Case Law from Europe on Gender Equality

CASE LAW FROM EUROPE ON GENDER EQUALITY

Jonas Grimheden*

Paper for the Network Seminar on Gender and Law, Beijing, 26-27 September 2004, forming part of the EU-China Human Rights Network.

Case law in Europe on any human rights issue increasingly concerns two systems, that of the 45-member strong Council of Europe certainly but also that of the European Union with its now 25 member states. This paper elaborates case law on discrimination on the basis of sex from the two systems’ courts: the European Court of Human Rights and the European Court of Justice. This is done with the purpose of showing the development and status of equality in Europe, both its strengths and weaknesses. Before discussing the case law I give an overview of the relevant instruments and activities in the field and I conclude the paper with four suggestions for areas of discussion and comparison between EU and China at this seminar.

What started out as one ‘peace project’ after the Second World War soon became two projects with quite different agendas. The Council of Europe was the original organization for European integration and took its initial steps in the late 1940’s. As is now well known history, a core group of six countries decided to move ahead with integration in the field of essential production commodities (coal and steel and later also atomic energy) and a few years later the Treaty of Rome (1957) was adopted that founded the European Communities (EC (originally EEC)), that later (1993) expanded into the European Union (EU). The Council of Europe remained a separate entity however and developed its strong human rights and democracy profile, in particular with the adoption of the European Convention on Human Rights and Fundamental Freedoms in 1950 (1953). The EC on the other hand stressed economic integration and had no direct fundamental rights guaranteed in its treaties.

The European Union

The original EC-treaties did not provide for human rights but the preamble of the Treaty of Rome referred to the UN Charter. With the Single European Act (1986) democracy and human rights were however introduced in the preamble. The instruments of the EC and later the EU, as well as the case law of the European Court of Justice have increasingly come to consider human rights. This is perhaps most evident in the recently approved ‘Draft Treaty establishing a Constitution for Europe’ where the entire section II (out of three) consists of the Charter of Fundamental Rights of the EU of 2000. The EU has also previously committed to the European Convention on Human Rights and Fundamental Freedoms in treaty provisions (TEC A 6§2) and when, or if the new Constitutional Treaty comes into force, the Union will be enabled to also ratify the ECHR.1

* BA (in East and South-East Asian Studies/Chinese), LLB, LLM, LLD (from Lund University, Sweden), Senior Researcher at the Raoul Wallenberg Institute of Human Rights, Sweden; in the Fall of 2004 visiting researcher at the faculties of law of Niigata and Nagoya universities, and at the Institute of Comparative Law of Waseda University, Japan. The author wishes to acknowledge financial support for the present research period from the ‘Thunberg Scholarship’ of The Swedish Foundation for International Cooperation in Research and Higher Education (STINT). 1 The ECJ concluded some ten years ago (Opinion 2/94) that the EC could not accede to the ECHR, the new Constitution is designed to make this possible. Grimheden: Case Law from Europe on Gender Equality 2/8

The treaty basis for the development of case law on equality between men and women when it comes to the European Court of Justice (ECJ, based in Luxembourg) are articles 2 and 3§2 TEC (article 119 in the original EEC treaty specified equal pay for men and women), providing for gender equality as one of the tasks and equal treatment of men and women in employment, including means such as positive discrimination (article 141). According to the Treaty (article 13), the European Commission can also take initiatives to counter discrimination inter alia based on sex. A series of Directives has also been adopted by the Council in the field of non- discrimination prodding members states to better legislate areas such as equal pay (75/117), burden of proof in cases of discrimination based on sex (97/80), and equal treatment as regards employment (rev 2002/73). Not only the European Council but also the Commission and the Parliament have taken various decisions in order to promote non-discrimination based on sex.2 An overall program with a large budget (about €100,000,000) is also running until 2006 aimed at combating discrimination through inter alia analyses, awareness raising, and exchange of good practices. The Draft European Constitutional Treaty is in article 23§2 drawing on article 141 of the present treaty allowing for positive discrimination. Article 23§1 provides for equality between men and women as in articles 2 and 3 of the present treaty but is also based on the formulations of the revised European Social Charter (article 20) of the Council of Europe.3

Case Law

Most prominent in the EC development of human rights is the European Court of Justice (the mandate is limited to the EC parts and does not extend to the EU as of yet). The first cases of importance in the human rights development of the European Communities in the 60’s are now classics.4 The case law of the ECJ developed from first covering basically the provision on equal pay for men and women. As in the landmark case of Van Gend en Loos (1963) which opened up for ‘direct effect’ generally of Community legislation, Defrenne II (43/75) stipulated that also equal pay claims could be made directly before national courts.5 The court later concluded that comparison to determine equal pay did not necessarily have to be contemporaneously but claims could also be made in comparison with for example a predecessor.6 The Court also excluded areas and comparison that did not fall within the ‘equal pay’ provision: Equal employment conditions were not deemed to be included.7 The salary of a psychotherapist was for instance not deemed comparable to that of a medical doctor since the latter perform a wider range of duties.8 The concept of ‘pay’ in ‘equal pay’ has been 2 E.g., the Council promoted positive discrimination (affirmative action) in 1984 and adopted a resolution on the images of men and women in media, the Commission established an Advisory Committee (82/43) and adopted a Community Framework Strategy (2001-2005) aimed at among other things changing stereotypes through media and sports, and the European Parliament has established a committee on women’s rights and equal opportunities and commissioned various studies in the field. 3 For the sources of the Constitutional provisions, see http://europa.eu.int/comm/justice_home/unit/charte/en/charter02.html 4 In Klöckner-Werke (1962) equality was pronounced by the Court, with Costa v ENEL (6/64) European Community law was ruled supreme over national law, Stauder (26/69) declaring human rights as forming part thereof, and increasingly more detailed references to various aspects of human rights law and the relationship between national constitutional fundamental rights in eg Nold 4/73, Frontini ‘Purché’ (1974), and Solange II (Wünsche Handelsgesellschaft) (1987), see also Casagrande (1974) on human dignity. 5 See also Magorrian (246/96) back dating of equal pay is date of Defrenne II. 6 Macarthys (127/79). 7 Defrenne III (149/77). 8 Wiener Gebietskrankenkasse (309/97); other delimitations include self-employed can not necessarily claim equal pay Allonby (256/01), equal application may cause unequal effects Keck (267 & 268/91), and objectively Grimheden: Case Law from Europe on Gender Equality 3/8 defined in particular related to pension where retirement pension directly governed by legislation is not seen as pay.9 The equality concept has later on however come to include also pension schemes.10 Recruitment has been a key area given the possibility available of positive discrimination. The Court determined in the well-known case of Kalanke (450/93) that female applicants with equal qualifications to men could be given priority.11 To appoint a female candidate that was qualified but less so than a male applicant has consequently been excluded from possible positive discrimination.12 The latter case (Abrahamsson and Anderson) concerned the appointment of a professorship at a Swedish university and originated from an appeal committee on higher education. A preliminary ruling was requested from the Luxembourg court as to the scope of an EC Directive (76/207) and the consistency of Swedish legislation. The Swedish law was found to be too broad in scope. The case neatly summarizes the case law on positive discrimination recruitment by concluding that positive “action” to promote women in the public sector where they are underrepresented is compatible with European community law and can be used when male and female candidates have equal or almost equal merits while a preference for the underrepresented sex with sufficient but lower qualifications is not compatible with the principle of equal treatment. Parenthood has been another area of concern for the Court. The Court obviously has ruled out dismissal of pregnant women and has also extended protection to pregnant women employed on temporary contract.13 A woman who at the time of recruitment is pregnant is not obliged to inform the employer.14 Women can also be given extra benefits during maternity without this being considered unequal given their situation being different from that of men.15 Women must also not be excluded from possibilities of promotion due to inability of handling certain chores during the pregnancy.16 A number of other details have also been delimited by the Court concerning parenthood.17 The Court has also delimited the scope of equal treatment and what benefits may legitimately be given solely to pregnant women in some cases.18 Part time workers have been a special issue since women often constitute a large majority of this group. The Court has concluded that part time workers can be paid less per hour than full time workers since the difference is not based on sex. As long as the group receiving less is not predominantly made up of women the difference is acceptable.19 Should

quantifiable criterion based on physical effort (eg muscular in printing industry) to determine pay rate may be permissible, Rummler (237/85). 9 Defrenne I (80/70) while pre-retirement payment is, Defreyn (166/99). 10 Barber (262/88), see also eg German Pension Funds (379/99). Different pension ages for men and women have however been deemed acceptable, Burton (19/81), and different calculations for pensions as a result can follow, De Vriendt (377 & 384/96). 11 Reitterated in eg Marschall (409/95) and further delimited to areas where women are underrepresented in Badeck et al (158/97). 12 Abrahamsson and Anderson v. Fogelqvist (407/98), see also see also Schneider (380/01). 13 Brown (394/96) and Melgar (438/99) respectively. 14 Tele Danmark (109/00). 15 Abdoulaye et al v Renault (218/98). 16 Silke (307/98). 17 Inter alia the right to vacation even though vacation coincides with maternity leave, Goméz (342/01), inclusion of pay raise in maternity payment, Alabaster (147/02), and pro rata compensation of ‘Christmas bonus’ to employee on parental leave, Lewen (333/97). 18 In one case an employee on "minor employment" after the birth of child was refused ‘Christmas bonus’ since she was not covered by the general collective agreement for public-sector employees which was the basis for the Bonus, Krüger (281/97). The Court has also concluded that workers who resign to take care of the children when lack of child care can get lesser end-payment than someone who resigns for reasons important for the company, Gruber (249/97). 19 Jenkins (96/80). Grimheden: Case Law from Europe on Gender Equality 4/8 the difference in pay have a disproportionate effect on women it is not permissible.20 Related issues where the Court has ruled with the same effect are for instance ‘job-sharing’.21 Some professions have traditionally been reserved for men only, such as police and military. The Court established relatively early that such exclusion can not be based on grounds of demand by public opinion.22 Different recruitment criteria for men and women disadvantageous for women have not been deemed possible.23 A blanket exclusion of women from combat units of the armed forces has equally been prohibited while in certain cases exceptions can be made.24 Claimed indirect discrimination through favorable treatment of men completing military service is possible as a compensation for the service.25 Another issue has been the concept of ‘breadwinner’ where the man typically has been seen by member states as the head of the family. Already in Sabbatini (1971) was this pronounced by the court as an illegitimate basis for a rule.26 The issue has reoccurred in the case law of the Court.27 Other areas that have been dealt with regarding equal treatment are for instance Italian citizenship automatically being given to women upon marriage with Italian men but not vice versa and there was no choice for the women.28 Prohibition of night work for women has been another matter of consideration.29 A more recent case concerned retirement funds being available only to wives of handicapped husbands but not vice versa.30 In recent years discrimination on the basis of sex has also come to include transsexuals.31 The procedural aspects of discrimination on the basis of sex are of particular importance and interest. The standard and burden of proof is essential for redressing inequality. The Court decided in Danfoss (109/88) that if there is a non-transparent pay-structure and statistical evidence show a difference in pay for men and women the burden of proof shifts to the employer to justify the difference on other grounds than sex. Similar subsequent cases have called for “significant statistics” suggesting discrimination.32 Also, in the case of indirect discrimination, if criteria set to justify a level of pay give a significantly lower percentage of women the higher pay, this is discrimination unless other factors can account for the result.33 Among the procedural aspects is also an effective implementation. The Court has called for the guarantee of “real and effective” judicial protection with a “deterrent effect”.34 A right to compensation has also been established.35 The Commission has however needed to take countries before the Court for non-implementation or insufficiently so in a number of cases.36 Also on implementation, by way of example, the previously mentioned prohibition of night work for women in some countries, the Commission brought France before the Court. The Court ruled in 1997 that France was in infringement of the principle of equal treatment

20 Bilka-Kaufhaus GmBH (170/84), see also eg Schönheit & Becker (4 & 5/02) and Kording (100/95). 21 Hill (243/95). 22 Johnston v. Royal Ulster Constabulary (222/84) 23 Commission v France (318/86). 24 Kreil (285/98) and Sidar (273/97) respectively, where the latter exception concerned special forces used for rapid deployment as assault troops. 25 Schnorbus (79/99). 26 The UN Human Rights Committee dealt similarly with the Communication Zwann-de Vries (182/1984) 27 See e.g. Commission v Luxembourg (58/81) 28 Airola (1975) 29 Commission v France (197/96), see also 345/89, 312/86, 207/96. 30 Mouflin (206/00). 31 Grant (249/96), and subsequent cases granting right to pension to transsexual partner and in its extent the right to marry, KB (117/01), and transsexuality as an unjustified ground for dismissal P (13/94). 32 Enderby (127/92 ). 33 R (167/97). 34 Von Colson (14/83), see also e.g. Coote v Granada Hospitality (185/97). 35 Marschall (271/91), see also Draehmpaehl (180/95). 36 See e.g. Commission v Italy (207/96), v UK (165/82), v Denmark (143/83), regarding failure to mention ‘work of equal value’ with regards to the principle of equal pay, v Germany (248/83), and v Greece (457/98). Grimheden: Case Law from Europe on Gender Equality 5/8 through this legislative (Article L-213-1 of the French Labour Code) prohibition on night work for women but not for men and despite reminders, the French authorities had not given the Commission any timetable for amending their relevant legislation in order to bring it in line with Community law. The Commission therefore requested the ECJ to impose a daily fine of €142,425 for each day of non-compliance.37

Follow-up

On recommendation by the Parliament the Commission established a network of independent experts to assess human rights in the member states. So far annual reports have been submitted twice (2003 and 2004) by these experts and a synthesized version for the whole Union is also available.38 The reports list those countries who have not yet acceded to the relevant UN, ILO and CoE treaties, reservations made by various member states are highlighted, and positive and negative aspects are stressed. These reports are therefore of some value as exemplifying good practices and indeed bad such. Among the areas of concern when it comes to discrimination on the basis of sex in EU member states are the remaining remuneration gap between men and women (in all countries), the risk of being ‘punished’ by the employer if complaining of discrimination (Belgium), slow implementation of relevant legislation (Estonia), lesser protection through collective agreements for part-time workers (The Netherlands), cost of childcare preventing women from seeking employment (Ireland and Austria), and low representation of women in politics (Slovak Republic). Among the positive aspects highlighted are the introduction of systematic gender impact analysis of legislation adopted (Spain), the introduction of a constitutional basis for affirmative action (Italy), a national action plan for the advancement of women (Poland), and removal of barriers for women to enter special professions (Greece).

The Council of Europe

The case-law of in particular the European Court of Human Rights, based in Strasbourg, France, certainly remains the key human rights adjudicator and its case law has served as basis for decisions by the European Court of Justice on human rights issues.39 The European Court of Human Rights is also significant in other ways: It has been deemed a ‘world court’ by virtue of having its case law cited also by other prominent international courts and many national courts. The international criminal tribunals for Rwanda and former Yugoslavia have relied on case law from Strasbourg.40 National supreme courts, for example in Canada, South Africa, and India have relied on the jurisprudence of the ECtHR as well.41 The Council of Europe envisages equality on the grounds of sex as “an equal visibility, empowerment and participation of both sexes in all spheres of public and private life.”42 A special inter-governmental body has been established within the Council of Europe with the

37 Commission v France (197/96). 38 See http://europa.eu.int/comm/justice_home/cfr_cdf/index_en.htm# 39 See e.g. Baustahlgewebe Gmbh (185/95) on fair and public hearing by independent and impartial court, see also Dorsch Consult Gmbh (54/96) 40 See e.g. Čelebići (IT-96-21-T) of 4 September 1998; Kanyabashi (ICTR-96-15-A) of 3 June 1999. Note also the Special Court of Sierra Leone where the Appeals Chamber shall be guided by the case law of the Appeals Chamber of the ICTY and ICTR, as stipulated in article 20§3 of the Statute, www.sierra- leone.org/specialcourtstatute.html; consider also the application of the ECHR by the Bosnia & Herzegovina Human Rights Chamber. 41 See e.g. Anne Marie Slaughter, 2000, pp. 1109-1110; see also Lauri Lehtimaja and Matti Pellonpää, 1999, p. 227; the case law of the ECtHR also show many parallels with the jurisprudence of the United Nations Human Rights Committee and both these adjudicative organs make use of each others findings. 42 www.coe.int/t/e/Human_Rights/Equality/ Grimheden: Case Law from Europe on Gender Equality 6/8 sole purpose of promoting equality between men and women: the Steering Committee for Equality (SCE). It is mandated to in particular examine, promote, analyze, evaluate national practice, and propose measures. The Committee of Ministers has also adopted a Recommendation calling for gender mainstreaming in both the private and public sectors.43 In the more strictly legal sphere the European Social Charter includes a number of relevant rights such as equal remuneration, but also special protection of mothers. The Protocol of 1988 (into force 1992) also specifies in the first article the right to equal opportunities and especially in employment and careers. The revised Social Charter includes a non- discrimination clause on a variety of grounds including sex (article 20). The European Committee of Social Rights is responsible for monitoring the implementation of the state parties conformity with the Charter. On Sweden’s performance the Committee concluded in 2002 that the social security legislation entailed indirect discrimination in so far as part-time workers - mainly women - working roughly less than half-time were not covered by unemployment insurance. It noted that that this situation, which is not in conformity with Article 20 of the Revised Charter, was not modified during the reference period as it should have been. The Committee furthermore stressed that there is still segregation of the sexes in employment even though the government is taking appropriate steps of remedy. The Committee on a more positive note also mention that the female unemployment rate is below that of men (3,6% and 4,4% respectively) which is better than the European average and that there is a steady decline in pay difference between men and women.44 The European Convention on Human Rights prohibits in article 14 any "distinction" based, inter alia, on grounds of sex, in relation to the rights protected under the Convention and through Protocol No. 7 to the Convention the principle of equality between spouses as to their rights and responsibilities in marriage were added in article 5.45 Protocol No. 12 of 2000, not yet in force, also include discrimination on grounds such as sex in this general prohibition of discrimination.46

Case-Law

The Strasbourg Court has many parallel cases to those of the Luxembourg Court. Some cases have also been concerned with discrimination of men but they reflect a perception of women as more dependent. Foreign men had in UK greater difficulties in joining legally residing wives or fiancées than foreign women.47 In Switzerland men could not take their wives family name while vice versa was possible.48 Childless women over the age of 45 were not required to pay into a social fund while men were.49 In one case the government had cancelled a disability pension of a woman upon becoming mother since assumed she was then a house wife.50 Also the Strasbourg Court has dealt with pensions. The Dutch government argued that at the time the majority of the ‘breadwinners’ and that this justified different levels of pensions but the Court concluded a violation.51

43 Recommendation No. R (98) 14 of the Committee of Ministers. 44 Report of the Committee on Social Rights, 2002, p. 200 et seq. 45 Of 1984, entered into force 1 November 1998. 46 Needs 10 ratifications, at present 6 ratifications and 5 signature. 47 Abdulaziz et al v. UK (1985). 48 Burghartz v Switzerland (1994). 49 Van Raalte v The Netherlands (1997). 50 Schuler-Zraggen v Switzerland (1993). 51 Wessels-Bergervoet v The Netherlands (2002), see above and also the Human Rights Committee, Zwann-de Vries (182/1984). Grimheden: Case Law from Europe on Gender Equality 7/8

The Court has also accepted differences in treatment between men and women such as parental leave only for mothers while a common European right to parental leave for both men and women could not be established and it consequently fell within the magic ‘margin of appreciation’ of the member states.52 Cases show that the Court is careful to only conclude a violation when it really concerns a difference between men and women and not only an issue related to women.53 Also transsexuals have been at issue but the Court relied on the right to family under article 8 even though three dissents suggested it should also be treated as discrimination under article 14.54

The European Experience: Crucial Issues

Even though with a solid legal basis and the various promotional activities for non- discrimination on the basis of sex on the European level – and certainly at the national level as well, the case law show the extent and gravity of the lingering problem.55 The scope moreover, of issues that come before the court, ranging from pay to maternity matters to barriers in special professions is indeed wide. A number of issues appear as of especial importance in the European experience. Firstly, legislation, domestic and or international, on a general level is not sufficient. Action need to be taken on many levels and in many ways. Sweden introduced in 1992 with an upgrade of the relevant legislation from 1980 a monitoring system of the legislation itself. Most prominently an Equal Opportunities Ombudsman (EOO) was set up as an independent agency. The experience from this process is indeed positive. Criticism of inequality between men and women in the public or private sector attracts high media attention and through such ‘name-and-shame’ the impact is considerable. The EOO can also request fines (typically €25,000) on agencies or companies that do discriminate or that do not promote quality sufficiently by adopting the required gender policy (if more than ten employees) or for not providing disaggregated statistics on pay. Still, there are great difficulties for the EOO to prove discrimination and many cases that are brought to court end in settlements or are plainly lost.56 Among prominent cases is the comparison of salary of midwifes with that of clinical technicians. The salary for both groups was decided through collective agreements between employer and employees’ unions on the basis of central agreements. The work is similar but the Swedish courts concluded that the market require higher salaries for technicians. The European Court of Justice came to the same conclusion.57 It is indeed important to assure real and effective implementation (with due compensation) even though this is difficult in practice but various methods must be considered. Effective implementation at the national level is therefore closely related to a second issue, that of evidence at both national and international levels of adjudication. The burden of

52 Petrovic v Austria (1998), one of several dissents referred extensively to the inability of the EC (as of yet) to formulate a standard in the area. Also earlier the Court had concluded that no violation had occurred when the government was able to motivate the difference, Rasmussen v Denmark (1984). 53 See e.g. Fogarty v UK (2001) and Willis v UK (2002). 54 X, Y and Z v UK (1997). 55 For a comparison with China, see the interesting List of Issues by the UN Committee on Economic, Social and Cultural Rights in preparation for the State Report, 7 June 2004, especially on article 3: Equal rights for men and women, which list among many issues the need for sex-disaggregated statistics on pay and also on managerial positions in government. It calls for information on activities to address the representative imbalance in government, legislative bodies, and the judiciary. The List also follows up CEDAW’s concern over disproportionate illiteracy among women, especially in rural and remote areas and women of ethnic and religious minorities. 56 www.jamombud.se 57 236/98, see also Brunnhofer (381/99) on equal pay for equal work not necessarily equal because of label/title. Grimheden: Case Law from Europe on Gender Equality 8/8 proof in the European experience shifts, as discussed, in cases of alleged discrimination supported by statistics, so that the employer have to show non-discrimination. The existence of disaggregated statistics on men and women in both the private and public spheres are therefore essential. A third element of the European experience are the promotional activities, in particular positive discrimination (aka affirmative action) with due regard to maintaining the same qualification requirements so as to not give the impression of less qualified women. Also, the role model of the public sphere is crucial. That the government assures a reasonably well- balanced composition of men and women in areas within their powers is a basic tool. To also promote such balance, or if needed require it through legislation, in the private sector may follow consequently. By way of example, insurance policies offered by Swedish companies on injuries received due to violence exclude damages received by someone you live with – mainly women suffers from this (official authority covers costs however). Moreover, education and awareness raising at all levels and in all areas, from kindergarten to university and from the judiciary to company executives must also be assured. The Faculty of Law at Lund University required me once to revise the list of literature for a course since no woman were among the authors. To require a ‘gender impact’ on government studies as done in some countries may also be an avenue. The value of equality between men and women can in this way be reinforced. The fourth and last suggestion from the European experience seems to stress the need for international scrutiny of general legal status and practice on non-discrimination and well as importantly scrutiny of individual cases. Domestic courts, with the various appeals available, still are not resolving all the issues in the member states, as is evident from the many cases cited above.