eu sex equality law post amsterdam 173 use of ‘the dominance approach’. 110 But, then again there is the argument that EU sex equality law cannot become an entirely all-embracing ‘human right’ due to the limited competence of EU institutions. 111 However, the need for successful integration of women as part of the Lisbon strategy for the internal market and other policies should go a long way to this end. The Race Directive has clearly paved the way for the new Article 13 Directive 2004/113/EC broadening the scope of sex equality law beyond the area of work and employment and no doubt for significant progress. However, the fact that this Directive is considerably more limited in scope than the Race Directive has been said to create a hierarchy in discrimina- tion to the detriment of sex equality law, despite the considerable ‘heritage’ of the latter as spelt out earlier in this chapter. Another worry has been the erosion of key concepts of discrimination law as a consequence of their overall harmonisation. As regard justifica- tions, the traditional view is that direct discrimination can never be justi- fied. However, in her report to the Stockholm Congress already referred to above, Tamara Hervey emphasised justifications of both direct and indirect discrimination on an ‘uninterrupted scale’ and argued that the former Article 2 rules of the ETD will be seen as justifications within the discrimination concept. 112 Recent developments add to this picture. ‘It is now all about the justification of differential treatment’ said Bercusson `aproposthe Part-time and Fixed-term Directives banning explicitly only direct discrimination and at the same time opening up the way for its justification. There is also the very extensive rule on acceptable differ- ential treatment in the form of direct discrimination concerning age in the Framework Directive 113 and concerning the provision of goods and services exclusively or primarily to members of one sex when justified by alegitimate aim, appropriate and necessary according to the new Article 13 Directive. 114 Future influences from the human rights approach may 110 C. MacKinnon, ‘Difference and Dominance, On sex-discrimination’, in: K. T. Bartlett and R. Kennedy (eds.), Feminist Legal Theory, Readings in Law and Gender (Westview Press, 1991), pp. 81–94. 111 S. Prechal (2004), p. 551. 112 T. Hervey, EC law on Justifications for Sex Discrimination in Working Life,available at the Congress website: www.juridicum.su.se/stockholmcongress2002. In her paper to the 18–20 November 2004 Hague conference, however, she does conclude that a core general principle of justification for direct sex discrimination to date has been resisted by the ECJ, see T.Hervey,What has EU sex equality law brought us this far: Is the glass half full or half empty? 113 See Art. 6 the Framework Directive 2000/78/EC. 174equality law in an enlarged european union also lead in this direction since the European Court of Human Rights permits justifications in cases of direct gender discrimination. 115 There is thus the risk of erosion of the ECJ’s fundamentalist approach to direct discrimination. I have myself argued for the benefits of such an ultimate proportionality-test approach in relation to positive action measures and substantive equality. 116 Nevertheless, there are also risks attached to such adevelopment to consider. Then there is the concept of indirect discrimination – of special interest when it comes to substantive equality and equally adequate working con- ditions. Whereas the ban on direct discrimination concentrates on what is to be regarded as alike 117 and not on the treatment as such – what I will call the reference norm – the concept of indirect discrimination has a special potential. An apparently neutral reference norm with detrimental effects for a protected group must be objectively justified by a legitimate aim, represent a necessary means and be proportionate to its purpose. 118 The new and harmonised definition of this concept now present in the Amended ETD (and the Recast Directive) has already been discussed from the angle of providing new options as regards how to prove discrimina- tion. This is a good thing. However, there is also here the risk of erosion of the concept of indirect discrimination.The variable geometry of different grounds for discrimination bans may turn out to erode the concept. We can already discern a tendency to stress differences in recent case law not finding the situations at hand comparable. 119 As regard the disabled, the concept of reasonable accommodation makes room for economic argu- ments on behalf of the employers as justifications, something which may turn out to undermine other grounds of discrimination in the long run, also. The potential of the concept of indirect discrimination has thus so far been hampered in the process of application. However, there are also some more positive lines of argument. Bercusson, at the Stockholm conference, recalled how the issue of justifications is related to managerial preroga- tives at the heart of labour law. Discrimination law and the requirements 114 See Art. 4(5) of the Directive 2004/113/EC. 115 C. McCrudden (2004). 116 See A. Numhauser-Henning, ‘On Equal Treatment, Positive Action and the Significance of a Person’s Sex’, in A. Numhauser-Henning (ed.), Legal Perspectives on Equal Treatment and Non-Discrimination (Kluwer, 2001). 117 I.e. what are to be regarded as similar cases. 118 On this line of argument, see A. Christensen ‘Structural Aspects of Anti-Discriminatory Legislation’ and ‘Processes of Normative Change’, both in A. Numhauser-Henning (ed.), Legal Perspectives on Equal Treatment and Non-Discrimination (Kluwer, 2001). 119 Compare S. Prechal (2004). eu sex equality law post amsterdam 175 of justifications for differential treatment may well develop into a general duty for employers objectively to justify their managerial decisions. 120 Equal treatment law may also aim at formulating positive/substantial requirements on managerial decisions/working conditions. Marie-Ange Moreau, also at the Stockholm conference, presented the very interest- ing idea of a widened scope for the requirement on adjustment measures now applying to disabled people to all under-represented groups. 121 Such ideas relate in an interesting way to the Amended ETD’s new rules on preventive measures, equality plans and special bodies to promote equal- ity between men and women. 122 However, the special rights already in place for pregnant and breastfeeding women – and to some extent for fathers and parents in general – are perhaps the best examples of such accommodation outside the area of disability, so far. Article 13 and the widened scope for the non-discrimination principle to coveranumberofnewgroups, further expanded by the Union Charter on Fundamental Rights 123 and a number of Community law instruments as regards atypical employment, threaten, however, to weaken the ban on discriminatory treatment, reducing it to the notion of formal equality already at the heart of the ECJ’s case law. There is, in my opinion, a consid- erable risk that an ever-growing number of groups to be protected against discrimination will incline the notion of discrimination even closer to the Aristotelian concept of formal equal treatment as the least common denominator than hitherto. The Article 13 Directives here build on weaker ground than gender equality due to the new provisions after the Amster- dam Treaty, which in the area of gender equality thus demand a positive and proactive approach. Such fears can, to some extent, be said to have been confirmed by the Commission’s Green Paper on ‘Equality and Non- discrimination in an Enlarged Union’ which clearly focuses on Article 13 and the two Directives then adopted on this basis and articulated in 120 See further, for instance, M. R ¨ onnmar, ‘The Right to Direct and Allocate Work – From Employer Prerogatives to Objective Grounds’, in A. Numhauser-Henning (ed.), Legal Perspectives on Equal Treatment and Non-Discrimination (Kluwer, 2001). 121 M A. Moreau, ‘Justifications of Discrimination’, available at the Congress website: http://www.juridicum.su.se/stockholmcongress2002 published in R. Blanpain (ed.), Labour Law &Social Security and the European Integration, Bulletin of Comparative Labour Relations (Kluwer Law International, 2002). 122 As regards this line of argument, see also A. Neal, ‘Disability Discrimination at Work’ in A. Numhauser-Henning (ed.), Legal Perspectives on Equal Treatment and Non- Discrimination (Kluwer, 2001). 123 Article 21(1) of the Charter. 176equality law in an enlarged european union termsofnon-discrimination to the detriment of the duty of the Union to promote equality in general and sex equality in particular. 124 The situation in many of the new Member States – the post-communist countries – adds to this picture. To quote Csilla Kollonay Lehoczky: ‘while conservatives favour “restoring classic family values” and this necessarily is a threat to already won labour market positions and social equality, lib- erals – in the name of private autonomy – feel reluctant to interfere with market freedom, and with the freedom of the owner (employer) in using their property.’ 125 However, as formal equal treatment has proven ineffec- tive or at least insufficient to come to terms with substantive differential treatment in the real world there is also the possibility that such a general development will open up for a more proactive approach to tackle the real problems of labour-market and society. 126 Inareportonequaloppor- tunities for women and men in the new Member States and accession countries from the Open Society Institute 127 it was clearly indicated that whereas the EU integration process had been a catalyst for improvements in the legislative framework on gender equality this legal change had not really made an impact on substantive equality in the daily lives of men and women. To this end the report recommends ‘the European Commission should strengthen its role in monitoring the transposition and imple- mentation of legislation’, gender mainstreaming strategies should really be applied and relevant authorities should acquire a real commitment to equality between men and women. 128 As can beseenfromanumber of Community policy documents, the question of social inclusion – not least into the labour market – whether of women and the elderly, or of the citizens of new Member States or the disabled, must be considered a major concern for the future. The fundamental rights approach requires the scope of equality to be broadened further beyond the traditional area 124 Compare E. Caracciolo di Torella at the 2004 Hague conference. 125 C. Kollonay Lehoczky, The significance of existing EC sex equality law for women in the new Member States. The case of Hungary,paper to the 18–19 November 2004 Hague Conference. 126 Compare the Commission’s proposal on an Institute for Gender Equality, where the pos- sibility to integrate sex equality matters in one Fundamental Rights Agency was rejected since it could imply that ‘gender equality would remain a peripheral matter and would not receive the necessary attention and priority and as a result the impact would be very limited’ (p. 5). 127 Equal Opportunities for Women and Men, Monitoring law and practice in new mem- ber states and accession countries of the European Union, Network Women’s Program, Open Society Institute 2005, see www.soros.org/initiatives/women/articles publications/ publications/equal 20050502. 128 Ibid, at p. 53. eu sex equality law post amsterdam 177 of the economically active not only with regard to women but also with regard to the other marginalised groups outside the Race Directive. The issue of political representation has not yet been addressed, nor has the monumental issue of domestic violence. To further such developments the Aristotelian concept of equality is clearly not enough but must be complemented by a plurality of different equality concepts and positive measures in the broadest definition. 6 EU anti-racism policy: the leader of the pack? mark bell ∗ Introduction In November 2004, the former Directorate-General for Employment and Social Affairs became the Directorate-General for Employment, Social Affairs and Equal Opportunities. This change in nomenclature was accompanied by a refreshing of the Commission’s Internet pages on anti- discrimination. In the transition to the new pages, the dedicated website on ‘anti-racism policy’ disappeared and was consigned to the archives section. 1 This could be dismissed as a small matter of information pre- sentation, but could it also be viewed as symptomatic of the current state of the Union’s anti-racism policy? The conventional view amongst many academic commentators is that race and ethnicity find themselves at the pinnacle of the so-called ‘hier- archy ofequality’. 2 The main reason for this perception is the relative strength of the Race Equality Directive 3 when compared to other areas of EU anti-discrimination law. Notably, the prohibition of discrimination on grounds of racial or ethnic origin applies to a wider range of areas than equivalent legislation on discrimination on grounds of sex, religion or belief, disability, age and sexual orientation. Given such disparities within EU anti-discrimination legislation, there are good reasons to argue that a higher level of protection exists in respect of discrimination on grounds of ∗ Iwish to acknowledge the helpful comments and suggestions from Helen Meenan, Erik Bleich and the participants at the ‘Equality and Diversity’ Conference held at the University of Leicester on 13 May 2005. 1 http://europa.eu.int/comm/employment social/fundamental rights/ public/arcr en.htm. 2 Forexample,C. Brown, ‘The Race Directive: towards equality for all the peoples of Europe?’ (2002) 21 Yearbook of European Law pp. 195–227, at p. 222; H. Meenan, ‘Age equality after the Employment Directive’, (2003) 10 Maastricht Journal of European and Comparative Law,pp. 9–38, at p. 10. 3 Directive 2000/43/EC implementing the principle of equal treatment between persons irrespective of racial or ethnic origin, [2000] OJ L180/22. 178 eu anti-racism policy: the leader of the pack? 179 racial or ethnic origin. Nevertheless, does this fully reflect the strength of the Union’s commitment to combating racism? This chapter asks whether the picture painted by an exclusive focus on anti-discrimination legisla- tion may be misleading. Whilst the Directives are central elements in the Union’s efforts to combat discrimination, they are not isolated legal ini- tiatives. Instead, they form part of a wider policy framework on equality. Alongside the legal instruments there are a range of other measures that need to be considered. For example, the specialised action programmes on equality 4 and initiatives taken in other policy fields where equality objec- tives have been integrated through the process of mainstreaming. 5 By stepping back from the Directives and broadening the horizon, this chap- ters suggests that the assumed equality hierarchy becomes more debatable. To this end, the chapter begins with an overview of the principal poles around which EU anti-racism policy has been organised. It identifies three main fields: legislative instruments, mainstreaming and an institutional commitment. Each of these is then examined in turn before concluding with an overall assessment of the state of anti-racism policy. The construction of a policy against racism The adoption of a Directive devoted to racial discrimination reflected the growing dynamism of EU anti-racism policy during the 1990s. Various factors combined to propel race up the political agenda. High profile incidents of racist violence occurred alongside a significant improve- ment in the electoral fortunes of parties from the extreme right-wing. These movements often placed anti-immigrant rhetoric at the centre of their policy platforms. During the same period, the role for the European Union in immigration and asylum grew considerably. Critics argued that the emerging policies were unduly restrictive, frequently captured in the notion of ‘Fortress Europe’. 6 Anti-racism policy became a means for the EU to counter such criticisms by presenting evidence that it was tak- ing initiatives to assist those migrants already residing within the Union. Against this backdrop, issues of racism assumed a greater political salience than other discrimination grounds. Combating racism came to feature 4 E.g. Council Decision 95/593/EC concerning a medium-term Community action pro- gramme on equal opportunities for women and men (1996–2000), [1995] OJ L335/37. 5 S. Mazey, ‘Gender mainstreaming strategies in the E.U.: delivering on an agenda?’ (2002) 10 Feminist Legal Studies pp. 227–40. 6 L. Fekete and F. Webbe r, Inside Racist Europe (Institute of Race Relations, 1994), p. 28. 180 equality law in an enlarged european union regularly on the agenda of European Council meetings 7 and the antecedents of Article 13 EC lie, in part, in the decision of the European Council in 1994 to create a Consultative Commission on Racism and Xenophobia. 8 This group, mainly composed of representatives of Mem- ber State governments, made a wide range of recommendations for con- structing a comprehensive EU policy against racism. 9 Whilst the group’s support for an amendment of the Treaty helped lead towards Article 13 EC, this was just one element of a much broader strategy. For example, the Council subsequently agreed to designate 1997 as European Year Against Racism, an initiative that served to spotlight the increasingly prominent role of the EU in this area. Drawing together the various developments during and since this period, three principal policy strands can be identified. The first strand is legislative initiatives.Asalready discussed, the Race Equality Directive is obviously the shining example of legal measures taken by the European Union to combat racism. Less frequently noted is the fact that the Direc- tive was preceded in 1996 by the adoption of the Joint Action concerning action to combat racism and xenophobia. 10 This instrument aimed to promote cross-border judicial cooperation in relation to racist criminal offences. As such, it reveals a twin-track legislative strategy; on the one hand, anti-discrimination legislation and, on the other, measures to com- bat racism as a crime. This was also reflected in the changes introduced by the 1999 Treaty of Amsterdam. Anti-racism was inserted as a core objective of the newly proclaimed Area of Freedom, Security and Justice: the Union’s objective shall be to provide citizens with a high level of safety within an area of freedom, security and justice by developing common action among Member States in the fields of police and judicial cooper- ation in criminal matters and by preventing and combating racism and xenophobia. 11 The legislative initiatives against racism were not intended to be self- standing and in 1998 the Commission published its ‘Action Plan Against Racism’. 12 One of the hallmarks of the Action Plan was a new commitment to mainstreaming anti-racism. This evidently borrowed from the language 7 It was mentioned six times in European Council conclusions between 1990 and 1994: see M. Bell, Anti-discrimination law and the European Union (Oxford University Press, 2002), p. 69. 8 Bulletin-EU,Issue 6-1994, point I.29. 9 Consultative Commission on Racism and Xenophobia, ‘Final Report’, 6906/1/95 Rev 1, RAXEN 24 (General Secretariat of the Council of the European Union, 1995). 10 [1996] OJ L185/5. 11 Article 29 EU. 12 Commission, ‘Action Plan Against Racism’ COM (1998) 183. eu anti-racism policy: the leader of the pack? 181 and tools of EU gender equality policy, where mainstreaming became a central strategyduring the 1990s. 13 The Commission promised to ‘actively develop a mainstreaming approach to combating racism’, 14 listing a range of policy fields, such asemployment, education, youth and research, where anti-racism objectives would be integrated. The final element to EU anti-racism policy was an institutional commit- ment in the form of the European Union Monitoring Centre on Racism and Xenophobia (EUMC). This arose from a recommendation of the European Council’s Consultative Committee and its establishment was approved in 1997. 15 At the time, this represented a strategic commitment by the Union to provide an entrenched focus on racism. The EUMC seemed to promise an institutional source of expertise, supporting anal- ysis and the future development of anti-racism policy. These three policy pillars – legislation, mainstreaming and an institutional commitment – constructed a relatively elaborate framework. The rest of this chapter con- siders each of these pillars in order to review their evolution and current status. Legislative initiatives The Race Equality Directive Although the Race Equality Directive sits amidst a range of EU anti- discrimination legislation, it possesses three features that have under- scored its relative strength. First and foremost, the Directive’s material scope is broad: it applies to employment, vocational training, education, social protection, social advantages and access to goods and services, including housing. 16 Immediately, this distinguished the Directive from the pre-existing legislation on sex equality, which was limited to employ- ment and social security. Moreover, the accompanying Framework Employment Directive provided protection against discrimination on grounds of religion or belief, disability, age and sexual orientation, but only in respect of employment and vocational training. 17 This situation has altered slightly following Directive 2004/113/EC implementing the 13 Commission, ‘Incorporating equal opportunities for women and men into all Community policies and activities’ COM (1996) 67. 14 Commission, Action Plan, p. 3. 15 Regulation 1035/97/EC establishing a European Monitoring Centre for Racism and Xeno- phobia, [1997] OJ L151/1. 16 Article 3(1), Directive 2000/43. 17 Directive 2000/78/ECestablishinga general framework forequal treatment inemployment and occupation, [2000] OJ L303/16. 182equality law in an enlarged european union principle of equal treatment between men and women in the access to and supply of goods and services. 18 This instrument goes some way to levelling-up protection against sex discrimination. Nevertheless, there remain important areas where the scope of the Race Equality Directive is not mirrored elsewhere; most notably, sex discrimination in the field of education is still not prohibited by EU law. 19 The second noteworthy dimension to the Race Equality Directive is its combination of a wide material scope of application with relatively few exceptions to the principle of equal treatment. Here, the contrast with Directive 2004/113/EC is stark. Although protection against sex dis- crimination has been extended beyond labour market matters, this is counterbalanced by a number of significant exceptions. Whilst there is no possibility to justify taking racial or ethnic origin into account in the provision of financial services, it remains open to Member States to per- mit sex to be taken into account in calculating risk assessments (e.g. in setting insurance premiums). 20 Finally, the Race Equality Directive was the first instrument to require Member States to create a body for the promotion of equal treatment with functions such as assisting individual victims of discrimination. 21 This obligation now also exists in respect of sex discrimination, 22 but not for any other ground. Although the Race Equality Directive contains its own weaknesses and limitations (in particular the broad exception for difference of treatment based on nationality 23 ), it remains strong in comparison to other EU anti-discrimination legislation. It is fair to conclude that the Directive was a relatively bold step that transformed a policy history of hesitancy into a concrete legal commitment on the part of the Union. The roots of this turnaround lie in the political consensus built during the 1990s on the need for an EU dimension to anti-racism policy. The high-level commitment to taking action against racism was not equally evident on issues such as age or sexual orientation and this factor encouraged the Commission to propose separate and more ambitious legislation on racial 18 OJ 2004 L373/37. 19 This is excluded from the scope of Directive 2004/113 (Art. 3(3)). 20 Ibid., Art. 5(2). See further, E. Caracciolo di Torella, ‘The goods and services Directive: limitations and opportunities’ Feminist Legal Studies,13(2005), pp. 337–47. 21 Article 13, Directive 2000/43. 22 Article 8a, Directive 2002/73/EC amending 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, [2002] OJ L269/15; Article 12, Directive 2004/113. 23 Article 3(2), Directive 2000/43. [...]... are predominantly Catholic (Austria, Belgium, France, Hungary, Ireland, Italy, Lithuania, Luxembourg, Malta, Poland, Portugal, Slovakia, Slovenia and Spain), five are predominantly Protestant (Denmark, Estonia, Finland, Sweden and the UK) and three are mainly Christian with no denomination predominating (Germany and the Netherlands have approximately equal numbers of Catholics and Protestants; the population... first espoused in the Commission’s 1998 Action Plan Against Racism Since then, adherence 47 48 49 Article 8(3), ibid M Pollack and E Hafner-Burton, ‘Mainstreaming gender in the European Union (2000) 7 Journal of European Public Policy pp 432–4 56, at p 4 36 E Bleich, Race politics in Britain and France – ideas and policymaking since the 1 960 s (Cambridge University Press, 2003), p 170 eu anti-racism policy:... Rights, Anti-Discrimination and Equal Opportunities .60 This could be a vehicle for mainstreaming race issues into new initiatives, however, there is no apparent mechanism for reviewing the effects of pre-existing law and policy The product of mainstreaming anti-racism In assessing the Commission’s mainstreaming activities, two aspects can be highlighted: financial support for projects on racism and the integration... Commission, Equality and non-discrimination in an enlarged European Union COM (2004) 379, p 12 H Oliver, ‘Sexual orientation discrimination: perceptions, definitions and genuine occupational requirements’, Industrial Law Journal 33 (2004), pp 1–21, at p 20 198 equality law in an enlarged european union The fact that there are overlapping and shared features in the process of equality data collection does... forthcoming) 184 equality law in an enlarged european union in the manner imagined by the Directives The post-9/11 context has highlighted the interlocking nature of race and religion with respect to Muslim communities of migrant origin Secondly, although other grounds, such as age or disability, are easier to distinguish from race and ethnicity, they can combine to produce specific forms of inequality In. .. Report’, 69 06/ 1/95 Rev 1, RAXEN 24 (General Secretariat of the Council of the European Union, 1995) Regulation 1035/97/EC Commission, ‘Report on the activities of the European Monitoring Centre on Racism and Xenophobia’ COM (2000) 62 5, p 4 There was a 73 per cent underspend in 1998 and a 26 per cent underspend in 1999: Commission, ibid., p 9 194 equality law in an enlarged european union independence... on Mainstreaming (EG-S-MS) (Council of Europe, 1998) F Beveridge and S Nott, ‘Mainstreaming: a case for optimism and cynicism’ (2002) 10 Feminist Legal Studies pp 299–311, at p 301 190 equality law in an enlarged european union approaches have sought to underpin mainstreaming duties by making them legally binding and ultimately open to judicial enforcement.55 The first weakness that seems evident in. .. within their own ranks and anyone else of a different persuasion At the same time, Western Christendom engaged in an outward-facing war against the Islamic Ottoman Empire and some of what are seen as key moments in European history relate to this struggle The re-conquest of Granada by the Spanish in 1492 ensured that the lands north of the Mediterranean remained part of the Holy Roman Empire, but in. .. ‘Integrating immigrants and minorities in a wider and deeper Europe’, in W Spohn and A Triandafyllidou (eds.), Europeanisation, national identities and migration – changes in boundary constructions between Western and Eastern Europe (Routledge, 2003), pp 83–98, at p 94 A Masselot, ‘Gender equality outside the labour market’ in M Mateo Diaz and S Millns (eds.), The future of gender equality in the European Union. .. Ethnic monitoring and a data protection – the European context (Central European University Press, 2001) Commission, Activities of the European Monitoring Centre, p 5 See www.eumc.at/eumc/index.php?fuseaction=content.dsp cat content&catid=1 1 96 equality law in an enlarged european union rights in general; abolition As with the 2002 external evaluation, the Commission concluded that expanding its remit . in the European Union (Palgrave, forthcoming). 18 4equality law in an enlarged european union in the manner imagined by the Directives. The post-9/11 context has high- lighted the interlocking nature. ‘Mainstreaming gender in the European Union (2000) 7 Journal of European Public Policy pp. 432–4 56, at p. 4 36. 49 E. Bleich, Race politics in Britain and France – ideas and policymaking since. (Institute of Race Relations, 1994), p. 28. 180 equality law in an enlarged european union regularly on the agenda of European Council meetings 7 and the antecedents of Article 13 EC lie, in part,