Anti-discrimination Directive on the occasion of the ECJ’s judgment of 10th February 2022*

By Evlampia Tsolaki, Attorney at Law

I. The generic frame of EU law

The openness of a work market is a precondition for its smooth operation since in this way it attracts and pools the most creative part of the human resources available. To this end, the radical combat against any kind of discriminations that are structurally embodied into the mentality of recruitment’ s actors has been of outmost importance and has taken place by the EU legislator at an early stage as a basic means of safeguarding a satisfactory level of social policy with the ultimate purpose to prevent distortions of competition within the EU single market. In this line of rational, EU first “declared the war” against the unjustifiably unfavourable treatment towards women employed who have been unpalatably underpaid in comparison with their male colleagues. That practice had become a perpetual plague that steadily had shadowed their work, condemning them to remain sheer executive tools at the work place without any real opportunity having being given for taking initiatives, which inevitably had turned out to be a men’s prerogative. From that point of view, it is not a coincidence that the fundamental principal of equal pay for equal work between women and men has been pioneeringly adopted since 1957 throughout EU. Today, under the Lisbon’s Treaty, the principle at hand is expressis verbis enshrined in article157§1 TFEU and notably has been jurisprudentially recognized[1] to have direct effect, a fortiori considering that it is precise and contains no terms and conditions. This means that it can be invoked by citizens invariably towards states along with other private operators, unlike natural or legal persons, before national courts, tribunals and other administrative authorities. More accurately, in the ECJ’s words[2] “…the principal of equal pay contained in Article 119 may be relied upon before the national courts and that these courts have a duty to ensure the protection of the rights which this provision vests in individuals, in particular as regards those types of discrimination arising directly from legislative provisions or collective labour agreements, as well as n cases, in which men and women receive unequal pay for equal work which is carried out in the same establishment or service, whether public or private…”. So, the provision of article 157§ 1 TFEU, though rather specific, has become the cornerstone of EU anti-discrimination law, standing at the forefront of the struggle against prejudice being faced by women to a great extent by scandalously being received unequal pay for equal work in comparison with men, a practice followed sometimes even today, undermining female employment as well as poisoning the peace in job markets. In the course of time, the intensive rise of the level of living has instigated people with a disadvantageous background to make the decision of entering into the work market in order to obtain the potential to gain access to that prosperity[3]. That trend has been reinforced by the globalization of the whole financial action that has set up new job opportunities without borders, resulting simultaneously in a high mobility of work force. In this way, diversified employees have been brought and placed together in work environments with a culture detached from them to a considerable degree. This fact has pointed out some other discriminatory forms that have dominated in the employment world on the basis of some standard characteristics, such as the religion or other philosophical belief, disability, age and sexual orientation. Given that such discriminations have culminated in establishing an accordingly significant with those referring to the unequal pay for equal work between women and men structural barrier in work, the EU’s legislator, inter alia, has adopted the Directive 2000/78/EC for the elimination of the disadvantageous treatment by reason of the aforementioned criteria[4] , which has set up a general antidiscrimination framework. More specifically, pursuant to article 1 thereof “the purpose of this Directive is to lay down a general framework for combating discrimination on the grounds of religion or belief, disability, age or sexual orientation as regards employment and occupation, with a view to putting into effect in the Member States the principle of equal treatment”. The latter, on the last analysis derives[5] , from the Universal Declaration of Human Rights, the United Nations Convention on the Elimination of all Forms of Discrimination against Women, United Nations Covenants on Civil and Political Rights and on Economic, Social and Cultural Rights, the European Convention for the Protection of Human Rights and Fundamental Freedoms and the International Labour Convention No 111 for prohibiting the discrimination in the field of employment and occupation. Last but not least, in parallel with and in addition to those international legal texts, the principle of equal treatment has its foundation in the (national) constitutional traditions being common in member states so that all those legislative instruments have transformed it to a general principle of EU law[6] .


Read more articles by Evlampia Tsolaki here

* C-485/202 [HR Rail SA, 10th February 2022]

[1] ECJ C-43/75 [Defrenne II, 8th April 1976], n.40.

[2] Supra

[3] Qv. ECJ C-303/06 [Coleman 17th July 2008] n.3.

[4] The legal basis for the issuance of the Directive given is article 19 TFEU

[5] Qv. Recital 4th of the Preamble of the Directive 2000/78//EC.

[6] Qv. Recital 1st of the Preamble of the Directive 2000/78/EC.

(photo: iStock)

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