Phd Course Individual Person and Legal
Protections
Academic Year
2019/2020
Age discrimination in the European
Union. Comparative perspectives of the
Netherlands, Italy and France
Author
Krystyna Romanivna Bakhtina
Supervisors
Prof. Giuseppe Martinico Prof. Samo Bardutzky
Content
1 Introduction ... 1
2 Age discrimination laws and policies at the EU level ... 8
2.1 EU legal framework on equality ... 8
2.2 Age discrimination and the Employment Equality Directive ... 13
2.3 Commission proposal on a new Directive ... 21
2.4 The EU Pillar of social rights ... 25
2.5 EU social policies addressing elderly people ... 28
2.5.1 Importance of social policies ... 28
2.5.2 Development of the EU instruments on active ageing ... 29
2.5.3 Active ageing as a part of EU strategy ... 32
2.5.4 Response of the Member States to EU initiatives ... 35
2.5.5 Challenges and weaknesses related to social policies ... 36
2.6 EU social policies addressing youth ... 37
2.7 Conclusion ... 40
3 Case law of the Court of Justice of the European Union ... 43
3.1 Background ... 43
3.2 Development of the Mangold doctrine ... 44
3.2.1 The Mangold judgement ... 44
3.2.2 CJEU ruling in Kücükdeveci ... 50
3.2.3 Further application of the Mangold approach ... 53
3.3 Age discrimination and compulsory retirement ... 55
3.4 Cases regarding the maximum age of recruitment ... 65
3.5 Gradation of pay by age categories ... 69
3.6 Severance allowance cases ... 77
3.7 Age discrimination cases concerning young people ... 82
3.8 National legislation capping deductions of training costs incurred after a certain age ... 85
3.9 Enforcing the prohibition of discrimination ... 87
3.10 Conclusion ... 88
4 The Netherlands ... 93
4.1 Legal framework on protection against discrimination in the Netherlands ... 93
4.2 Age discrimination in the Netherlands ... 97
4.2.1 Dutch laws on age discrimination ... 99
4.2.2 Enforcement ... 105
4.3 Analysis of age discrimination cases ... 109
4.3.1 Pre-employment situations ... 109
4.3.2 Case law on retirement ages, termination of contracts when reaching a particular age ... 111
4.3.3 Termination of employment and redundancy compensation ... 114
4.4 Dutch social policies ... 117
4.4.1 Social policies addressing older people ... 117
4.4.2 Social policies addressing younger people ... 123
4.5 Conclusions ... 127
5 Italy ... 129
5.1 Legal framework on protection against discrimination in Italy ... 129
5.2 Age discrimination in Italy... 134
5.2.1 Italian laws on age discrimination ... 135
5.2.2 Enforcement ... 137
5.3 Analysis of age discrimination cases ... 140
5.3.1 Age as a Criterion in case of redundancy ... 140
5.3.2 Mandatory retirement and age discrimination ... 141
5.3.3 Indirect discrimination in case of public sector employees ... 144
5.4 Social policies ... 145
5.4.1 Social policies addressing older people ... 145
5.4.2 Social policies addressing young people ... 150
5.5 Conclusion ... 155
6 France ... 156
6.1 Legal framework on protection against discrimination in France ... 156
6.2 Age discrimination in France ... 161
6.2.1 French laws on age discrimination ... 163
6.2.2 Enforcement ... 167
6.3 Analysis of age discrimination cases ... 171
6.3.1 Age discrimination and fixed-term contracts ... 171
6.3.2 Termination of employment when reaching a particular age ... 173
6.3.3 Age in Collective Redundancies ... 176
6.3.4 Refusal to access training due to age ... 177
6.4 Social policies ... 178
6.4.1 Social policies addressing older people ... 178
6.4.2 Social policies addressing young people ... 184
6.5 Conclusions ... 189
7 Conclusions ... 191
7.1 Findings ... 191
1
‘I have cherished the ideal of a democratic and free society in which all persons live together in harmony and with equal opportunities’
Nelson Mandela
1 Introduction
Are you too old at the age of 42? In 2009 in the UK a 42 year old employee of the financial sector was fired for being too old and replaced by a 38 years old.1 Presently, being ‘too old’ or ‘too young’ can be a reason for job rejection, promotion or a motive to refuse the granting of a loan.
Age prejudice and stereotyping may result in age discrimination, called ageism. The concept of ageism was first introduced by R. Butler, who defined it as ‘[a] process of systematic stereotyping or discrimination against people because they are old, just as racism and sexism accomplish with skin colour and gender. Ageism allows the younger generations to see older people as different than themselves; thus, they subtly cease to identify with their elders as human beings.’2 The concept of ageism first referred to older people but has been evolving over time and currently refers to prejudice or discrimination against or in favour of any age group. 3
Age discrimination in employment has been the topic of scholarly interest for several decades already. Palmore, talking about age discrimination, noted that it ‘may take the form of refusal to hire or promote older workers, or forcing retirement at a fixed age regardless of the worker’s ability to continue working’4. Macnicol labelled age discrimination in employment as ‘age-proxies in hiring, firing, promotion, demotion, remuneration, training, and mandatory retirement’.5
One can think of many examples of age discrimination in the workplace: not hiring senior workers because it is assumed that they will retire soon, not inviting a person for an interview because she/he is too young or too old to ‘fit in’ with other staff, or forcing a person to retire due to her/his age rather than her/his ability. 6
1H Wallop, ‘42-old wins age discrimination case’ <https://www.telegraph.co.uk/news/uknews/6906484/42-year-old-wins-age-discrimination-case.html > accessed 22 February 2020
2 Law Commission of Ontario, ‘Ageism: concepts and theories’ < https://www.lco-cdo.org/en/ > accessed 29 January 2020
3
J Rychtaříková, ‘Perception of population ageing and age discrimination across EU countries’ (2019) 3(4) Population and Economics 1
4
E Palmore, Ageism, negative and positive (2nd ed., Springer 1999) 5
J Macnicol, ‘Ageism and Age Discrimination. Some Analytical Issues’ (2010)< https://ilcuk.org.uk/> accessed 7 November 2019
6 Victorian Equal Opportunity and Human Rights Commission, ‘Age discrimination-workplace’
<https://www.humanrightscommission.vic.gov.au/the-workplace/workplace-discrimination/type-of-discrimination/age > accessed 8 November 2019
2
Although age discrimination is prohibited in the European Union (EU), it still exists and can be considered as one of the inappropriate practices in the workplace. Several reports and surveys have highlighted a significant number of various age-related unfairness cases among young and older people. 7
Article 10 of the Treaty on the Functioning of the European Union (TFEU) states that the Union shall aim to combat discrimination on the basis of, inter alia, age when defining and implementing all its policies and activities. Article 19 TFEU permits the EU to enact legislation combating discrimination based on age. The EU has introduced legislation and various policies aimed at combating age discrimination in the workplace. The most important example is the so-called Employment Equality Framework Directive 2000/78/EC8,which ensures equal treatment in employment and occupation, and prohibits discrimination on grounds of religion, belief, disability, age and sexual orientation. This Directive has been implemented into the national laws of all the EU Member States. Accordingly, there are laws in place in each EU Member State making age discrimination unlawful in the field of employment. In one of the most important age discrimination cases 9, the Court of Justice of the European Union, (also called the European Court of Justice (CJEU)) has stated that the principle of discrimination on the grounds of age is a general principle of EU law. The source of the non-discrimination principle can be found in various international instruments and the constitutional traditions of the Member States.
Despite this, there is still much evidence that age discrimination remains a problem in practice. According to Special Eurobarometer 393 on discrimination in the EU in 201210, 45 % of the participants consider age discrimination as being widespread. A Eurobarometer survey on discrimination conducted in 2015 revealed that 56% of Europeans believe that it is a disadvantage if the age of a job applicant is over 55.11 Recent surveys conducted in some European Member States also demonstrate the existence of the problem of age discrimination in the workplace.
7 Age UK, ‘Grey Matters – A Survey of Ageism across Europe’ (2011) < https://www.ageuk.org.uk/Documents/EN-GB/For-professionals/ageism_across_europe_report.pdf?dtrk=true> accessed 27 October 2019; I Miley, ‘Employers could face surge of age discrimination cases’(2018) < https://www.rte.ie/news/ireland/2018/0430/959143-employers-could-face-surge-of-age-discrimination-ca/> accessed 27 October 2019
8 Directive 2000/78/EC of 17 November 2000 establishing a general framework for equal treatment in employment and occupation [2000] OJ L 303/16 (Employment Equality Directive)
9 Case C-144/04 Werner Mangold v Rudiger Helm [2005] ECR I-09981, para 75 (Mangold) 10 European Union, ‘Special Eurobarometer 393 - Discrimination in the EU in 2012
’(2013) < http://ec.europa.eu/justice/discrimination/files/eurobarometer393summary_en.pdf >last accessed 27 October 2019
11EU, ‘Special Eurobarometer 437 - DISCRIMINATION IN THE EU IN 2015’
<http://ec.europa.eu/justice/fundamental-rights/files/factsheet_eurobarometer_fundamental_rights_2015.pdf> accessed 27 October 2019
3
The issue of age discrimination is at the centre of policy debates and developments. In 2010, the UN General Assembly created an open-ended working group (OEWG) on ageing for the purpose of enhancing the protection of the human rights of older persons. In particular, the main objective of the OEWG is analysing the current international framework of the human rights for older persons, and it is considering the feasibility of further instruments and measures including the possibility to design a new international convention on the rights of older persons. 12 On the European Union level, the Agency for Fundamental Rights dedicated the focus chapter of its 2018 annual report to the rights of older people and called on EU legislators to adopt, in addition to the existing instruments, the Horizontal Directive13 that would allow extending the protection against age discrimination. 14 Age discrimination has a serious impact on individual rights and may also lead to serious social consequences, such as social exclusion and high levels of poverty. 15 Some studies even show that age discrimination can have negative effects on mental health. 16 It should not be acceptable that someone is treated less favourably than another based on the grounds of age. Every individual has the right to equal treatment, and any kind of discrimination should not be allowed. Thus, from a human rights perspective, it is important to address the issue of age discrimination.
The aim of this research is analysing the topic of age discrimination in the workplace both from the EU and national perspectives taking three Member States as an example in order to answer our main research question:
How should EU laws, case law and policies regarding age discrimination influence the national laws, policies and case law on age discrimination of three selected EU Member States (the Netherlands, Italy, France)?
In order to answer this research question, the following steps will be followed. First, the current situation on EU level regarding age discrimination will be analysed. EU laws, policies and case law will be examined. Next, age discrimination laws, case law, policies in the three chosen countries (the
12 United Nations, ‘Open-ended Working Group on Ageing for the purpose of strengthening the protection of the human rights of older persons’ < https://social.un.org/ageing-working-group/index.shtml> accessed 27 October 2019
13 In 2008 there was a legislative proposal of a new Directive to ban discrimination on the grounds of religion or belief, disability, age or sexual orientation in all areas of social life. It will be further discussed in the section 2.3
14European Union Agency for Fundamental Rights, ‘Fundamental Rights Report 2018’ <
https://fra.europa.eu/en/publication/2018/fundamental-rights-report-2018> accessed 27 October 2019 15 C O’Cinneide, ‘The growing importance of age discrimination’ The Equal Rights Review (2013) 99
16 T P Shippee, L R Wilkinson, M H Schafer, Nathan D Shippee, ‘Long-Term Effects of Age Discrimination on Mental Health: The Role of Perceived Financial Strain’ (2019) 74 The Journals of Gerontology 4, 664
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Netherlands, Italy and France) will be studied. Finally, the conclusions will be formulated on how the EU framework on age discrimination should impact the situation in the chosen countries. The following methods were applied to answer the main research question. The doctrinal research method was used in this work. The main features of doctrinal scholarship include ‘a critical conceptual analysis of all relevant legislation and case law to reveal a statement of the law relevant to the matter under investigation’.17 Doctrinal research is regarded as a ‘two-part process’ involving firstly, identification, and secondly, the interpretation of the legal texts.18 When all relevant materials are gathered, a hypothesis may be formed as to the validity and exact meaning of the legal texts, combining ‘specific interpretations of legal principles, rules, concepts in a (newly) systematised whole ’.
Age discrimination has been prohibited at the European Union level by means of the Directive, which was then implemented into the national laws of the Member States. For the purposes of this research, it is crucial to analyse the Directive as well as the national laws on age discrimination. It is important to see how the Directive was implemented by the three above mentioned Member States and study the efficiency and limitations of the national laws in this respect.
For a better understanding of age discrimination in the European Union, it is necessary to perform analysis of the case law of the European Court of Justice. The CJEU in its judgements provides the interpretation of EU law. Analysis of the CJEU decisions allows us to better grasp the concept of age discrimination presented in the Directive. Further, the examination of the national cases on age discrimination was performed. This allows us to see what approach national judges have, when it comes to age discrimination, what analysis judges use when deciding upon age discrimination cases, and to what extent they rely on the interpretation provided by the Luxembourg Court.
It was also decided to study policy documents concerning age discrimination both at the EU level and at the level of the three selected Member States. Therefore, EU Commission recommendations, opinions, and EU strategic plans in relation to young and old people in the labour market was examined. Also, it is important to analyse the soft law, as it can produce legal effects. Soft law can affect policy developments and practices as it has an informal ‘soft’ influence through for instance, the demonstration effects of pilot projects that may have a persuasive impact. In some situations, soft
17 T Hutchinson, ‘Valé Bunny Watson? Law Librarians, Law Libraries and Legal Research in the Post-Internet Era’, (2014 ) 106(4) Law Library Journal 579
18 T Hutchinson , N Duncan, ‘Defining and describing what we do: doctrinal legal research’ (2012) 17 Deakin Law Review 110
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law can serve as a more flexible instrument in attaining policy objectives. EU countries and other stakeholders might decide to do something voluntarily, which they would be less willing to do if legally obligated. 19
The comparative method was employed in this thesis, where policies, laws and case law on age discrimination in the Netherlands, Italy and France have been analysed. This analysis aims at fulfilling ‘the essential task of furthering the universal knowledge and understanding of the phenomenon of law’.20 The reason this research method has been applied is to aim for law improvement. As stated by Siems, comparative law might help improve law ‘technically’— is when one looks at two or more legal systems assuming that the law would lead to a similar result and chooses the best one; secondly, comparative law can help improve a particular social problem or policy; thirdly, comparative law might serve as a trigger for legal changes, such as ‘introducing a new social or economic policy or a re-balancing of group interests’, because the foreign law provides a better response to a particular evolution of society. 21 Further, to show the contribution of comparative law to labour law (which is also the subject of the thesis), Gerard Lyon- Caen wrote that ‘labour law was born comparative’ because it was aiming to provide answers to similar needs in the industrialized world. Solutions discovered in several legal systems were ‘spontaneously analogous’. 22 When it comes to EU labour law, Sciarra mentioned that studying more than one legal system is rather useful, since differences among national traditions demonstrate how rich the national responses can be, at the same time aiming to achieve legal integration.23
In our case, the comparative method aimed to help improve the situation of age discrimination. Revealing common problems of age discrimination at the national level and identifying best practices allowed the formulation of some potential recommendations to be used at the European level. Next, the empirical research method was used in this research. Initially, there were plans to conduct interviews with national judges of the Netherlands, Italy and France. However, this plan was not fully
19 Eurofund, ‘Soft law’<https://www.eurofound.europa.eu/observatories/eurwork/industrial-relations-dictionary/soft-law> accessed 4 November 2019
20 E Örücü, ‘Developing Comparative Law’ in E Örücü and D Nelken (eds), Comparative Law: A Handbook (Hart 2007) 44
21 M Siems, ‘Bringing in Foreign Ideas: The Quest for ‘Better Law’ in Implicit Comparative Law’ (2014) 9 Journal of Comparative Law 119
22 S Sciarra, ‘New discourses in labour law: part-time work and the paradigm of flexibility’ in S Sciarra, P Davies, Freedland (eds.) Employment Policy and the Regulation of Part-time Work in the European Union: A comparative analysis
23 S Sciarra, ‘Some Reflections on Comparative Labor Law and on Its Vicinity with Policy-Making’ (2003-2004) 25 Comparative Labor Law and policy journal
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successful due to the fact that some of the judges refused to participate in the interviews. Still, an interview was conducted on 11 February 2020 in the Ministry of Labour in Rome with the head of the Italian Court of Cassation on labour law matters Giuseppe Bronzini. There were specific questions prepared in advance, in relation to age discrimination in Italy and the EU, including the role and the influence of the European Court of Justice jurisprudence. This was a semi-structured interview. Some parts of the interview, which are the most relevant for the research, are included in this thesis. Mister Bronzini provided his consent on this.
Another expert interview was conducted with David Bakker, the employee of the Dutch anti-discrimination agency. The interview was held by the telephone on 17 March 2020. The questions were sent to the expert in advance. A summary of the interview was sent to Mr. Bakker per email, and his approval was received to include the results of the interview in the thesis.
Further, it was decided to design a questionnaire for the national equality bodies of the Netherlands, Italy and France. In particular, national equality bodies are responsible for monitoring and reporting on discrimination issues, and providing a contribution to the awareness of rights and value of equality in society. They are required to do so by law in relation to discrimination grounds covered by European Union law.24 Questions were asked specifically about the number of age discrimination complaints, the competences of equality bodies when it comes to age discrimination and suggestions on improving the situation on age discrimination. The Dutch equality body agreed to cooperate and provided its reply, the Italian equality body provided a partial reply and no answer was received from the French equality body.
Chapter 2 of the present thesis will commence with a discussion of the principle of non-discrimination and its place in the law of the European Union. Furthermore, the analysis will continue with an examination of the legislative framework on age discrimination and social policies at the European level targeting old and young people.
A study of the European Court of Justice cases is vital for the understanding of age discrimination in the European Union.25 Thus, chapter 3 will be devoted to the analysis of the case law of the CJEU, in a thematic manner, which interprets EU law provisions relating to age discrimination. Further, the analysis of age discrimination of three particular countries (the Netherlands, Italy and France) will be
24 Equinet, ‘Equality bodies’ <https://equineteurope.org/what-are-equality-bodies/> accessed 4 March 2020
25 F Hendrickx, ‘Setting the scene: Development of CJEU Jurisprudence on age discrimination in employment’ in S Manfredi, L Vickers (eds), Challenges of Active Ageing Equality Law and the Workplace Palgrave Macmillan 2016
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performed. The laws, social policies and case law on age discrimination will be examined. The choice of countries has been made based on the criterion of ‘the most similar cases logic’. 26 Firstly, the Netherlands, Italy and France are the founding Member States of the EU. Secondly, as research reveals, age discrimination in these countries is particularly widespread and considered as quite a serious issue.27 Thirdly, in each of the chosen countries, the elderly represent a large share of the total population, and the question of dealing with an ageing population is becoming more and more important.28 Chapter 4 will examine the situation in the Netherlands, chapter 5 will be devoted to Italy and chapter 6 will discuss the situation in France. Finally, conclusions will be formulated in the final chapter 7.
The present work brings a contribution to the current scholarly research. First, analysis is devoted to age discrimination among both older and younger people, while most of the research on the topic is mainly concentrated on older people. Topics of discrimination against and inequality of young people have a medium to low focus for a majority of equality bodies in the EU, often because of limitations in their mandate, under-reporting, lack of casework, and limited data.29 The present thesis will enrich the scholarship regarding the inequalities of young people.
Second, the outcome of the work presents concrete recommendations that can be applied at the European level in order to enhance the protection against age discrimination. The present work introduces solutions on how to improve the EU framework concerning age discrimination in order to more effectively combat this negative phenomenon. Third, the author provides a detailed examination of the situation regarding age discrimination in the Netherlands, Italy and France, which includes complex analysis of laws, case law and social policies. The results of such analysis reveal problems related to age discrimination and will serve as the basis for proposals on effective solutions to combat age discrimination in these countries.
26 R Hirschl, ‘The Question of Case Selection in Comparative Constitutional Law’ (2005) American Journal of Comparative Law 125
27 Regarding Italy please see O Rymkevitch, ‘ Italy’ in M Sargeant (ed), The law on age discrimination in the EU, Kluwer
Law International 2008; on the Netherlands see Art.1, ‘LEEFTIJDSDISCRIMINATIE,EENSERIEUSPROBLEEMOP
DE ARBEIDSMARKT’ (2015) <https://www.art1middennederland.nl/leeftijdsdiscriminatie-een-serieus-probleem-op-de-arbeidsmarkt/> accessed 7 December 2018; on France please see HR voice, ‘Suis-je trop âgé pour travailler, l’âge premier facteur de discrimination en France’ (2018) < https://www.hr-voice.com/communiques-presse/suis-je-trop-age-pour-travailler-lage-premier-facteur-de-discrimination-en-france/2018/03/08/> accessed 7 December 2018
28 https://www.statista.com/statistics/1105835/share-of-elderly-population-in-europe-by-country/ 29 Equinet, ‘Equinet seminar-tackling age discrimination against young people’
<https://equineteurope.org/2019/equinet-seminar-tackling-age-discrimination-against-young-people-2/> accessed 20 September 2020
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2 Age discrimination laws and policies at the EU level
It is important to start the analysis of age discrimination in the EU with the examination of the EU legislative framework and social policies in this respect. This is the basis that forms and further develops the protection against age discrimination in the EU. In particular, the EU laws are the key factor for a solid strategy concerning age equality. This chapter is organised as follows. First, I will talk about the EU legislative framework of the equality principle. Then, I will examine EU laws on age discrimination paying special attention to the analysis of the Employment Equality Directive as it is the main piece of the secondary legislation concerning age. Further, I will discuss the proposal of the European Commission regarding the extension of the prohibition of age discrimination beyond the area of employment. Next, I will talk about the EU Pillar of social rights since it is essential to look at the area of age discrimination in a broader context of the development of EU social rights. Finally, the EU social policies are discussed as they (directly or indirectly) aim to combat discrimination among older and younger people.
2.1 EU legal framework on equality
Protection against discrimination plays an essential role in European Union law. More specifically, Article 2 of the Treaty on the European Union (TEU) says that the Union is founded on the values of respect of human dignity, freedom, democracy, equality, the rule of law and respect for human rights, including the rights of persons belonging to minorities. According to Article 3 TEU, the Union ‘shall combat social exclusion and discrimination, and shall promote social justice and protection, equality between women and men, solidarity between generations and protection of the rights of the child’.30 Moreover, Article 8 TFEU mentions that the EU shall strive to eliminate inequalities, and Article 10 TFEU states that ‘in defining and implementing its policies and activities, the Union shall aim to combat discrimination based on sex, racial or ethnic origin, religion or belief, disability, age or sexual orientation’. According to Article 151 TFEU, the Union and the Member States, having in mind fundamental social rights shall have as their goal ‘the promotion of employment, improved living and working conditions, so as to make possible their harmonisation while the improvement is being maintained, proper social protection, dialogue between management and labour, the development of human resources with a view to lasting high employment and the combating of exclusion’. Article 153 TFEU states that the EU shall support and complement the activities of Member States regarding social security and social protection of workers, equality between men and women with regard to
30
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labour market opportunities and treatment at work, the combating of social exclusion, to mention a few. 31
Next, equality provisions can be found in the Charter of the Fundamental Rights of the European Union (the Charter)32. Article 21 of the Charter contains a prohibition to discriminate based on the grounds of sex, race, colour, ethnic or social origin, genetic features, language, religion or belief, political or any other opinion, membership of a national minority, property, birth, disability, age or sexual orientation.
The principle of equality has been a part of European law from its early days. Still, only two grounds have benefited from equality or non-discrimination in the Treaty of Rome of 1957. The area of sex discrimination had an established legal basis in Article 119 (now Article 157 TFEU) creating the principle of equal pay between men and women for equal work. The inclusion of this provision into the Treaty was motivated by economic considerations. The Member States, particularly, France aimed to eliminate distortions in competition between undertakings established in the different Member States. France had introduced provisions on equal pay for men and women much earlier, and it did not want that cheap female labour in other Member States would put French undertakings and the economy at a disadvantage.33
The Equal Pay Directive of 197534 made a confirmation that Article 119 contained a principle of ‘equal value’: women’s work could be rated as of equal value to that performed by the man. 35In 1976, in the ruling on Defrenne v Sabena, the CJEU stated that Article 157 TFEU has a horizontal direct effect and therefore enforceable not merely between individuals and the government, but also between private parties36.
The Treaty of Rome (EEC) did not contain a general principle of non-discrimination on grounds of sex37, whereas nationality discrimination was prohibited through the entire scope of the Treaty. Article 7 EEC specified that ‘within the scope of application of this Treaty, and without prejudice to
31 Consolidated Version of the Treaty on the Functioning of the European Union [2008] OJ C 115/47 32 The Charter of Fundamental Rights of the European Union OJ [2012] C 326/391 consolidated version
33 S Prechal, ‘NON-DISCRIMINATION DOES NOT FALL DOWN FROM HEAVEN’: THE CONTEXT AND
EVOLUTION OF NONDISCRIMINATION IN EU LAW’ Eric Stein Working Paper No 4/2009
34 Council Directive 75/117/EEC of 10 February 1975 on the approximation of the laws of the Member States relating to the application of the principle of equal pay for men and women [1975] OJ L 45/19
35 A C L Davies, Perspectives on Labour Law (CUP 2004)
36 Case 43/75 Gabrielle Defrenne vs Belgische Luchtvaartmaatschappij NV Sabena [1976] ECR 455 (Defrenne II) 37 S Prechal and N Burrows, Gender Discrimination of the European Community (Dartmouth 1990) 10
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any special provisions contained therein, any discrimination on grounds of nationality shall be prohibited’.
EU anti-discrimination law has developed further and the Treaty of Amsterdam of 1997 in Article 13 introduced a specific power to combat discrimination on a wide range of grounds of sex, racial or ethnic origin, religion or belief, disability, age or sexual orientation. This had a significant impact and led to positive developments in the field of equality law, including the introduction of the Employment Equality Directive according to which age is classified as a protected ground of non-discrimination in the field of employment and occupation. In the same year, the EU has adopted Council Directive 2000/43/EC prohibiting discrimination on the grounds of racial or ethnic origin38 ( the Racial Equality Directive) together with the Action Programme to combat discrimination. 39 After the creation of a new competence for immigration and asylum law in the EC Treaty (also in 1999), some Directives were adopted, which are mainly related to the equal treatment of third-country nationals based on their immigration status. Next, EU labour law has completed a package of Directives on ‘atypical’ work. They established the equal treatment principle in respect of part-time, fixed-term, and agency workers. 40
Further, Directive on equality between men and women was revisited, which resulted in Directive 2006/54/EC on the implementation of the principle of equal opportunities and equal treatment of men and women in matters of employment and occupation.41 Next, Council Directive 2004/113/EC of 13 December 2004 was introduced, which implements the principle of equal treatment between men and women in the access to and supply of goods and services. 42
It is further important to note that the Court has gradually expanded the possibilities for individuals to rely on the principle of equality as asserted in the Treaty against other individuals, starting from the 1970s and culminating in the late 1990s. 43One of the good examples of the so-called
38 Council Directive 2000/43/EC of 29 June 2000 implementing the principle of equal treatment between persons irrespective of racial or ethnic origin [2000] OJ L 180
39 E Howard, ‘The EU Race Directive: time for change?’ (2007) 8 International Journal of Discrimination and the Law 237, 237
40 M Bell, ‘The principle of equal treatment: widening and deepening’ in P Craig and G de Búrca (eds) The Evolution of EU Law (OUP 2011)
41 Directive 2006/54/EC of the European Parliament and of the Council of 5 July 2006 on the implementation of the principle of equal opportunities and equal treatment of men and women in matters of employment and occupation [2006] OJ L 204 (Recast Directive)
42 Directive 2004/113 implementing the principle of equal treatment between men and women in the access to and supply of goods and services [2004] OJ L 373/37
43 E Muir, ‘The Essence of the Fundamental Right to Equal Treatment: Back to the Origin’ (2019) 20 German Law Journal 817
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transformative function of the principle is present in the wording of the Angonese case that is related to discrimination on grounds of nationality.
The Court stated that:
Article [45 TFEU] lays down a fundamental freedom and . . . constitutes a specific application of the general prohibition of discrimination contained in [Article 18 TFEU]. In that respect, like Article [157 TFEU], it is designed to ensure that there is no discrimination on the labour market . . . Consequently, the prohibition of discrimination on grounds of nationality laid down in Article [45] of the Treaty must be regarded as applying to private persons as well44 In the Defrenne II and Angonese cases, the dormant transformative function of EU equality law was revealed, which aims to achieve ‘inter-personal equality per se.’ 45 Such judicial transformation of the role of equality law is commonly regarded as the transition from an economic understanding of the prohibition of discrimination to that of a social approach46. Indeed, the first set of references to non-discrimination was primarily driven by the goal of market-making for goods, services, and legal and natural persons, as well as capital. In this regard, the principle of equality is framed in terms of non-discrimination on grounds of nationality and is designed to eliminate boundaries progressively for economic entities among the Member States. Another set of references to equality was developed after the original framework defined the four freedoms and the necessary property rights as well as the economic freedoms. These provisions can be found in primary and secondary law, and they belong to the policies driven by the aim to promote further equality among the people of Europe.47 EU equality law has evolved, especially when compared to the initial mandate of the principle of equality presented in the Rome Treaty and other EU policies. As Muir stated, EU equality law has been shaped into an instrument designed to combat different unwanted societal practices 48 and is aiming to regulate not only public but also private relationships.De Witte pointed out that anti-discrimination laws (such as the Racial Equality and Employment Equality Directives) have changed the legal landscape of Europe. First, they have reduced the emptiness of the equality formula by introducing new suspect grounds of discrimination, which before were not regarded to give particular cause of concern. A good example is age that was included as a protected ground in 2000. Second,
44 Case C-281/98 Angonese, paras. 35–36
45 E Muir, ‘The Essence of the Fundamental Right to Equal Treatment: Back to the Origin’ (2019) 20 German Law Journal 817, 826
46 M BELL, ANTI-DISCRIMINATION LAW AND THE EUROPEAN UNION (OUP 2002)
47 E Muir, EU Equality Law. The First Fundamental Rights Policy of the EU (OUP 2018)
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besides the substantive rules on direct and indirect discrimination and harassment, European anti-discrimination laws pay attention to the organization of special procedures and remedies to permit the effective application of the substantive rules. For instance, the Racial Equality Directive establishes that the member states must create new public bodies, or designate existing bodies, to promote equal treatment irrespective of race or ethnic origin in order to play a monitoring role. Also, they must provide assistance to victims of such forms of discrimination. Third, anti-discrimination laws have extended the equal treatment obligations horizontally imposing not only on the state and public authorities but also on private persons a duty not to discriminate in the areas covered by the directives. Forth, European anti-discrimination laws benefit from the special legal qualities of EU law, such as its direct effect and primacy within the legal orders of the Member States. Thus, EU law serves as a standard against which the laws of the Member States can be reviewed by national courts. This makes EU law generally more effective than international human rights treaties. Finally, anti-discrimination laws restrict the ambiguity and vagueness of the equality principle and limit, for both the national legislator and judge, the range of acceptable interpretations of equality.49
I agree with Sciarra that the establishment of the general framework for equal treatment in employment, and combating discrimination based on race and ethnic origin, are considered as important achievements. The anti-discrimination law has developed into a coherent set of norms. 50 In this regard, we can observe not only the development of equality law, but also the evolution of EU social policy, which found its expression in anti-discrimination law.
In spite of this progress in the area of EU equality law, some research has exposed weaknesses in this field. For example, EU primary law only offers the possibility to introduce anti-discrimination measures, but it does not impose an obligation to do so. Further, positive action is allowed only upon the unanimous agreement of all the Member States of the European Council51, taking into account the EU competences and the principle of subsidiarity. These limitations give broad discretion to EU bodies and the Member Statesto decide whether an action is needed to address discrimination, and if so, what type of positive actions may be taken.52 Another weakness of current anti-discrimination
49 B De Witte ‘From a ‘Common Principle of Equality’ to ‘European Antidiscrimination Law’ (2010) 53 American Behavioral Scientist 1715, 1720
50 S Sciarra, ‘The European Union and Social Policy’ in D Patterson, A Sodersten (eds.) A companion to European Union law and international law (Wiley 2016)
51 Article 19 (1) TFEU
52 N Georgantzi, ‘The European Union’s Approach towards Ageism’ in L Ayalon L, C Tesch-Römer (eds) Contemporary Perspectives on Ageism (Springer 2018)
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law, addressed by Bell, is that discrimination grounds are compartmentalized into isolated spheres.53 Some research has expressed sensitivity to the reality of ‘intersectionality’54, i.e., the overlapping experience of discrimination in terms of personal identity and the ways in which this discrimination is manifested. The process of expanding anti-discrimination law should be a good platform for law and policy to engage with inequalities connected to multiple grounds. Schiek suggested that intersectionality should be taken into account more seriously. For example, discrimination on the grounds of caring for a disabled child has both disabled and gender discrimination aspects, and requires more robust attention than these forms of discrimination separately. 55
F
inally, related to the broader issues of EU social acquis, are the problems of enforcement.Some vulnerable domains in the workforce most in need of protection are those less likely to activate the network of norms that may be of help to them. This is due to the lack of information, expertise and resources available to engage in this process. The enforcement mechanism of EU acquis does not contain specific requirements, only general duties to provide effective protection of EU rights. The existing research refers to the necessity to strengthen enforcement mechanisms. 56The non-discrimination laws consist of establishing the illegality of distinctions on the basis of the motives that trigger them. The purpose of this law is, as correctly noted by Antoine Lyon-Caen, to eradicate the attitudes, decisions, standards which result from such distinctions. 57 I believe that it is important for legislators to be aware of this purpose when designing equality laws.
2.2 Age discrimination and the Employment Equality Directive
The importance of age discrimination laws can not be underestimated since they can achieve two broad goals.58 Firstly, they can secure instrumental economic ends, for instance, being used as relieving pressure on the pension systems from demographic ageing. Secondly, the laws can achieve
53 M Bell, ‘The principle of equal treatment: widening and deepening’ in P Craig and G de Búrca (eds) The Evolution of EU Law (OUP 2011)
54 See K Crenshaw, ‘Demarginalizing the Intersection of Race and Sex: A Black Feminist Critique of
Antidiscrimination Doctrine, Feminist Theory, and Antiracist Politics’ in A Phillips (ed), Feminism and politics (Oxford University Press, 1998) 314
55 D Schiek, ‘Organizing EU equality around the nodes of race, gender and disability ’ in A Lawson, D Schiek (eds.) European Union Non-Discrimination Law and Intersectionality: Investigating the Triangle of Racial, Gender and
Disability Discrimination (Routledge 2011)
56 S Garben, C Kilpatrick and E Muir, ‘Towards a European Pillar of Social Rights: upgrading the EU social acquis’ < https://www.coleurope.eu/ > accessed 21 September 2020
57A Lyon-Caen, ‘ Variations sur la discrimination ou le pluriel derrière le singulier’, in G Borenfreund, I Vacarie , Le droit social, l’égalité et les discriminations (Dalloz, Thèmes et commentaires 2013) 52
58 A Blackham, Extending Working Life for Older Workers: Age Discrimination Law, Policy and Practice (Hart Publishing 2016)
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intrinsic ends, by recognising the inherent dignity of all individuals of all ages. Age discrimination can be instrumentally useful in various settings reflecting the ‘double bind’ between the instrumental and intrinsic goals of age discrimination law. 59 In my opinion, the fulfilment of intrinsic goals is extremely important, especially in the field of employment law. Achieving intrinsic goals may safeguard the welfare of employees, which is considered as one of the central purposes of employment law. ‘Welfare’ in the context of employment law corresponds to the idea of the protection of the social rights of workers. 60Therefore, when we are talking about age discrimination laws in employment, it is essential that such laws guarantee the protection of social rights of workers. In the TFEU there are no specific provisions that target older workers or persons. Still, Article 25 of the Charter states that ‘the Union recognises and respects the rights of the elderly to lead a life of dignity and independence and to participate in social and cultural life.’ There are provisions of the Treaty which address the issues of youth. Article 47 TFEU states that ‘Member States shall, within the framework of a joint programme, encourage the exchange of young workers.’ Additionally, Article 165 can be mentioned, which says that the actions of the European Union shall be aimed at, among other things, ‘encouraging the development of youth exchanges and of exchanges of socio-educational instructors, and encouraging the participation of young people in democratic life in Europe’.
When it comes to secondary law, the Employment Equality Directive is the main legal instrument that addresses age discrimination. The recitals of the Directive recognise the importance of combating age discrimination in employment, emphasise how it can harm individual equality rights. Recitals 8 and 25 refer to the EU Employment Guidelines, which call for supporting older workers in order to increase their participation in the labour force. Protection against age discrimination is considered as ‘an essential part of meeting the aims set out in the Employment Guidelines and encouraging diversity in the workforce’.61 The recitals mention the importance of the fundamental rights of dignity and equality and recognise that unjustified discrimination based upon stereotypes and prejudice violates these basic individual rights. 62
59 F Hendrickx, 'Age and European Employment Discrimination Law' in Frank Hendrickx (ed), Active Ageing and Labour Law: Contributions in Honour of Professor Roger Blanpain (Intersentia, 2012) 3, 21
60 P Davies, M Freedland ‘Labour markets, welfare, and the personal scope of employment law’ (2000) 16 Oxford
Review of Economic Policy 1
61 Recital 25 62 Recital 4 to 6
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The main purpose of the Directive as specified in Article 1 is to ‘lay down a general framework for combating discrimination on the grounds of religion or belief, disability, age or sexual orientation as regards employment and occupation, with a view to putting into effect in the Member States the principle of equal treatment’. It protects all employees at all stages of employment against direct or indirect discrimination and applies to conditions for access to employment, self-employment or occupation; to vocational guidance and training; to employment and working conditions, including dismissals and pay; and to membership of and involvement in a trade union or an employer’s organization. The Directive does not define the term ‘age’, but the protection against age discrimination covers all ages: EU law applies to both old and young people. To make a comparison, in the United States the Age Discrimination in Employment Act does not protect the workers under 40 years old. 63
Concerning the legal position relating to discrimination, most of the Member States did not have specific age discrimination laws before the introduction of the Employment Equality Directive64. Those European countries, whose laws contained some reference to age discrimination had to reinforce their laws with the introduction of the Employment Equality Directive to be compliant with it. For example, Belgium introduced a law prohibiting the use of age as a criterion in recruitment and selection in 1998, such law aimed at providing a motivation for employers to reconsider their personnel policies and practices more generally.65 In order to implement the Employment Equality Directive, in 2007 it further adopted the Anti-Discrimination Act.
In Poland age discrimination was prohibited since 1996, however, the law did not seem to have a big practical impact due to the lack of proper sanctions.66 To fully implement European Directives, the Polish government adopted the Act on the Implementation of Certain Provisions of the EU in the Field of Equal Treatment, which entered into force on 1 January 2011.67 Research suggests that discrimination on the ground of age has started receiving more attention in the Polish context. In the last couple of years, the initiatives of the Ombudsman have resulted in more research and reporting.
63 https://www.eeoc.gov/laws/types/age.cfm
64 Eurofund, ‘Overview of the implementation of the framework equal treatment Directive’ (2004)
<https://www.eurofound.europa.eu/observatories/eurwork/comparative-information/overview-of-the-implementation-of-the-framework-equal-treatment-directive>accessed 29 June 2018
65 Eurofund, ‘Industrial relations and the ageing workforce: a review of measures to combat age discrimination in employment’(October 2000)< https://www.eurofound.europa.eu/publications/report/2000/industrial-relations-and-the-ageing-workforce-a-review-of-measures-to-combat-age-discrimination-in> accessed 4 December 2018
66 J Lahey, ‘International Comparison of Age Discrimination Laws’ (2010) 32 SAGE Journals 679 67 L Bojarski, Non-discrimination Poland 2016 (Publications Office of the European Union 2016) 6
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In 2013, the Minister of Labour appointed a Council for Older People’s Policy which prepared the guidelines for long-term policy on older people for 2014-2020.68
Although considered as a late bloomer in the area on non–discrimination law, by 2008 Swedish domestic law contained a considerable amount of explicit prohibitions on discrimination that could be found in seven specific acts. These acts have been repealed and replaced with the Discrimination Act (2008:567). The main purpose of this law was to combat discrimination and, in other ways, promote equal rights and opportunities regardless of sex, transgender identity or expression, ethnicity, religion or other belief, disability, sexual orientation or age. On 1 January 2013 a new law entered into force extending the protection against discrimination on the ground of age to the fields of goods and services including housing; meetings and public events; health, medical care and social services; social and unemployment insurance and financial aid for education; and public sector employment.69 The Discrimination Act has been adapted to the proposed Directive COM 2008/42670, and therefore goes beyond what is currently required by European law. To this end, we can say that the Employment Equality Directive gave an incentive to the Member States to introduce or further develop age discrimination laws.
Moreover, the Employment Equality Directive created enforcement possibilities in the area of age discrimination with a large number of cases reaching the European Court in Luxembourg. In one of its notorious decisions Mangold v Helm, the European Court of Justice has stressed the importance of the prohibition of age discrimination and stated that the principle of non-discrimination on grounds of age is regarded as a general principle of EU law.
Employment Equality Directive undoubtedly introduced important positive changes. It led to the coherence across the Union by establishing the minimum standards for all the Member States regarding the protection against age discrimination. Despite the positive developments in the area of age discrimination, some weaknesses and gaps in EU age discrimination laws can be observed. For instance, discrimination based on age, including direct discrimination, can be justified to a greater extent than discrimination on other grounds. To begin with the Employment Equality Directive that allows exceptions to all the grounds to which it applies - the grounds of religion or belief, disability, age or sexual orientation. Article 2(5) contains a general exception on public security and order, public health and the protection of rights and freedoms of others. Further, according to Article 4 (1),
68 Ibid, 5 69
P Norberg, Non-discrimination Sweden 2017 (Publications Office of the European Union 2017) 5-6 70 This proposal will be discussed in the following section
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it is allowed that a difference in treatment is justified for genuine and determining occupational requirements in case there is a legitimate aim and requirement is proportionate. Article 7 provides for exceptions with regard to positive action measures. Also, the Employment Equality Directive mentions special exceptions to the prohibition of discrimination on grounds of religion and belief. 71 Another example is Article 3(4) refers to the exceptions based on disability and age, and it permits the Member States to provide that the provisions prohibiting discrimination on the grounds of disability and age do not apply to the armed forces.
Further, the legislator decided to devote a separate article, Article 6, to the justifications of differences in treatment with respect to age. Article 6 (1) allows the Member States to provide that differences of treatment based on age will not be considered as discrimination ‘if’ within the context of national law, they are objectively and reasonably justified by a legitimate aim, including legitimate employment policy, labour market and vocational training objectives, and if the means of achieving that aim are appropriate and necessary’. In addition, in Recital 25 it is mentioned that specific provisions may vary in accordance with the situation in the Member States.
Article 6 (1) provides some examples (hence, a non-exhaustive set) of the type of differences of treatment based directly on age that may be objectively justified. Such differences of treatment may include, among others:
(a) the setting of special conditions on access to employment and vocational training, employment and occupation, including dismissal and remuneration conditions, for young people, older workers and persons with caring responsibilities in order to promote their vocational integration or ensure their protection;(b) the fixing of minimum conditions of age, professional experience or seniority in service for access to employment or to certain advantages linked to employment;
(c) the fixing of a maximum age for recruitment, which is based on the training requirements of the post in question or the need for a reasonable period of employment before retirement.
As can be seen, the article allows age-based distinctions if the use of these distinctions can be shown to be objectively justified by a legitimate aim and if the means of achieving that aim are appropriate and necessary. The wording of Article 6 (1) appears to be very vague. Some scholars
71
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labelled Article 6 (1) as ‘an open-ended possibility to justify age discrimination’ or a clause that ‘seeks to legalise age discrimination’. 72 Kajtar and Marhold 73 referred to ‘inherent vulnerability’, which was created in the field of age discrimination.
Article 6 (1) definitely refers to an ambiguous position of the Employment Equality Directive, which gives the Member States considerable freedom in designing national age discrimination law. This is also supported by the European Commission 2014 report, which clearly underlined that the derogation of Article 6 leaves considerable flexibility to the European Member States.74 Thus, it all depends on how effectively European countries transposed the text of the law prohibiting age discrimination.
When analysing the transposition of the Employment Directive, it is easy to note that there is a big variation among European countries: some Member States went beyond the requirements set by EU law, while others only met the minimum conditions. Article 6 is used by national policymakers in very different ways. Other Member States, including Austria, Cyprus, Greece, Malta, Portugal and Slovakia, have simply inserted the text of Article 6 of the Employment Equality Directive into their national laws. Meanwhile, Finland, France, Germany, Ireland, Italy, Luxembourg, Romania, Slovenia and the United Kingdom have provisions that resemble all or parts of Article 6. 75 Another important point is that the Member States could develop age discrimination policies taking into account justification exceptions provided in Article 6. Still, in order to analyse the effectiveness of such national measures, it is necessary to assess their coherence with the criteria set by the Employment Equality Directive, i.e., whether they are justified by a legitimate aim and achieved by appropriate and necessary means. However, this is quite a difficult exercise and as stated by the CJEU the suitability and the proportionality of the aims and means have to be analysed in every case separately. 76
The justification provided in Article 6 is quite unique as the Employment Equality Directive treats age in a different way than other discrimination grounds. More specifically, EU laws that prohibit
72 M Bell and L Waddington, ‘Reflecting on inequalities in European equality law’ (2003) 28 ELRev 349 73 F Marhold and E Kajtár, ‘The Principle of Equality in the EU Charter of Fundamental Rights and Age Discrimination. Hungarian and Austrian Experiences’ (2015) 6 ELLJ 321
74 Commission, ‘Joint Report on the application of Council Directive 2000/43/EC of 29 June 2000 implementing the principle of equal treatment between persons irrespective of racial or ethnic origin (‘Racial Equality Directive’) and of Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in
employment and occupation’ COM (2014)2 final 75
European Parliament, ‘The Employment Equality Directive. European Implementation Assessment’ (2016) < http://www.europarl.europa.eu/RegData/etudes/STUD/2016/536346/EPRS_STU%282016%29536346_EN.pdf > accessed 30 June 2018
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discrimination based on race or ethnic origin and sex do not leave room for many exceptions. For example, direct discrimination on the ground of race or ethnic origin regulated by the Racial Equality Directive, cannot be justified except in two explicitly specified circumstances given in the Directive: genuine and determining occupational requirements (Article 4) and a positive action (Article 5). Direct discrimination based on sex can be justified by ‘a genuine and determining occupational requirement, provided that its objective is legitimate and the requirement is proportionate’ (Article 14 (2) of Directive 2006/54).77 Therefore, only with regard to age and not with other protected characteristics, a wide range of exceptions to the principle of equal treatment is allowed. In my opinion, this is because quite often age discrimination is considered as something ‘normal’ and less serious than racism, gender inequality, for instance. Also, due to some particular characteristics of a job setting, age limits may be indeed acceptable. Still, this does not justify the exceptions for age discrimination. The protection against age discrimination is weaker and more complicated than other forms of discrimination. Moreover, provided the ambiguity of Article 6, the protection against age discrimination does not stand on an even ground with the other forms of discrimination.
There are other indicators that refer to the weaker position of EU age discrimination laws among other grounds. One such example relates to enforcement procedures. According to Article 9 of the Employment Equality Directive, there is a duty of Member States to make judicial and/or administrative procedures available to all persons who feel they were victims of discrimination. It is further stated that associations and organizations may support victims in bringing actions. The same provisions are stated in the Racial Equality and Recast Directives. However, in addition to this, these Directives put supplementary duties on Member States (Articles 13 and 20 respectively). Article 13 of the Racial Equality Directive states that ‘Member States shall designate a body or bodies for the promotion of equal treatment of all persons without discrimination on the grounds of racial or ethnic origin. These bodies may form part of agencies charged at a/the national level with the defence of human rights or the safeguard of individuals' rights.’ The functions of such bodies may include: assisting victims, conducting independent surveys, conducting independent surveys concerning discrimination, publishing independent reports and making recommendations. Such duties are not prescribed in the Employment Equality Directive. It means that the Member States only have to designate such bodies in the area of sex discrimination, racial or ethnic origin. Of course, Member
77
Directive 2006/54/EC of the European Parliament and of the Council of 5 July 2006 on the implementation of the principle of equal opportunities and equal treatment of men and women in matters of employment and occupation [2006]OJ L 204 (Recast Directive)
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States may, and as also supported by Article 8 of the Employment Equality Directive, go beyond the minimum requirements of the Directive, but there is no obligation to do so. In my view, such an obligation to designate equality bodies should exist in the Employment Equality Directive, the grounds mentioned in it should be addressed in the same way as sex or race. This would lead to more consistency in equality law and show more importance of the discrimination grounds covered by the Employment Equality Directive.
To this end, it is evident that age discrimination has some weaker position when compared with other grounds for discrimination. This can find some support in the literature. It was discussed that some forms of discrimination have privilege over others. The EU framework on anti-discrimination is diverse in relation to legislative instruments that are used to address different types of discrimination. The grounds, such as sex and racial and ethnic origin, are covered by specific directives, while other grounds such as sexual orientation, religion or belief, disability and age, are addressed in a multi-ground legislative instrument.78 According to Waddington, the fact that some grounds are protected in individual directives may in itself strengthen a hierarchical approach to non-discrimination in European law. 79 Fredman mentioned about the existence of the hierarchy of Directives and protection in the EU80. Referring to the Racial Equality and Employment Equality Directives, she stated that ‘the directives differ crucially in breadth’ 81. In a similar way, other scholars argued that racial equality is at the top of ‘the hierarchy of equalities’ protected by EU law.82 A similar opinion was presented by Meenan who stated that the race received the greatest protection in the EU and age received the least.83 Interestingly, Howard in one of her articles claimed that a hierarchy of discrimination grounds is not necessarily wrong and a more considered decision has to be made regarding which grounds require stronger protection. Still, in itself, the existence of a hierarchy between anti-discrimination grounds seems to contradict the EU commitments. For example, the original Green Paper (2004) on ‘Equality and Non-Discrimination in an Enlarged European Union’ stressed ‘the need to develop a coherent and integrated approach towards the fight against
78 P J Neuvonen, ‘‘Inequality in equality’ in the European Union equality directives: A friend or a foe of more systematized relationships between the protected grounds?’ International Journal of Discrimination and the Law 15 (2015) 222
79 L Waddington, ‘Future Prospects for EU Equality Law: Lessons to be Learnt from the Proposed Equal Treatment Directive’, European Law Review 36 (2011), 163–184
80 S Fredman, ‘Equality: A New Generation?’ (2001) 30 Industrial Law Journal 145 81 Ibid, 151
82 L Waddington and M Bell, ‘More Equal than Others: Distinguishing European Union Equality Directives’ (2001) 38 Common Market Law Review 587, 610; also see M Bell, Anti-discrimination Law and the European Union, OUP (2002) 32
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discrimination’. It also underlined that ‘[w]hile recognizing the specific challenges faced by different groups, this integrated approach is based on the premise that equal treatment and respect for diversity are in the interests of society as a whole’.84 A commitment to the equality of all grounds can be also found in the Council Decision establishing a Community action programme to combat discrimination (2001 to 2006). This document says that ‘the different forms of discrimination cannot be ranked: all are equally intolerable’. 85
Further, one of the main downsides of the current age discrimination law is that the Employment Equality Directive covers solely the field of employment and occupation. However, there are many other different areas in which society discriminates. Age-related discrimination may take place anywhere in society, outside of the area of work. For example, for the older generation, some forms of discrimination may occur in such areas as housing, health, in care homes, provision of social services. On the other hand, the Racial Equality Directive that prohibits direct or indirect discrimination based on racial or ethnic origin goes beyond the area of employment and covers also social security and healthcare, social advantages, education and access to and supply of goods and services that are available to the public, including housing (Article 3).
I agree with the scholars about the existence of so-called hierarchy in equality law. Unfortunately, age has a weaker position in comparison to other grounds. In my view, age discrimination should be regarded as a real discrimination. Age discrimination is not something less serious than race or sex discrimination. It has to receive the same protection as the other grounds.
2.3 Commission proposal on a new Directive
On 2 July 2008, the Commission adopted a proposal for a Council Directive on implementing the principle of equal treatment between persons irrespective of religion or belief, disability, age or sexual orientation (Commission proposal)86 with an objective to extend the protection against discrimination on these grounds to areas outside employment.
The Explanatory Memorandum accompanying the Commission proposal mentions:
The aim of this proposal is to implement the principle of equal treatment between persons irrespective of religion or belief, disability, age or sexual orientation outside the labour
84 Green Paper on Equality and Non-Discrimination in an Enlarger European Union COM (2004) 379
85 Council Decision of 27 Novemer 2000 establishing a Community action programme to combat discrimination (2001 to 2006) [2000] OJ L 303/23
86 European Commission, ‘Proposal for a Council Directive on implementing the principle of equal treatment between persons irrespective of religion or belief, disability, age or sexual orientation’, COM (2008) 426.
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market. It sets out a framework for the prohibition of discrimination on these grounds and establishes a uniform minimum level of protection within the European Union for people who have suffered such discrimination. This proposal supplements the existing EC legal framework under which the prohibition of discrimination on grounds of religion or belief, disability, age or sexual orientation applies only to employment, occupation and vocational training. 87
The proposed Directive duplicates those parts of the material scope of the Racial Equality Directive, which were not included in the Employment Equality Directive: social protection, including social security and healthcare; social advantages; education; access to and supply of goods and other services that are available to the public, including housing.88 It also proposes other improvements. For example, similar to the text of the Racial Equality Directive and Directive on gender equality, there is an obligation for the Member States to designate a body or bodies for the promotion of equal treatment. 89 The Proposal also replicates Article 6 of the Employment Equality Directive for age but unlike the Employment Equality Directive it does not give examples of the kind of differences in treatment that may be justifiable. The last sentence of Article 2.6 in the proposal reads ‘in particular this Directive shall not preclude the fixing of a specific age for access to social benefits, education and certain goods and services,’ which clarifies that age limits may be imposed for social benefits and for education, however, the reference to ‘certain goods and services’ is quite vague. 90
The commission proposal was rooted in the non-discrimination principle and the Charter. It was in line with the Lisbon Strategy for Growth and Jobs and was intended to bring possible benefits for the internal market. However, its main aims were to decrease the alleged hierarchy of discrimination grounds and bring EU law in line with the UN Convention on the Rights of Persons with Disabilities (UNCRPD). Thus, the instrument was regarded as a human rights tool that would overcome the ‘hierarchy’ of anti-discrimination grounds and would foster the coherence of equality law. 91 Still, according to Watson, the proposal will not bring ‘the protection offered to victims of discrimination of the grounds of age, religion or belief disability, or sexual orientation on all fours with victims of
87 ibid
88 Article 3 (1) 89 Article 12
90 H Meenan, ‘Reflecting on age discrimination in the European Union—the search for clarity and food for thought’ (2009) 10 ERA Forum 107, 123
91 E Howard ‘EU Anti-discrimination Law: Has the CJEU Stopped Moving Forward?’ (2018) 18 International Journal of Discrimination and the Law 59
