Introduction

In exercising their power of review, it is not unusual for judicial organs – whether domestic or international – to turn to analytical tools against which the legality of the contested measure can be usefully tested. For instance, under the administrative law of many countries, it is quite common for domestic courts to test the legality of administrative acts with the aid of tools of review such as “proportionality,” “legitimate expectations,” etc. As seen in Chapter 6, as a tool of review proportionality is also applied by international courts including WTO organs. It was also mentioned in that chapter that the distinction between mandatory and discretionary legislation is one of the prominent tools that WTO adjudicative bodies apply in reviewing the compatibility of national laws with the WTO obligations. In this context, the shorthand expression “mandatory legislation” is used to refer to national legislation that requires the executive authority of a Member to act inconsistently with its WTO obligations; and the expression “discretionary legislation” is used to refer to legislation that does not require but gives the executive a discretion to act in a WTO-incompatible manner.

According to this distinction (throughout this chapter the word “distinction” is used to refer to the distinction between mandatory and discretionary legislation), a mandatory law by itself violates WTO obligations even if there is no specific application of the law. By contrast, a discretionary law cannot by itself amount to a violation of WTO obligations and a violation can occur only if the law is actually applied in a specific case and in a WTO-inconsistent manner.

Introduction

This chapter focuses on the development of sex equality law since the Amsterdam Treaty. The most important feature of the Amsterdam Treaty from the perspective of this book was of course the new Article 13, providing a legal basis for Community institutions to take action to combat discrimination not only on the grounds of sex but on a whole range of other grounds and within any area of Community activities. However, Article 2, as amended, Article 3(2) and Article 141 EC (see further below) are also of special interest to sex equality law, following the Amsterdam Treaty. It is also worth mentioning the new Title VIII (ex Title VIa) on employment introducing the ‘open method of coordination’ for employment guidelines now also extended to other areas of social cohesion. Finally, there is the inclusion of the Maastricht Social Protocol and the new rules on the Social Dialogue in Articles 137–139 EC. All of these new rules play an intrinsic role for the post-Amsterdam developments of sex equality law. To understand the development of sex equality law following the Amsterdam Treaty, its relationship with Article 13 EC and action taken on this basis it is, however, necessary to start with some remarks on the unique features of sex equality regulation in an EC law context and its roots pre-Amsterdam. After introducing these features, I will continue to describe the legal developments in the field of sex equality post Amsterdam only to end up in a discussion on the future implications of discrimination law developments in general for gender equality.

Introduction

As may have been noticed from the remarks made in this regard in the last chapter, different dimensions of WTO adjudicative organs' review of national measures/laws are the core and the recurring themes of this second part of the present work. However, before embarking on those issues, this chapter attempts to deal briefly with the problem of characterization that often arises in the context of WTO dispute settlement. Although it has not attracted much conscious attention, this problem also exists in other areas of public international law. In contrast to public international law, in the context of private international law, “characterization,” as discussed below, is a very well-known term of art used to describe a particular process in the selection of the applicable law.

Because the present exercise involves the borrowing of a term of art and its introduction in a new setting it may be useful as a starting point to discuss the meaning of the term more generally and likewise to make general references to the judicial faculties that may be described by the term. When it comes to meanings of words, dictionaries can of course be of some assistance. According to the Shorter Oxford English Dictionary “characterization” means “the action or result of characterizing; esp. (a) portrayal in words etc., description,” while the word “characterize” is defined inter alia as “describe the character or peculiar qualities of; describe as,” “represent, portray,” etc. In these senses it may not be an overstatement to say that the whole function of adjudication concerns characterization, i.e. characterization of facts (or rules of law) with reference to given legal concepts.

The tremendous growth of international law and the sharp increase in the number of international courts and tribunals during the second half of the twentieth century have led to many new features and avenues of interaction between national and international legal norms. In this context it is notable that, in the nineteenth and early twentieth centuries, critical analyses of the relationship between national and international law focused primarily on the theoretical debate known as monist–dualist controversy and on the position of international law in national legal systems. The latter concerned issues such as whether, to what extent and in what manner municipal courts in various countries make reference to or do apply rules of international law. Nowadays the questions of whether and how international courts and tribunals refer to, assess or apply rules of national law have become equally important.

Consider, for instance, the issue of the application of national law rules by international courts and tribunals. As may be recalled from Chapter 4, there are cases decided by the Permanent Court of International Justice where, instead of international law, a particular municipal law was applied by that Court as the applicable substantive law. However, the most fascinating jurisprudence and academic discourse concerning the application of national law by international courts and tribunals have come into existence not in the context of dispute settlement by the PCIJ or its successor, the ICJ. Rather, such jurisprudence and academic discourse have emerged in the context of arbitration of disputes between states and foreign companies under state contracts (commonly referred to as mixed arbitrations), largely a late twentieth-century development.

Part I

This volume is compiled at a remarkable time in the history of equality and anti-discrimination law in the European Union (EU). The EU has already achieved the expansion of its anti-discrimination grounds from just two under the E(E)C Treaty to seven following the Amsterdam Treaty, which incorporated Article 13 into the EC Treaty (EC). Article 13.1 EC empowers the Council to ‘take appropriate action to combat discrimination based on sex, racial or ethnic origin, religion or belief, disability, age or sexual orientation’. The first two Article 13 Directives, the Race Directive and the Employment Equality Directive are six years old at the time of writing and their implementation dates have all expired. The intriguing third such Directive, the Equal Treatment Directive between men and women in access to and supply of goods and services is already two years old. The European Court of Justice (ECJ) has delivered some early judgments on this newly expanded body of equality and anti-discrimination law. But we do not yet have the full measure of the challenges presented by the new anti-discrimination grounds. Nor do we have the full measure of diversity arising from combinations of protected grounds, much less the ability of the Article 13 Directives to deal with them. There is also the increased diversity introduced to the EU by the accession of ten new Member States in 2004, two new Member States in 2007 and future enlargements of the Union to consider.

Introduction

This chapter deals with two particular aspects of WTO adjudicative organs' review of national laws, namely, proof of national law and interpretation of national law. Both of these are related to the basic international law principle that national laws are facts before international courts and tribunals. The connection between proof of national law and the principle that national laws are facts is rather obvious. That is to say, because national laws are facts, judicial notice (pursuant to the maxim jura novit curia) does not apply to matters of national law. Instead, national law needs to be proved and an international tribunal will consider evidence of such law furnished by the parties, or, if necessary, may undertake its own researches. This dimension of the national law as facts principle is easily understandable and is genuinely reflected in the practice of international courts and tribunals – be it the PCIJ/ICJ, the ECHR, the WTO bodies or other international tribunals.

The issue of interpretation of national law by international courts and tribunals is less straightforward, or, to be exact, this issue has unnecessarily been shrouded in confusion. It is, of course, clearly and plainly the case that in a variety of circumstances international courts and tribunals need to interpret national laws. But despite this reality, it is sometimes suggested – as a corollary to the principle that national laws are merely facts – that an international tribunal “does not interpret national law as such.”

Introduction

This chapter provides an analysis of the evolving human rights and equality contexts within which the European Union (EU) equality and non-discrimination Directives were developed and continue to operate. Part I sets out a theoretical framework for considering the variety of differing conceptions of equality that we shall subsequently identify as operating in European equality and human rights law. We then trace how these differing approaches are seen in the differing areas of EU law in which equality features. Part II sets out the international, regional and domestic human rights law on equality and non-discrimination, which has played and will continue to play an important role in the development of EU human rights and equality law. In Part III we focus on human rights and equality in EU Law more specifically and place human rights in the context of EU values and objectives. The negotiations over treaty amendments between 2004 and 2007 played a vital part in shaping this role. A proposed new Constitutional Treaty bringing together the existing treaties failed to gain sufficient support. Instead, a European Council held in Brussels in June 2007 agreed a mandate for a somewhat less ambitious draft Reform Treaty, but incorporating many features of the proposed Constitutional Treaty, to be agreed by an Intergovernmental Council during 2007. In this context, we discuss the role of the Charter of Fundamental Rights in the continuing evolution of rights in the Community legal order.

Introduction

This chapter will examine the development of European equality law in the context of the emergence of sexual orientation as an equality law ground. Its focus will be an examination of the provisions of the Framework Directive as they particularly apply to sexual orientation discrimination and the rights of lesbians, gays and bisexuals (LGBs). It is considered necessary, when approaching new equality grounds, to take an integrated but differentiated approach integrated in the sense that many of the legal definitions (and practical implications) of new grounds are common to those of pre-existing grounds, but also differentiated in that each new ground presents issues and controversies which are particular to that ground. The latter perspective is not to endorse a hierarchy of inequality but rather to acknowledge the differences between them.

In this sense, at the level of European equality law, sex equality has been the ‘mainstream’ focus of attention for over 30 years. The main challenge of the Race and Framework Directives is partly to integrate the new equality grounds into established practices on recruitment, harassment, etc. But the second challenge is to appreciate that women, racial and religious minorities, the disabled, younger and older people and LGBs all face differing issues and that what has been a sensible approach to established grounds may need rethought and modification to deal with new grounds.

Introduction

This chapter explores one of the thorniest issues of WTO dispute settlement, namely that of the standard – or, in plural, standards – of review. Put simply, this involves the manner in which panels and the Appellate Body should review Members' measures for their conformity with the WTO obligations: the crucial issue is the degree of intensity, rigor, thoroughness or severity – or, alternatively, the lack of these – with which such measures are to be reviewed. Given the extent of coverage of the WTO obligations, their varying impact on the legislative, judicial and administrative competence of Members, the finesse and intricacy of questions of both fact and law that are put before panels and the AB (this list no doubt can be prolonged considerably), it is only natural that one particular standard will not be apposite in reviewing every national measure. Nor will the same standard be appropriate in resolving every issue in the course of such review. Thus, while the expression “standard of review” in its singular form is not an inaccurate description of the underlying problem, it should also be borne in mind that the benchmark of intensity, rigor, thoroughness or severity of review ought to vary for a number of reasons and so should the standard of review. To be sure, it is not a particular standard that WTO adjudicative bodies apply, but increasingly it is possible to identify a range of standards of review that are applied in practice – either explicitly or implicitly (more on these issues in section 5, below). From this perspective, the plural form of the expression is not inapt either.

Introduction – the emergence of the rights-based approach to disability in the EU

The main purpose of this chapter is to assess the significance and future potential of the Framework Employment Directive in the specific context of disability.

A recent report by the European Foundation for the Improvement of Living and Working Conditions on the status of persons with disabilities in Europe makes for sober reading. It recalls that disability (which it combines with chronic illness) affects 17 per cent of Europe's general population and about 15 per cent of the working population. Disabled people are reported to have twice the rate for non-participation in the labour market as compared to persons without disabilities. The unemployment rate for persons with a severe disability is about three times the level for non-disabled persons. Workers with disabilities typically receive a lower wage than others and segregation is reported to begin at an early age ‘with children often pushed into parallel education networks or otherwise excluded from mainstream society’.

Introduction

It is stated that the principles of equal treatment and non-discrimination are at the heart of the European Social Model. According to this view, they represent a cornerstone of the fundamental rights and values that underpin today's European Union. But does equality, in its legal and philosophical sense, have meaning without a human context? Can we discuss these concepts without anchoring the discussion within the lives and experiences of real people in a real world?

This chapter will argue that any discussion on the conceptualisation of equality and non-discrimination in the European Union has to be done within a concrete social context. When discussing and constructing the legal concept of ‘equality’, one cannot ignore the social context, in general, and the demographic context, in particular.

Equality in the European Union today cannot be understood without realising the unique social revolution that Europe is going through: a demographic revolution. Truly, a dramatic change in the last decade has led to unprecedented ageing in the population of Europe and other developed countries.

The WTO and its coverage

The coming into being of the World Trade Organization (WTO) on January 1, 1995 has been described as “a watershed moment for the institutions of world economic relations” and the international agreement that gave birth to this international organization has been viewed as “the most important event in recent world economic history.” The creation of the WTO lay in a trade negotiating round, namely the Uruguay Round of Multilateral Trade Negotiations (UR), that, in turn, has been described as “the largest and most complex negotiation concerning international economics in history” or even as “the largest and most complex negotiation ever.” None of these remarks may appear to be an overstatement if seen in the light of the WTO legal and institutional framework, which consists of about 30,000 pages of rules and concessions.

The Uruguay Round was launched in 1986 by the Contracting Parties of the General Agreement on Tariffs and Trade (GATT), the rather modest predecessor of the WTO, and, after eight years of negotiations by more than 120 nations, culminated in the signing of the Final Act embodying the results of the UR negotiations on April 15, 1994. The Final Act comprises the Marrakesh Agreement Establishing the World Trade Organization (WTO Agreement) and various Ministerial Decisions and Declarations. Set out in the WTO Agreement are the purposes and objectives of the WTO and its institutional framework.