Maastricht Journal of European and Comparative Law

This paper recalls the constitutional framework within which Directive 2002/73 was adopted, and attempts a first evaluation of some of its ‘new’ provisions in light of this framework. This illuminates a brief discussion of the proposal for a Recast Directive, which aims to ‘simplify, modernize and improve’ gender equality EC law by putting together three gender equality directives, including Directive 2002/73, and which should, therefore, incorporate the whole relevant legislative and jurisprudential acquis.

Gender equality enjoys a privileged status under the Treaties. It is an EC ‘task’ and ‘aim’ to ‘eliminate inequalities' and ‘promote’ gender equality in all fields. This ‘positive obligation’ is also incumbent on the EU, since (substantive) gender equality, as a fundamental right, is its cornerstone, and on Member States, via their duty of ‘loyal cooperation’. Gender equality – which is also a strategic Lisbon goal – is thus an essential element of European identity.

Directive 2002/73 is an expression of the constitutional principle of gender equality and other constitutional principles, such as those of the protection of family life and effective judicial protection. Its provisions on positive action and maternity/paternity rights, far from constituting derogations from gender equality, are necessary means for its substantive achievement. Therefore, this Directive – like the Recast Directive, once it is adopted – must be construed in a wide, teleological way, so that it can be an effective tool for the substantive implementation of these principles/fundamental rights and contribute to safeguarding and enhancing the human face of Europe.

This paper assesses the emergence of a new proactive model to achieve gender equality, and compares it with the more established complaints-led model based on individual rights. While transcending many of the weaknesses of the individual complaints model, the proactive model remains ambiguous in many crucial respects, particularly as to its objectives, its use of participation, and how compliance is to be achieved. The paper aims to shed more light on these key aspects by drawing on the experiences of such models in Canada, Northern Ireland, Britain, and the EU itself. This demonstrates that the location of proactive strategies on the borderline between law and politics makes them highly dependent on political will. The key challenge is therefore to ensure that proactive strategies are based on a recognition that equality is a fundamental right, not a discretion, without reverting to individualised complaints mechanisms with all their inbuilt weaknesses. I conclude by considering how we might achieve a fundamental and non-derogable core of rights within a proactive model.

This paper aims to show that the Convention for the Elimination of All Forms of Discrimination Against Women (CEDAW) can provide inspiration and open new avenues to solve some of the problems that are the consequence of the currently insufficient approach to gender equality under European Community law. It is argued that the approach of CEDAW should be applied in both interpreting existing EC law and in making new law. In interpreting existing EC sex equality law, the Convention's role as a source of inspiration must be taken much more seriously than is currently the case. As for the drafting of new law, it is true that the EC itself is not a signatory to CEDAW and, therefore, not bound by the Convention in a strict legal sense. However, the Member States are signatories. As such, they are under an obligation to take the Convention seriously, an obligation that also relates to the making of EU and EC Treaty law that, in turn, provides the framework for the adoption of secondary EC law.

What does EU sex equality law mean for the new ‘post-socialist’ Member States of the EU? Against the context of the legacy of ‘socialist emancipation’, and the backlash which followed the 1989/90 revolutions, this article analyses the contributions made by EU sex equality law to the legal position of women in the new Member States, and the potential for EU sex equality law to improve the position of women in those Member States. Using the case study of Hungary, it analyses the measures taken by one such Member State to comply with the acquis communautaire on sex equality. The conclusions are that EU sex equality law brings much of value to women in the new Member States, but that the future challenge is to instrumentalize and embed the EU sex equality acquis so that its promise becomes a practical reality for those women.