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Published online by Cambridge University Press: 27 October 2017
Since the signing of the Treaty on European Union in Maastricht in 1992, calls have gradually been increasing for a greater recognition of, and firmer foundation for, fundamental (social) rights within the European Union. These calls naturally became louder following the Opinion of the European Court of Justice excluding the possibility of EC accession to the European Convention of Human Rights and during the lead up to the Amsterdam Intergovernmental Conference. Academics, independent EU Advisory Committees, groups representing the interests of EU citizens and residents and the European Parliament lamented the almost complete absence of fundamental social rights in the Treaty, and called for an ambitious revision of the Treaty. To a large extent these calls went unheard in Amsterdam, and the new Treaty does not incorporate a comprehensive list of social fundamental rights.
1 Opinion 2/94 concerning accession by the Community to the European Convention for the Protection of Human Rights and Fundamental Freedoms of 28 March 1996.
2 See for example Betten, L. and MacDevitt, D. (eds.), The Protection of Fundamental Social Rights in the European Union (Kluwer, 1996)Google Scholar.
3 See for example the Report of the Comité des Sages, For a Europe of Civic and Social Rights (European Commission, 1996).
4 The European Parliament’s 1995 Resolution on the IGC called for “an explicit reference in the Treaty to the principle of equal treatment irrespective of race, sex, age, handicap or religion”: OJ 1995 C151/56.
5 The provision was initially numbered 6a following the numbering of EC Treaty as used in the body of the Amsterdam Treaty. It is now commonly referred to as Article 13, in accordance with the renumbering of the Treaty which followed the Amsterdam revision.
6 In addition a number of directives have been adopted on the basis of Articles 94 (Article 100), 95 (Article 100a), 308 (Article 235) and the Agreement on Social Policy annexed to the Treaty on European Union. These directives deal primarily with equal treatment for men and women in the fields of employment and social security.
7 See eg the Commission Report of 10 May 1995 on the Operation of the Treaty on European Union, which identifies as one of the “major challenges for Europe” “to make Europe the business of every citizen”. The report appears in the White Paper on the 1996 Intergovernmental Conference, Volume 1, Official Texts of the European Union Institutions, (European Parliament, 1996). See also the “Citizens’ Europe” project: “Working in Europe”, which has arisen out of the work of the High Level Panel on the Free Movement of Persons, and Eur-op News 4/97.
8 Indeed the campaign of the European disability movement, which was focused around the annual European Day of Disabled Persons, referred to the notion of invisible citizens. See “Disabled Persons’ Status in the European Treaties: Invisible Citizens”, European Day of Disabled Persons 1995, D/1995/7560/2 and “How can Disabled Persons in the European Union Achieve Equal Rights as Citizens? The Legal and Economic Implications of a Non-discrimination Clause”, European Day of Disabled Persons 1996, D/1996/7560/3.
9 Examples of this include the upper age limits for those wishing to take the entrance examination to obtain employment within a European institution, and internal market legislation setting harmonised design standards for goods which fail to take account of the needs of disabled consumers/users, cfBell, M. and Waddington, L. “The 1996 Intergovernmental Conference and the Prospects of a Non-Discrimination Treaty Article” 25 (1996) Industrial Law Journal, 320 CrossRefGoogle Scholar, at 327. See also Waddington, L. “The European Community and Disability Discrimination: Time to Address the Deficit of Powers?” 12 (1997), Disability & Society 465 CrossRefGoogle Scholar.
10 This was recognised in the Commission’s White Paper on Social Policy of 1994 “European Social Policy – A Way Forward for the Union” COM(94)333, Ch. VI, at para. 27: “the Union must act to provide a guarantee for all people against the fear of discrimination if it is to make a reality of free movement within the single market”.
11 “European Social Policy – Options for the Union, A Green Paper” COM(93)551.
12 Above n 10 at chap. VI, para. 27.
13 A4–0068/96, Article 4.5.
14 Reflection Group’s Report (on the Inter-Governmental Conference) (The Westendorp Report), 5 December 1995 (Brussels, 1995).
15 Cf. eg Article 10 (Article 5) – Member State obligations; Article 14 (Article 7a) – general provisions/internal market; Artide 22 (Artide 8e) – citizenship; Artide 137 (Artide 118) – social provisions; Artide 179 (Artide 130w) – development cooperation; Artide 280 (Artide 209a) – financial provisions.
16 Case C–186/87 Cowan v. Trésor Public [1989] ECR 195, para.14. Cited by Bell, M. ‘The New Article 13 EC: A Sound Basis for EU Anti-discrimination Law?’ 6 (1999) Maastricht Journal of European and Comparative Law 5 CrossRefGoogle Scholar.
17 French: “dispositions particulières” (Article 12) and “autres dispositions” (Article 13); German: “besonderer Bestimmungen” and “sonstigen Bestimmungen”; Italian: “disposizioni particolari” and “altre disposizioni”; Dutch: “bijzondere bepalingen” and “andere bepalingen”.
18 I am grateful to Bruno de Witte for suggesting this second interpretation.
19 Cf. Articles 5 (Article 3b), 7 (Article 4), 8 (Article 4a) and Article 9 (Article 4b).
20 Bell, above n 16.
21 Case C-152/82 Forcberi v. Belgium [1983] ECR 2323. Cited in Bell, ibid.
22 Article 12, in contrast, allows for the seemingly more limited possibility of the adoption of “rules” to prohibit discrimination.
23 See Communication from the Commission: “An Action Plan Against Racism”, COM(1998)183 final, at 10 and Commissioner Flynn’s speech at the closing conference of the European Year Against Racism, Luxembourg, 19 December 1997.
24 Cf. Convention on the Elimination of All Forms of Racial Discrimination and the Convention on the Elimination of All Forms of Discrimination Against Women. This point was made by Aart Hendriks in an unpublished commentary prepared by Hendriks and Waddington on the Irish proposal for the non-discrimination Article.
25 Giannicheda M.-G., Introductory Paper to Workshop 3: “Promoting Participation and Citizenship”, prepared for the 1998 Social Policy Forum.
26 This concern is frequently expressed with regard to e.g. disability non-discrimination legislation. It is sometimes feared that such legislation will force (employers) to make expensive adaptions to accommodate people with disabilities.
27 It should be noted that the list of forms of discrimination in Article 13 is exhaustive, and no “catch-all” phrase, such as “any other ground”, is included.
28 OJ 1986 C158.
29 COM(95)653 final 1986.
30 Council Regulation (EC) 1035/97, OJ 1997 L151.
31 COM(98)183 final.
32 Ibid, at section 2.2.2.
33 See Commissioner Flynn’s speech at the closing conference of the “European Year Against Racism”, Luxembourg, 19 December 1997.
34 Subject to ratification of the new Treaty.
35 Case 43/75 Defrenne v. Sabena No. 2 [1976] ECR 455.
36 Article 119 did not provide for the adoption of legal instruments, and could therefore not provide the legal basis. (This has been changed as a result of the Amsterdam Treaty – see below). The legal basis for such measures was provided by Article 100 and EC Article 235, and, subsequently, Article EC 100a and the Agreement on Social Policy annexed to the Treaty on European Union.
37 This amendment was in reaction to the judgment in Case C–450/93 Kalanke v. Freie Hansestadt Bremen [1995] ECR I–3051.
38 See the speech by Commissioner Flynn to the European Parliament’s Women’s Committee, 21 January 1988, available at the Community Institutions home page: http://europa.eu.int/
39 Ibid.
40 Council Resolution of 27 June 1974, OJ 1974 C80/30.
41 Council Recommendation of 24 July 1986 OJ 1986 L225/43.
42 COM(96)406 final.
43 Resolution of 20 December 1996, OJ 1997 C12/1.
44 Ibid, at 1.3 and 4.
45 For more detailed background on the involvement of the European Parliament and the other Community institutions in the field of sexual orientation discrimination see Bell, M. “Sexual Orientation and Anti-Discrimination Policy”, in Carver, T. and Mottier, V. (eds.), The Politics of Sexuality (Routledge, 1998), 58 Google Scholar.
46 EP Doc. 1-1358/83.
47 This resulted in the publication of Waaldijk, J. and Clapham, A. (eds.) Homosexuality: A European Community Issue (Martinus Nijhoff, 1993)Google Scholar.
48 Annexed to the Commission Recommendation on the dignity of women and men at work, OJ 1991 L49/1.
49 EP Doc. A3–0028/94.
50 Bruce Milian.
51 Speech given in Strasbourg, 13 January 1998, available at http://europa.eu.int/
52 Social action programme 1998–2000, 17.
53 Law of 2 March 1994, Stb.230, which covers equal treatment on the grounds of religion, personal convictions and views, political orientation, race, gender, nationality, sexual orientation and marital status (but not age or disability).
54 COM(96) final 1996, Article 2(5).
55 COM(97) final 1997, Article 3. The relevant article in the proposed directive followed Article 13 very closely and referred, in addition to the grounds mentioned in the Parental Leave proposal to “ethnic origin, . . . beliefs, disability, age”. It did not mention “colour” which had been referred to in the earlier proposal. Both the Parental Leave Directive and the Part-time Work Directive resulted from framework agreements concluded by the social partners as provided for under the Agreement on Social Policy.
56 COM (74) 0351.
57 This is not the current position. See Case C-249/96 Grant v. South-West Trains [1998] ECR I–621.
58 A Declaration regarding persons with disabilities was adopted at the Amsterdam Intergovernmental Conference stating that: “The Conference agrees that, in drawing up measures under Article 95 of the Treaty establishing the European Community, the institutions of the Community shall take account of the needs of persons with a disability”.
59 Education, training and youth - funding for actions designed to improve the educational opportunities of social groups at risk of marginalisation or exclusion; support for transnational projects which involve the exchange of experience between schools with large numbers of pupils from different cultures and linguistic or ethnic backgrounds; equality of access to initial and continuing training.
60 Information society – action plan on promoting safe use of the Internet (COM(97) 582), including provision to combat the use of the Internet for incitement to racial hatred or racial discrimination.
61 Eg The European Year Against Racism.
62 Public procurement, EC directives allow (not require) the exclusion of candidates who breach national social legislation and successful tenderers can be required to comply with social obligations when performing contracts awarded to them.
63 Commission Decision 82/43/EEC, OJ 1982 L20/35.
64 COM(96)97.
65 Speech by Commissioner Flynn to the Women’s Committee of the European Parliament, 21 January 1998, available at http://europa.eu.int/
66 Ibid.
67 See National Action Plan of the Netherlands (1998), which describes the Dutch labour market and outlines measures the Netherlands is taking to implement the 1998 Employment Guidelines adopted at the Luxembourg European Council in November 1997.
68 The International Labour Organisation estimates that the level of unemployment among people with a disability is two to three times higher than that for the non-disabled population. See Despouy, L. Human Rights and Disabled Persons (United Nations, 1993) 26 Google Scholar.
69 See National Action Plan of Finland, Finland’s Employment Action Plan Based on the European Union’s Employment Guidelines (Ministry of Labour, April 1998).
70 Case 1/72 Frilli v. Belgium [1972] ECR 457, 466.
71 Joined cases 103 and 145/77 Royal Scholten-Honig (Holdings) Ltd. and Tunnel Refineries Ltd. v. Intervention Board for Agricultural Produce [1978] ECR 2037, 2081.
72 Case 20/71 Sabbatini v. European Parliament [1972] ECR 345.
73 Case C-249/96 Grant v. South-West Trains Ltd [1998] ECR I-621.
74 Ibid, at paras. 44 and 45.
75 Ibid, at para. 42 of the opinion.
76 Of course, it is debatable whether this conclusion was correct. The Court compared Ms. Grant (and her partner) to a homosexual male and his partner, and found that both a man and woman in this situation were treated equally. If the Court had found that the relevant comparator was an unmarried heterosexual male and his female partner it would have been possible to reach a finding that Ms. Grant had been the victim of gender discrimination (rather than discrimination on the grounds of sexuality).
77 The Spanish constitutions states in Article 14: “Spaniards are equal in the eyes of the law and there can be no discrimination whatsoever on the grounds of birth, race, sex, religion, opinion or any other personal or social condition or circumstance”.
78 The German Constitution (Grundgesetz) states in Article 3:
“1. All people are equal before the law.
2. Men and women have equal rights.
3. Nobody shall be prejudiced or favoured because of their sex, birth, race, language, national or social origin, faith, religion or political opinions. Nobody shall be disadvantaged on the basis of disability.”
79 The Dutch constitution states in Article 1: “All persons established in the Netherlands are treated equally in equal circumstances. Discrimination is not permitted on account of religion, way of life, political orientation, race, sex or any other reason whatsoever”.
80 Article 3.
81 Article 9.
82 Section 5. Source for information on national constitutions: Muñoz Machado, S. and Lorenzo, R. (eds.) European Disability Law (Escuela Libre Editorial, 1997)Google Scholar.
83 “The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status”.
84 “Considering that enjoyment of social rights should be secured without discrimination on grounds of race, colour, sex, religion, political opinion, national extraction or social origin”.
85 This is also generally true of equality provisions in national constitutions.
86 Oj 1979 L6/24.
87 Case C-92/94 [1995] ECR I-2521.
88 The relevant ages were 55 for women (official retirement age in the Member State in question was 60) and 60 for men (official retirement age was 65).
89 In a speech given to a European Conference on “Anti-discrimination: Anti-Discrimination: The Way Forward”, in Vienna.
90 Further information and commentary on this “package” can be found in Waddington, L. “Throwing Some Light on Article 13 EC Treaty”, editorial: 6 (1999) Maastricht Journal of European and Comparative Law, 1 CrossRefGoogle Scholar.