ISSN 2212-5914 Justice and Consumers EUROPEAN COMMISSION Directorate-General for Justice and Consumers Directorate D — Equality Unit JUST/D1 European Commission B-1049 Brussels EUROPEAN NETWORK OF LEGAL EXPERTS IN THE FIELD OF GENDER EQUALITY European Gender Equality Law Review 2014 - 2 Directorate-General for Justice and Consumers 2015 Manuscript completed in February 2015. The information contained in this report reflects, as far as possible, the state of affairs on 1 September 2014. Editorial Board Susanne Burri Hélène Masse-Dessen Christopher McCrudden Linda Senden Production Susanne Burri Klaartje Hoeberechts Titia Hijmans van den Bergh Alice Welland Europe Direct is a service to help you find answers to your questions about the European Union. Freephone number (*): 00 800 6 7 8 9 10 11 (*) The information given is free, as are most calls (though some operators, phone boxes or hotels may charge you). This publication was commissioned by the European Commission under the framework programme PROGRESS (Decision 1672/2006/EC of the European Parliament and the Council, OJ L 315/1 of 15.11.2006). For more information on PROGRESS see: http://ec.europa.eu/social/main.jsp?catId=327&langId=en LEGAL NOTICE This document has been prepared for the European Commission however it reflects the views only of the authors, and the Commission cannot be held responsible for any use which may be made of the information contained therein. More information on the European Union is available on the Internet (http://www.europa.eu). Luxembourg: Publications Office of the European Union, 2015 ISSN: 2212-5914 © European Union, 2015 photos: www.morguefile.com Table of Contents Members of the European Network of Legal Experts in the Field of Gender Equality iii Editorial 1 Alice Welland Maternity Rights for Intended Mothers? Surrogacy Puts the EU Legal Framework to the Test 5 E. Caracciolo di Torella and Petra Foubert A False Start: Discrimination in Job Advertisements 12 Paul Post and Rikki Holtmaat EU Policy and Legislative Process Update 23 Alice Welland Court of Justice of the European Union Case Law Update 28 Alice Welland European Court of Human Rights Case Law Update 32 Alice Welland Court of Justice of the European Free Trade Association States Case Law Update 35 Alice Welland News from the Member States, EEA Countries, Former Yugoslav Republic of Macedonia and Turkey AUSTRIA Martina Thomasberger 37 BELGIUM Jean Jacqmain 38 BULGARIA Genoveva Tisheva 40 CROATIA Nada Bodiroga-Vukobrat 44 CYPRUS Lia Efstratiou-Georgiades 46 CZECH REPUBLIC Kristina Koldinská 49 DENMARK Ruth Nielsen 50 ESTONIA Anu Laas 50 FINLAND Kevät Nousiainen 52 FRANCE Sylvaine Laulom 55 GERMANY Ulrike Lembke 58 GREECE Sophia Koukoulis-Spiliotopoulos 62 HUNGARY Beáta Nacsa 66 ICELAND Herdís Thorgeirsdóttir 68 IRELAND Frances Meenan 70 ITALY Simonetta Renga 73 LATVIA Kristine Dupate 76 LIECHTENSTEIN Nicole Mathé 77 LITHUANIA Tomas Davulis 79 LUXEMBOURG Anik Raskin 80 FYR of MACEDONIA Mirjana Najcevska 81 MALTA Peter G. Xuereb 84 European Gender Equality Law Review – No. 2 / 2014 i THE NETHERLANDS Rikki Holtmaat 87 NORWAY Helga Aune 91 POLAND Eleonora Zielińska 93 PORTUGAL Maria do Rosário Palma Ramalho 97 ROMANIA Iustina Ionescu 97 SLOVAKIA Zuzana Magurová 99 SLOVENIA Tanja Koderman Sever 101 SPAIN María Amparo Ballester Pastor 103 SWEDEN Ann Numhauser-Henning 105 TURKEY Nurhan Süral 106 UNITED KINGDOM Aileen McColgan 108 ii European Gender Equality Law Review – No. 2 / 2014 Members of the European Network of Legal Experts in the Field of Gender Equality Co-ordinator: Susanne Burri, Utrecht University, the Netherlands Assistant co-ordinator: Alice Welland, Utrecht University, the Netherlands Executive Committee: Hélène Masse-Dessen, Barrister at the Conseil d’Etat and Cour de Cassation, France Christopher McCrudden, Queen’s University Belfast, the United Kingdom Linda Senden, Utrecht University, the Netherlands Susanne Burri, Utrecht University, the Netherlands National experts: Martina Thomasberger (Austria), Legal expert in the Vienna Chamber of Labour, Department for Social Security Jean Jacqmain (Belgium), Free University of Brussels, Faculty of Law and Criminology Genoveva Tisheva (Bulgaria), Bulgarian Gender Research Foundation Nada Bodiroga-Vukobrat (Croatia), Professor, Head of Jean Monnet Department of European Public Law / University of Rijeka, Faculty of Law Evangelia Lia Efstratiou-Georgiades (Cyprus), Advocate Kristina Koldinská (Czech Republic), Charles University, Faculty of Law Ruth Nielsen (Denmark), Copenhagen Business School, Law Department Anu Laas (Estonia), Institute of Sociology and Social Policy, University of Tartu Kevät Nousiainen (Finland) Helsinki University, Faculty of Law Sylvaine Laulom (France), University Jean Monnet, Saint-Etienne, Faculty of Law Mirjana Najcevska (Former Yugoslav Republic of Macedonia), University ‘Ss. Cyril and Methodius’, Institute for Sociological, Political and Juridical Research Ulrike Lembke (Germany), University of Hamburg, Faculty of Law Sophia Koukoulis-Spiliotopoulos (Greece), Attorney at Law Beáta Nacsa (Hungary), Eötvös Loránd University, Department of Labour and Social Law Herdís Thorgeirsdóttir (Iceland), Bifrost University, Faculty of Law Frances Meenan (Ireland), Barrister, Four Courts, Law Library, Dublin Simonetta Renga (Italy), Ferrara University, Faculty of Economics Kristīne Dupate (Latvia), University of Latvia, Faculty of Law Nicole Mathé (Liechtenstein), University of Vienna, Faculty of Law Tomas Davulis (Lithuania), Vilnius University, Faculty of Law Anik Raskin (Luxembourg), National Women’s Council of Luxembourg Peter G. Xuereb (Malta), University of Malta, Faculty of Law Rikki Holtmaat (the Netherlands), Independent Legal Consultant Expert Helga Aune (Norway), Attorney at Law Eleonora Zielinska (Poland), University of Warsaw, Faculty of Law and Administration Maria do Rosário Palma Ramalho (Portugal), University of Lisbon, Faculty of Law Iustina Ionescu (Romania), Independent Legal Advisor Zuzana Magurová (Slovakia), Slovak Academy of Sciences, Institute of State and Law Tanja Koderman Sever (Slovenia), Independent Legal Advisor María Amparo Ballester Pastor (Spain), University of Valencia, Faculty of Law Ann Numhauser-Henning (Sweden), Lund University, Faculty of Law Nurhan Süral (Turkey), Middle East Technical University, Faculty of Economics and Administrative Sciences Aileen McColgan (the United Kingdom), King’s College London European Gender Equality Law Review – No. 2 / 2014 iii Editorial Alice Welland∗ 2014 has been significant for the European Gender Equality Network. Earlier this year we celebrated 30 years of the Network, an occasion marked by two of our longest standing Members in an article published in the previous issue of the European Gender Equality Law Review.1 As this anniversary draws to a close, so too does this Gender Network as a separate and distinct organisation. The contract for the Gender Network between Utrecht University and the European Commission expired at the end of 2014, and a new single European network of legal experts in gender equality and non-discrimination has been formed. The expertise of the gender equality experts is maintained in the new network, which shall be composed of two separate streams of gender equality and non-discrimination. Human European Consultancy will be responsible for the general co-ordination of this new network. There are two specialised co-ordination teams; one on gender equality and one on non- discrimination. Dr. Susanne Burri (co-ordinator), Dr. Alexandra Timmer (assistant co- ordinator), and myself (assistant co-ordinator) of Utrecht University are responsible for the specialised co-ordination of the gender stream. Migration Policy Group is responsible for the specialised co-ordination of the non-discrimination stream. The existence of the two separate streams accurately reflects the chronological development of the EU equality directives, and acknowledges the necessity to maintain gender as a distinct ground of discrimination in its own right. The new European network of legal experts in gender equality and non- discrimination will produce an Equality Law Review, and for each of the 35 countries included in the new network one expert on gender equality and one expert on non- discrimination will report on national legislative and policy developments in their respective field.2 This is therefore the final issue of the European Gender Equality Law Review and the end of an era as we know it. 2014 has also witnessed the conclusion of José Manuel Barroso’s Commission, and the coming into office of the new European Commission, presided over by Jean-Claude Juncker.3 Despite this being the last issue of the Gender Equality Law Review, it provides the chance to reflect over what continuing challenges may confront the Juncker Commission. Issues such as unemployment, the on-going impact of the financial and economic crises, immigration, and escalating tensions in Ukraine dominate national and European headlines and agendas. However, between these issues (and more) lies gender inequality. Persistent and ubiquitous, blatant and nuanced, and damaging in both its consistency and variation; the consequences of gender inequality serve as a reminder to governments and organisations alike of the constant need to find intuitive and effective means to fight it. On 1 October 2014, the new Commissioner for Justice, Consumers and Gender Equality, Ms. Věra Jourová, made a number of commitments at her hearing before inter alia the Committee on Women’s