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