The Legislative Embedding of the Governance of EU Equality Law

Earlier chapters have warned against relying too heavily on a constitutional narrative to address the protection of fundamental rights in the EU. This indeed risks hindering political debate on fundamental rights at the European level. Chapter 5 sheds light on how certain features of EU law can in contrast be usefully exploited to support political debate and the development of a fundamental rights culture at the domestic level. One of the great added values of EU intervention in the field of fundamental rights protection lies in the procedural safeguards and governance tools available under EU law: they are remarkably advanced and sophisticated for a supranational organization seeking to combat fundamental rights violations. EU equality law and policy can in that sense be treated as a laboratory for the governance of fundamental rights steered at supranational level. Specialized watchdogs, such as equality bodies, may play a particularly interesting role. Furthermore, understanding specific EU policies as being intended to promote a fundamental right opens a vast area for comparative research across the given sectors of EU fundamental rights law, leading to a better grasp of how best to enhance the governance of these rights beyond state level. By way of experiment, this chapter explores the potential for legislative and jurisprudential cross-fertilization of the notion of independent fundamental rights guardians, such as equality bodies and data protection authorities, at the domestic level.

Distinguishing Legislation giving Expression to Fundamental Rights

The specificity of fundamental rights policy-making is that the superior legal value of the right enhanced through legislation creates an extraordinary appeal for a constitutional narrative, while the uniquely sensitive nature of EU intervention in the field warrants great political legitimacy. This tension between constitutional and legislative forms of protection reaches an apex when it comes to policy-making at the EU level on matters of fundamental rights. To what extent could challenges similar to those identified in the context of EU equality law in previous chapters arise in other contexts? Chapter 4 seeks to distinguish legislation giving expression to fundamental rights, where the relationship between constitutional and legislative rights is particularly intimate, from ‘ordinary’ legislation. This warrants an enquiry into the constitutional framework in which legislation is enshrined and to which it relates, as well as into the design of the relevant legislative framework. It will be argued that equal treatment clauses which are scattered across EU directives designed to ensure the protection of atypical workers and legally residing third-country nationals should be treated as clearly distinct from the primary right to equal treatment. In contrast, EU data protection law may be driven by dynamics comparable to those identified in relation to mainstream EU equality law. This is likely to lead to increased confusion between primary and secondary layers of norms in the field.

EU Equality Law at a Constitutional Crossroads

Each prong of EU equality law identifies specific grounds for differential treatment as well as specific fields in which differences of treatment are suspect. The precise applicable legal tools may—and often do—differ from one ground to the other and from one field to the other. Upstream, different legal bases, institutions, and procedures define the contours of the corresponding branches of EU equality law. Chapter 3 identifies the main components of this complex legal framework before analysing the competing role of the drafters of the Treaty, the EU’s judiciary, and political institutions in shaping EU equality law. The parameters of the doctrinal debate examined in the previous chapter are then used to revisit cases such as Barber, Grant, or Alimanovic as well as questions of judicial review (e.g. Test-Achats) and horizontal direct effect (Kücükdeveci) of the rules on equal treatment. It is submitted that three elements determine the pre-conditions for a healthy balance between the constitutional value of the relevant right, and the political dimension of decision-making on fundamental rights: the constitutional norm ought to explicitly call for political guidance, political institutions are invited to assert the policy implications of decision-making in the field, and the EU judiciary may have to refrain from palliating limits or imperfections resulting from the policy-making process.

Introduction

An intense debate was sparked in the late 1990s: should the EU become a ‘Human Rights Organization’? Twenty years later, in the midst of a migration, security, and economic crisis, the relevance of the debate has been anything but tempered. Despite the clear rejection of a general mandate for the EU in this field, over the past two decades competences have emerged to give shape to a given fundamental right. EU equality law provides a particularly useful example of such a policy. The principle of equal treatment has gained a particularly clear and forceful human rights connotation. It has also been encapsulated in a remarkably ambitious as well as homogeneous set of legislative instruments. As such specific fundamental rights competences and relevant areas of law have emerged despite the reluctance of the Member States to grant the EU a core human rights policy, the constitutional setting in which they are embedded today warrants investigation. What characterizes equality law today, as our key example, is twofold. First, the narrative on equality law is very often couched in constitutional terms. Second, the equality law directives adopted from the year 2000 onwards have brought in a diverse set of rules intended to support a change in mentality from within domestic legal and policy arenas. The EU, in developing legislation that shapes the content of a right deemed to be fundamental and that diversifies the governance tools for anchoring that right in our societies, has unique strengths as well as weaknesses.

Conclusion

Developing a fully fledged fundamental rights discourse is a delicate endeavour. Narratives of fundamental rights carry a notably authoritative and moralizing tone; yet, the precise limits of a given fundamental right, as well as its relationship to other fundamental rights, can swiftly become divisive. This paradox reaches an apex when the EU exercises competences that purport to flesh out a fundamental right. It is therefore in many ways unsurprising that EU equality law has in recent years been the forum for several high profile cases blurring the distinction between constitutional and legislative expressions of the right to equal treatment. The controversies surrounding these cases have important constitutional implications. EU law is a uniquely powerful supranational tool. When applied to fundamental values and to balances between them, this machinery may be perceived as very corrosive for domestic constituencies. Chapter 6 recalls that, besides constitutional forms of protection, political decision-making on fundamental rights also performs a very important legitimating function in a supranational legal order such as that of the EU. This function ought to be carefully preserved by the plurality of actors involved so as to stimulate legal innovation and to make sure to embed the fundamental rights culture supported by the EU in domestic legal cultures.

Checks and Balances in the Process of Fundamental Rights Law-Making in the EU

Equality law is an EU policy characterized by the coexistence of three types of norms: written law with constitutional value, unwritten law with constitutional value, and written secondary law. The existence of principles as well as rights enshrined in constitutional law distinguishes this policy from numerous others that depend entirely on the existence of legislation. The existence of rights entrenched in specifically related legislation also distinguishes the fundamental right to equal treatment from other fundamental rights only protected at the constitutional level. This chapter elucidates and reflects on the general characteristics of this web of rules. The existence of a multilayered set of norms for the design of a system of fundamental rights protection triggers important questions on what the appropriate institutional framework for fundamental rights protection in an integrated supranational legal order may be. The phenomenon by which EU institutions legislate specifically and explicitly in order to enhance the protection of a fundamental right is fairly recent. This opens up a new era after a period in which the focus had been on elevating fundamental rights beyond the realm of ordinary politics. This novel setting is characterized by a complex relationship between political institutions and constitutional adjudication, as explained by reference to the work of Jeremy Waldron as well as Alexander Somek.