women in matters of social security 75/117/EEC 76/207/EEC 10 February 1975 9 February 1976 Amended by Directive 2002/73/EC on 23 September 2002 19 December 1978 11 December 1986

79/7/EEC

Equal treatment between men and women 86/613/EEC who are self-employed and on the protection of self-employed women during pregnancy and motherhood Safety and health at work of pregnant workers and workers who have recently given birth or are breastfeeding Parental leave Reversal of burden of proof in cases of discrimination based on sex 92/85/EEC

19 October 1992

96/34/EC 97/80/EC

3 June 1996 15 December 1997 15 December 1997 29 June 2000 27 November 2000

Framework Agreement on part-time work 97/81/EC Prohibition of discrimination on the grounds of race or ethnicity Equal treatment in employment 2000/43/EC 2000/78/EC

Equal treatment between men and women 2004/113/EC 13 December 2004 in the access to and supply of goods and services

12 13

Handbook on European... Table adapted from Heather MacRae, The EU as a Gender Equal Polity: Myths and Realities, Journal of Common Market Studies, 2010 Vol. 48, Number 1, pp. 155-174, p. 159.

Apart from currently existing and effective directives, the EU institutions are at the moment in the process of creating a new directive, known as the Horizontal Directive. Its aim is to extend protection on the grounds of sexual orientation, religious belief, disability and age in the field of access to goods and services.

4. Grounds and categories of discrimination.

As mentioned above, the EU anti-discrimination law has recognised six possible grounds of discrimination which are: sex, age, disability, racial or ethnic origin, religion or belief and sexual orientation. However, the European Court of Justices practice reveals numerous cases of what has been recently acknowledged as discrimination on multiple grounds, experienced by the most vulnerable, marginalised and disadvantaged individuals within European societies. Academics have therefore distinguished three main types of multiple discrimination which are firstly, discrimination on different grounds experienced on separate occasions, secondly, the so-called additive discrimination and thirdly, intersectional discrimination14. However, a detailed differentiation between the three kinds of multiple discrimination should be subject to a separate analysis and does not fall within the scope of this paper. Similarly to the grounds of discrimination, discrimination categories have also extended throughout years of the Court of Justice of the European Unions jurisprudence. Thus, among the traditional categories such as direct and indirect discrimination, the Court has distinguished discrimination by association and declaratory discrimination. Furthermore, even the traditional concepts of direct and indirect discrimination have evolved in the process of creative application of anti-discrimination law by the Court of Justice of the European Union. What is more, a recent tendency shows that EU non-discrimination law has been evolving also through changes imposed indirectly by the Member States. The process of application frequently reveals imperfections, which does not result from a wrongful implementation but from a wrongful provision in the original directive.
14

Gay Moon, Multiple Discrimination: Justice for the Whole Person, Roma Rights 2, 2009: Multiple Discrimination, 27/04/2010.

The main purpose of this paper is to present the implications of the above mentioned extension through an analysis of the recent non-discrimination case-law issued by the Court of Justice of the European Union.

5. Direct discrimination extension Roca lvarez judgement.

Direct discrimination has been defined in Article 2(2) of the Racial Equality Directive which reads that it is taken to occur where one person is treated less favourably than another is, has been or would be treated in a comparable situation. Difference of treatment therefore appears to be an indispensible condition for direct discrimination to occur. According to the Handbook of European non-discrimination law, Unfavourable treatment will be relevant to making a determination of discrimination where it is unfavourable by comparison to someone in a similar situation. A complaint about low pay is not a claim of discrimination unless it can be shown that the pay is lower than that of someone employed to perform a similar task by the same employer. Therefore a comparator is needed: that is, a person in materially similar circumstances, with the main difference between the two persons being the protected ground15. By means of example of a recent case dealing with direct discrimination on the grounds of sex, I would like to discuss the Court of Justice of the European Unions judgement issued on 30 September 2010 as a preliminary ruling in proceedings Pedro Manuel Roca lvarez v Sesa Start Espaa ETT SA (C104/09).

5.1. Proceedings before the Court.

To begin with, under Spanish law employment issues are subject to the Workers Statute (Estatuto de los trabajadores), as amended by Royal Legislative Decree 1/1995 of 24 March 1995. The statute applies to workers, by which Spanish law means persons who voluntarily offer their services in return for payment by another within an organisation and under the direction of a natural or legal person, known as the employer16. Article 37(4) of the Statute provides:

15 16

Handbook on European..., (...), p. 23. C-104/09, 30/09/2010.

Female workers shall be entitled to take one hour off work, which they may divide into two parts, in order to breastfeed a child under the age of nine months. The woman may, if she wishes, replace this entitlement with a half-hour reduction in her working day for the same purpose. This time off work may be taken by the mother or the father without distinction, provided that they are both employed. Consequently, given the fact that by virtue of the above provision fathers are equally entitled to claim time off, the term time off work for breastfeeding as noticed by Advocate General Juliane Kokott, is misleading17. Similarly, the Court of Justice in its judgement states that the evolution of the national legislation and its interpretation by the courts has little by little detached the granting of breastfeeding leave from the biological fact of breastfeeding precludes a finding that this measure ensures the protection of a womans biological condition following pregnancy. The applicant of the case, Mr Pedro Manuel Roca lvarez on 7 March 2005 addressed his employer, Sesa Start Espaa ETT SA with a request for time off under Article 37(4) of the Workers Statute. However, his claim was refused on the ground that the childs mother was selfemployed and according to a literal interpretation of the Statute, she was not personally entitled to time off work. Consequently, Mr Roca lvarez brought an action challenging his employers decision and since he was not successful at first instance, he launched an appeal to the High Court of Justice of Galicia (Tribunal Superior de Justicia de Galicia). In the course of proceedings, the High Court referred to the Court of Justice of the European Union for a preliminary ruling. The referring court inquired whether national law, namely Article 37(4) of the Workers Statute was in compliance with the principle of equal treatment of men and women as regards access to employment, vocational training and promotion and working conditions. The principle is included in Directive 76/207, amended by Directive 2002/73. Having examined Article 37(4)s compliance with the above directive, the Court of Justice states in the judgement that the Spanish provision does imply unequal treatment on the ground of sex with regards to working conditions. According to Advocate Generals opinion, the Workers Statute grants the right to a reduction in working time only to female workers; male workers, by contrast, are not independently entitled to a reduction in working time. They
17

C-104/09, Opinion of Advocate General , 06/05/2010.

have at best a derived entitlement inasmuch as they, as fathers, may also exercise the right concerned only if the respective mothers have an independent right. As a result, if the mother is self-employed and not entitled to take time off work to feed her baby, the father also has no such entitlement. Nevertheless, female employees have such an entitlement even if the infants father is self-employed. For the above reasons, the Courts conclusion reads that national legislation recognises only employed mothers but not employed fathers as holders of an individual right to paid time off work for the purpose of taking care of a child. Thus, it offends the principle of equal treatment within the meaning of Directive 76/207/EEC on the implementation of the principle of equal treatment for men and women as regards access to employment, vocational training and promotion, and working conditions. To conclude, the case of Mr Roca lvarez illustrates a certain evolution of EU antidiscrimination law on the ground of sex. As it has been indicated above, gender equality has been the first ground of protection recognised by the European Communities and protected by directives since 1970s. It seems clear that the original purpose of EU gender equality law was to ensure womens rights who at that time were frequently discriminated on the labour market. It is therefore likely that in 1976 when 76/207 Directive was adopted, no one would assume that its provisions might in the future serve as a weapon for men.

5.2.

Roca lvarez judgements horizontal effect.

Another interesting question, which has not been subject to the Court of Justices judgement but has been raised in Advocate Generals opinion, is the so-called horizontal effect of directives, confirmed in Roca lvarez decision. In the above mentioned Van Duyn case, the Court of Justice has confirmed vertical effect of directives, which means that individuals are under certain conditions entitled to invoke directives in proceedings against the Member States. Vertical effectiveness of directives against public bodies, often referred to as emanations of State, has been granted in Marshall18, decided by the former European Court of Justice in 1993. However, as the Court has consistently held in judgements such as Faccini Dori 19 (1994), a directive does not have horizontal effect, which means it cannot of itself impose obligations on private parties.
18 19

C-271/91, 02/08/1993. C-91/92, 14/07/1994.

In the view of previous jurisprudence, Roca lvarez should be regarded as a judgement producing direct horizontal effect since it deals with a conflict between an employee and a private employer. Advocate General draws attention to the question of horizontal effectiveness of directives making in her opinion the following statement: The Court held in two relatively recent decisions that it is for the national courts hearing disputes between individuals to set aside any provision of national law that is contrary to the principle of non-discrimination in respect of age. It remains to be seen whether the Court will extend such horizontal direct effect to other general legal principles such as the principle of non-discrimination in respect of sex. Above all, prior to any further development of that kind, it would be necessary to discuss the dogmatic foundations of that contested horizontal direct effect and its limits. Thus, the question of horizontal effect of directives remains unsolved at the moment. However, as noticed by Advocate General, it is contested only in terms of its dogmatic foundations since the Court of Justices latest jurisprudence has proven that horizontal effect of directives is admissible.

5.3. (Non-) Implementation of Roca lvarez judgement. Spain and Poland.

What in my opinion seems to be the most interesting aspect of Roca lvarez judgement are its implications on national legislation in the Member States. The European Court of Justice in its decision clearly provides that Article 37(4) of the Spanish Workers Statute constitutes an infringement of EU law stating that the measure at issue in the main proceedings establishes a difference on grounds of sex, within the meaning of Article 2(1) of Directive 76/207, as between mothers whose status is that of an employed person and fathers with the same status. It is important to note that Mr Roca lvarez made the request for time off to his employer in March 2005 when the period allowed for transposition of Directive 2002/73 amending Directive 76/207 has not yet expired (implementation was due to be completed by October 200520). Consequently, when Mr Roca lvarezs claim for breastfeeding leave was refused the Spanish Workers Statutes compliance with the Directive was not yet required and the existence of certain dubious provisions was to some extent justified.
20

C-104/09, Opinion of Advocate General, 06/05/2010.

10

Nevertheless, in April 2011 when this paper is being produced, the Spanish Workers Statute still contains the discriminatory, as stated by the Court of Justice, provision. After the deadline for transposition of Directive 2002/73, Article 37(4) was amended in 200721. However, the amendment did not refer to the provision questioned firstly by the High Court of Justice of Galicia and later by the Court of Justice of the European Union. According to the amended version of Article 37(4), instead of claiming the hour off work, female workers may, if they wish, shorten their working day by half an hour or accumulate their entitlement into whole days off on the terms laid down in the collective negotiation or in the agreement which they reach with their employer in accordance with the terms agreed in the collective negotiation.22. In the latest version of the Spanish Estatuto de los trabajadores, updated in 2010, Article 37(4) does not differ at all from the provision that has been decided by the Court of Justice of the European Union to breach a EU directive. As far as breastfeeding leaves are concerned, legislation similar to the Spanish one exists in other Member States of the European Union. By means of example, I would like to refer to the Polish Labour Code (Kodeks pracy), proclaimed in 1974 but amended on numerous occasions (the latest amendments came into force in January 2011). Provisions covering access to time off for the purpose of feeding infants are covered by Article 187(1) and 187(2). Article 187(1) states that a female worker breastfeeding a child has the right to two half-hour breaks per day, whereas a female worker breastfeeding more than one child has the right to two 45-minute long breaks. A female worker can also apply for a single break cumulating the time to which she is entitled during the two separate breaks23. Article 187(2) deprives a female worker who works shorter than 4 hours per day of the right to such a break and later deals with a break to which a female worker who works shorter than 6 hours per day is entitled. Apart from the above described provisions the Polish Labour Code does not contain any other reference to baby feeding time off that workers are enabled to apply for. Thus, the Polish equivalent of Spanish legislation, condemned by the Court of Justice to be
21 22

Basic Law 3/2007 of 22 March 2007, Opinion of Advocate General Kokott, C-104/09, 06/05/2010. C-104/09, Opinion of Advocate... 23 Ustawa z 26 czerwca 1974 r. - Kodeks pracy - working translation done by the author of this paper.

11

discriminatory, is even more unfavourable in terms of mens rights, as none of the Labour Codes provisions confers to fathers at least a secondary right to time off for baby feeding purposes. The latest amendments in Chapter 8 of the Polish Labour Code (Workers Rights as Regards Parenthood), which have come into force in January 2011, include changes enforced by Parental Leave Directive 96/34s transposition and therefore, improve fathers rights in terms of access to paternity leave. In my view, the Polish Labour Code might be considered as an example of a frequent practice in the field of transposition of EU directives by the Member States. The process of implementation in Poland is very often conducted in a hasty manner and its results leave a lot to be desired. On numerous occasions, provisions included in a directive are copied, mechanically translated and directly inserted into Polish statutes without any modification to the remaining provisions. Another serious problem is the fact that the Court of Justice of the European Unions jurisprudence is not reflected in national legislation. In my opinion, after Poland has acknowledged fathers right to parental leave, entitlement to time off for baby feeding purposes granted to men would not have been an extension subject to a heated political and social debate. Thus, it would have rather been regarded as a natural consequence of gender equality in a workplace if Roca lvarez judgement had been implemented into the Polish Labour Code. However, it was not.

6. Member States feedback amending directives - Association belge des Consommateurs Tests Achats judgement.
As outlined above, by virtue of Article 249 TEU directives serve as tools enforcing changes into national legislation of the Member States so that they would achieve a certain required goal. Once implemented through an adequate measure available in a Member States legal system, provisions of a EU directive included in acts of national law become regular sources of law in the Member State and their application falls within national jurisdiction. Therefore, the impact of EU directives on national laws, as described above, is undisputed. Nevertheless, Association belge des Consommateurs Tests Achats24, a recent judgement of the Court of Justice of the European Union delivered in March 2011 has proven
24

C-236/09, 01/03/2011.

12

to be an example of reverse effect by which the Member States indirectly amend EU secondary law by means of feedback after a directives implementation. The case refers to Directive 2004/113 implementing the principle of equal treatment between men and women in the access to and supply of goods and services. Among other issues the directive tackles gender equality in the calculation of premiums and benefits for the purposes of insurance and related financial services. Article 5(2) provided an exemption of the general prohibition of discriminatory treatment between men and women allowing Member States to permit proportionate differences in individuals premiums and benefits where the use of sex is a determining factor in the assessment of risk based on relevant and accurate actuarial and statistical data. The derogation established by Article 5(2) was of a purely practical nature as gender has always been considered as risk and pricing benchmarks in the field of insurance, in which the whole concept of risk assessing relies strongly upon statistics. For example, men have a lower life expectancy than women and consequently, have been given higher annuity payments based on their typical shorter claim periods.

6.1. Proceedings before the Court.

Belgian Law of 21 December 2007 which amended the Law of 10 May 2007 combating discrimination between men and women25 provided an insurance exemption in compliance with Article 5(2). Article 10 of the amended law read: 1. By way of derogation from Article 8, a direct proportionate distinction may be

drawn on the basis of gender for the purposes of calculating insurance premiums and benefits where sex is a determining factor in the assessment of risk on the basis of relevant and accurate actuarial and statistical data. That derogation shall apply only to life assurance contracts within the meaning of Article 97 of the Law of 25 June 1992 on non-marine insurance contracts. 2. With effect from 21 December 2007, costs related to pregnancy and maternity may not

under any circumstances continue to result in differences in insurance premiums and benefits.

25

Moniteur Belge of 31 December 2007, p. 66175; the Law of 21 December 2007.

13

3.

The Banking, Finance and Insurance Committee shall collect the actuarial and

statistical data referred to in paragraph 1, publish them by 20 June 2008, then publish updates every two years, and post them on its website. This data shall be updated every two years. In the light of the above provision, a Belgian Consumers Association (Association belge des Consommateurs Test-Achats ASBL) launched an action before the Belgian Constitutional Court (Cour constitutionnelle) for annulment of the Law of 21 December 2007 transposing Directive 2004/113 into Belgian law. The applicant claimed it to be contrary to the principle of equality between men and women. As a result, the Constitutional Court referred to the Court of Justice of the European Union asking whether Directive 2004/113 was in accordance with Article 6 TUE dealing with Human Rights protection and fundamental rights of the European Union. Having examined the application, the Court of Justice held that EU law, namely Directive 2004/113, may permit the derogation from the equal treatment of men and women to persist indefinitely. Consequently, Article 5(2) of the Directive providing the insurance derogation was decided in the verdict invalid from 21 December 2012. To cast light on the Courts reasoning it is vital to refer to Advocate General Juliane Kokotts opinion26. It clearly states that direct discrimination on the grounds of sex is justifiable only in limited circumstances and has to be carefully reasoned. What is more, EU institutions have to bear in mind that the Union legislature is by no means at liberty to allow arbitrary exceptions to the principle of equal treatment and thereby to undermine the prohibition against discrimination. However, according to Advocate General, the specific nature of insurance matters does not constitute a sufficient argument in order to justify derogation from the general principle of gender equality. Insurance services are described as ones with regard to which at the time when the contract is concluded, it is impossible to decide with certainty when and to what extent the insured person will have recourse to them. Advocate General states that although prognoses are indispensable in actuarial calculations of premiums and services in order to make that risk calculable, in view of social change and the accompanying loss of meaning of traditional role models, the effects of behavioural factors on a persons health and life expectancy can no
26

C-236/09, Opinion of Advocate General, 30/09/2010.

14

longer clearly be linked with his sex. Consequently, Advocate General claims that nowadays both men and women perform demanding and sometimes extremely stressful professional activities or practise potentially dangerous sports. In its judgement, the Court of Justice states that Article 5(2) of Directive 2004/113 constitutes an infringement of the Charter of Fundamental Rights, namely Article 21 providing a general prohibition of discrimination, as well as Article 23 dealing with gender equality, especially in the areas of employment, work and pay. The Courts reference to the Charter reflects a relatively recent tendency of EU institutions to enforce fundamental rights protection within the European Union. The trend has been visible after the Charter of Fundamental Rights became legally binding upon the entry into force of the Lisbon Treaty, which precedes the European Unions accession to the European Convention on Human Rights as its forty-eight contracting party.

6.2. Implementation of the judgement.

In my view, the most interesting aspect of Association belge des Consommateurs Tests Achats judgement and the modification which it has enforced on EU law is its further implementation by Member States. As the Court has held in the preliminary ruling, the general principle of equality between men and women in access to insurance services will not be subject to any derogations from 21 December 2012. Since all of the 27 European Unions Member States currently allow using sex as a risk-rating factor for products such as life assurance and annuities27, after the Court of Justices decision all of them are to take steps in order to eliminate any forms of inequality from insurance services. As pointed out by the EUs Justice Commissioner Viviane Reding, the insurance industry will certainly be affected by the ruling however, priority should be granted to fundamental rights protection which according to the Commissioner, are also becoming a matter of good business practices28. To conclude, Association belge des Consommateurs Tests Achats has proven to be a crucial judgement in which the Court of Justice of the

27

Sex Discrimination in Insurance Contracts: Statement by European Commission Vice-President Viviane Reding, the EUs Justice Commissioner, on the European Court of Justice's ruling in the Test-Achats case, 1 March 2011, http://europa.eu/rapid/pressReleasesAction.do?reference=MEMO/11/123&type=HTML.
28

Sex Discrimination in Insurance...

15

European Union underlines its position as a EU institution granting absolute priority to the rule of law. Furthermore, Association belge des Consommateurs Tests Achats also confirms the important role of national courts as institutions not only ensuring an effective application of EU law but in my opinion, also safeguarding fundamental principles of the European Union included in the Treaties and the Charter of Fundamental Rights. Questions of EU secondary laws compliance with primary law remain undoubtedly a Court of Justices exclusive competence and are therefore beyond national courts jurisdiction. Nevertheless, while dealing with Association belge des Consommateurs case the Belgian Constitutional Court encountered an inconsistency with EU primary law resulting not from national legislation implementing EU secondary law, but from EU secondary law itself. Consequently, a national court has the right to notify the Court of Justice whenever it encounters a conflict on the level of European provisions which affect application of law on a national level. As a result, even though a national court is not entitled to bring an action for annulment in case it considers a EU provision inconsistent with another EU provision, thanks to preliminary references it has a sort of indirect right to safeguard the EU legal systems cohesion.

7. New categories of discrimination. Discrimination by association and by declaration.

As mentioned at the beginning, the purpose of this paper is to outline a certain area of extension of EU non-discrimination law achieved through application of directives by the Court of Justice and national courts. This extension has also been achieved through development of new categories of discrimination. As for traditional categories, the concept of direct discrimination has been discussed above. As regards indirect discrimination, it has been defined in Racial Equality Directive 2000/43 as occurring when an apparently neutral provision, criterion or practice would put a certain group at a particular disadvantage compared with other persons on one of the protected grounds. Existence of a protected group according to the Handbook on European
16

non-discrimination law, is the feature in which indirect discrimination differs from direct discrimination in that it moves the focus away from differential treatment to look at differential effects.29 Moreover, a further development of the scope of protection against discriminatory practice has been achieved through concepts of discrimination by association and discrimination by declaration, which are only very briefly discussed below.

7.1. Discrimination by association. Coleman effect.

The concept of discrimination by association is inextricably linked with the case of Ms Sharon Coleman30, decided by the Court of Justice of the European Union in 2008. Ms Coleman was employed as a legal secretary for Attridge Law, a firm of solicitors in London from 2001 to 2005 when she accepted voluntary redundancy from her post. Meanwhile, in 2002 she gave birth to a disabled son whose condition required specialised and particular care. The boy was deaf and suffered from serious respiratory problems, including apnoeic attacks an involuntary halt to breathing31. As pointed out in the judgement, Ms Coleman was the childs primary carer. Having stopped working for Attridge Law, Ms Coleman brought an action before the London South Employment Tribunal alleging that she had been subject to unfair constructive dismissal. In the course of proceedings the applicant claimed that firstly, after her maternity leave she had been refused to return to her former post. Secondly, according to Ms Coleman, her former employer refused to allow her the same flexibility as regards her working hours and the same working conditions as other workers. Thirdly, Ms Coleman claimed to have been subject to abusive comments about both her and her son and to have been described as lazy when requesting time off to care for her child. Finally, according to the applicant, having occasionally arrived late at the office because of problems related to her son, she was threatened that she would be dismissed if she came to work late again. All of the above described types of behaviour fall within the definition of harassment, which according to Directive 2000/78, should be considered as a form of discrimination that occurs when unwanted conduct related to any of the protected grounds takes place with the
29 30

Handbook on European..., p. 30. C-303/06, 17/07/2008. 31 John Carvel, Carers court victory on flexible working rights, The Guardian, 01/02/2008.

17

purpose or effect of violating the dignity of a person and of creating an intimidating, hostile, degrading, humiliating or offensive environment. Consequently, Ms Coleman claimed to have been treated less favourably than her colleagues because any of the above mentioned examples of harassment that eventually led to the applicants forced redundancy would not have occurred to workers who were parents of non-disabled children. In the course of proceedings, the Employment Tribunal had doubts whether in Ms Colemans case it was possible to apply English provisions implementing Directive 2000/78. Although the Directive does ensure equal treatment in employment in terms of disability, Ms Coleman was not disabled herself. In the light of the above doubts, the national court decided to refer to the Court of Justice of the EU. The proceedings were followed with interest by a number of Member States, as well as largely covered by the media. In response to the preliminary ruling, The Court of Justice states that Directive 2000/78 must be interpreted as prohibiting direct discrimination on grounds of disability not only in respect of employees who are themselves disabled, but equally of employees who are treated less favourably by reason of the disability of their child for whom they are the primary provider of care. Advocate General Miguel Poiares Maduros opinion preceding the Courts judgement contains a fundamental statement as regards the concept of discrimination by association which reads: Directly targeting a person who has a particular characteristic is not the only way of discriminating against him or her; there are also other, more subtle and less obvious ways of doing so. One way of undermining the dignity and autonomy of people who belong to a certain group is to target not them, but third persons who are closely associated with them and do not themselves belong to the group. A robust conception of equality entails that these subtler forms of discrimination should also be caught by anti-discrimination legislation, as they, too, affect the persons belonging to suspect classifications.32

32

C-303/06, Opinion of Advocate General, 31/01/2008.

18

Thus, as a result of Coleman judgement, the Court of Justice has extended the scope of protection safeguarded by anti-discrimination directives to persons who do not themselves have a characteristic exposing them to unfavourable treatment. As Charlotte O'Brien points out, hence the mischief aimed at is secondary discrimination experienced by disabled persons as a result of unfavourable treatment meted out to their associates; less tangible, but arguably more insidious than blunter primary discrimination33.

7.2. Discrimination by declaration. Feryn case.

Similarly to discrimination by association, the concept of declaratory discrimination has evolved thanks to the Court of Justices jurisprudence, namely the case of Firma Feryn NV 34decided in July 2008. Feryn was a Belgian firm specialised in the sale and installation of up-and-over and sectional doors. In 2005, Feryn intended to employ fitters to install doors at customers houses35 and the newspaper De Standaard published an interview with Mr Pascal Feryn, one of the firms directors. Under the heading Customers do not want Moroccans Mr Feryn said that his firm would not recruit persons of Moroccan origin because customers did not trust them and did not want them to enter their houses. Similar publications appeared in two other newspapers. Mr Feryn also participated in an interview on national television. Consequently, a Belgian body designated to promote equal treatment on the basis of Mr Feryns public statements applied to Belgian labour courts for a finding that Feryn used a discriminatory recruitment policy. However, the application was dismissed because there was no proof nor was there a presumption that a person had applied for a job and had not been employed as a result of his ethnic origin36. Nevertheless, the Labour Court of Brussels (Arbeidshof te Brussel), to which the applicant later appealed, decided to address the Court of Justice of the European Union with a reference for preliminary ruling. It requested the Court to interpret the provisions of Racial Directive 2000/43 for the purpose, essentially, of assessing the scope of the concept of direct

33

Charlotte O'Brien, Equality's false summits: new varieties of disability discrimination, "excessive" equal treatment and economically constricted horizons, European Law Review, 2011, 36(1), 26-50, p. 31. 34 C-54/07, 10/07/2008. 35 C-54/07, Opinion of Advocate General... 36 C-54/07, 10/07/2008.

19

discrimination in the light of the public statements made by an employer in the course of a recruitment procedure. In the judgement the Court has held that public statements by which an employer lets it be known that under its recruitment policy it will not recruit any employees of a certain ethnic or racial origin are sufficient for a presumption of the existence of a recruitment policy which is directly discriminatory. Moreover, such statements are likely to dissuade certain candidates from submitting their candidature and, accordingly, to hinder their access to the labour market. As Advocate General Poiares Maduro states in his opinion: In any recruitment process, the greatest selection takes place between those who apply, and those who do not. Nobody can reasonably be expected to apply for a position if they know in advance that, because of their racial or ethnic origin, they stand no chance of being hired. Therefore, a public statement from an employer that persons of a certain racial or ethnic origin need not apply has an effect that is anything but hypothetical. The case of Feryn has proven that even though Directive 2000/43 was not intended to make it possible, the existence of an identifiable victim-complainant is not an indispensible condition for EU law to be applied by national courts. The above described extension of the scope of protection safeguarded by anti-discrimination directives has been acknowledged by certain authors as discrimination by declaration37.

8. Conclusions. Towards European Constitutionalism.

To conclude, throughout years of application of EU ant-discrimination directives, the scope of fundamental rights protection has been notably extending. In mid-1970s, when the first ant-discrimination directive came into force the traditional concept of gender equality aimed at women, who were considered to be a group vulnerable to unfavourable treatment as regards access to employment. Nowadays, the concept of equality between sexes has been gradually adapted in different fields, even in insurance matters, as confirmed by Association belge des Consommateurs Tests Achats judgement. However, as years went by, gender equality directives have become a tool of major importance also in order to combat discrimination of men in areas traditionally exclusively

37

Charlotte O'Brien, Equality's false summits...

20

occupied by women. The case of Mr Roca lvarez should be regarded as an interesting example of the above extension covering an equal access of men and women to parental leave. Apart from gender equalitys evolution, EU anti-discrimination directives have also increased the number of protected groups adapting new directives, which tackle discrimination on the grounds of age, disability, racial or ethnic origin, sexual orientation and religion or belief. Furthermore, the scope of protection has been extended upon the development of new categories of discrimination acknowledged by the Court of Justice of the European Union. Discrimination by association, as described in Coleman judgement, protects persons subject to discrimination on the ground of a feature that they do not personally have. Similarly, declarative discrimination, which has been defined in Feryn judgement, enables bringing a legal action in the absence of an individualised victim-claimant. Finally, recent jurisdiction of the Court of Justice (e.g. Roca lvarez) has proven that horizontal effect of directives has been gradually accepted. Consequently, it has been already possible to impose obligations on private parties on the basis of directives in order to ensure fundamental rights protection. As a result, given the Charter of Fundamental Rights debatable position in EUs legal system as well as in the absence of a constitution common to all the Member States, secondary law, namely non-discrimination directives, has been granted a pivotal role. Together with their creative interpretation applied by the Court of Justice, directives have become one of the tools which safeguard effective protection of fundamental rights, equal treatment being one of them, within the European Union. On one hand, directives cover issues such as homosexual partnership, which if subject to official negotiations and ratification might not have been accepted by all of the Member States. On the other, the Court of Justices decisions (for example, Association belge des Consommateurs Tests Achats) imposes on the Member States economically disadvantageous measures to which they would probably have not agreed in an official legislative procedure. That is why EU anti-discrimination law, namely directive and their application by the Court of Justice has apparently become a sort of soft constitution in the field of the principle of equality.

21

9. Literature and cases.

9.1. Literature.
Handbook on European non-discrimination law, (collective work), European Union Agency for Fundamental Rights, 2011. Lech Garlicki, Cooperation of courts: The role of supranational jurisdictions in Europe,http://www2.wpia.uw.edu.pl/694,European_Convention_on_Human_Rig hts_and_the_legal_system.html. Heather MacRae, The EU as a Gender Equal Polity: Myths and Realities, Journal of Common Market Studies, 2010 Vol. 48, Number 1, 155-174. Gay Moon, Multiple Discrimination: Justice for the Whole Person, Roma Rights 2, 2009: Multiple Discrimination, 27/04/2010. Niamh Nic Shuibhne, The reality of rights: from rhetoric to opt-out, European Law Review, 2009, 34(6), 815-816. Charlotte O'Brien, Equality's false summits: new varieties of disability discrimination, "excessive" equal treatment and economically constricted horizons, European Law Review, 2011, 36(1), 26-50. Krzysztof Wjtowicz, The principles governing the application of Community law in the countries of the European Union, Zeszyty CEN, Zeszyt 8(2003).

9.2. Cases.
C-303/06 (ECJ), S. Coleman v Attridge Law and Steve Law. C-54/07 (ECJ), Centrum voor gelijkheid van kansen en voor racismebestrijding v Firma Feryn NV. C-104/09 (ECJ), Pedro Manuel Roca lvarez v Sesa Start Espaa ETT SA. C-236/09 (ECJ), Association belge des Consommateurs Test-Achats ASBL, Yann van Vugt, Charles Basselier v Conseil des ministres.

22