LAW IS NOT ENOUGH BUT STILL IMPORTANT

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Prof. Dr. Christa TOBLER, LL.M., Universities of Basel (Switzerland) and Leiden (The Netherlands)

LAW IS NOT ENOUGHBUT STILL IMPORTANT

Prof. Dr. Christa Tobler, LL.M.

Europa Institutes of the Universities of Leiden (Netherlands) and Basel (Switzerland)

2nd ‚Equal is not enough‘ Conference.Challenging differences and inequalities in contemporary societies

1-3 December 2010, Antwerp

Prof. Dr. Christa TOBLER, LL.M. Universities of Basel (Switzerland) and Leiden (The Netherlands)[email protected] [email protected] http://www.europa.unibas.ch http://www.europainstituut.leidenuniv.nl

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Prof. Dr. Christa TOBLER, LL.M., Universities of Basel (Switzerland) and Leiden (The Netherlands) 2

Ideally: law by itself is enoughLaw describes and constructs an ideal world

• I.e. where the law provides that “there shall be no discrimination”, that alone is sufficient to ensure that there is in fact no discrimination.

• Much like the idea behind the ten commandments in the bible, which in the original Hebrew language are formulated as „apodiktisches Recht – unbedingte, ohne Wenn und Aber gültige Forderungen“, i.e. it WILL be as the commandments state.

• However:Does not work in reality, which means that more is needed - including in particular substantive details, enforcement procedures, sanctions etc.

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Law is not enoughLaw may help … but may not be fully effective• From the abstract:

”Law is not enough because the ultimate root causes of discrimination and inequality are not of a legal nature. […] Since law is not the ultimate root cause for discrimination, it can also not be the ultimate remedy. Nevertheless, law may play an important role in making discrimination and inequality visible as well as in fighting it. However, in practice the effect of non-discrimination law is often deficient [...].”

• Some reasons (in relation to EU law): – Content or meaning of the law as adopted by the EU legislator

(scope, rights, derogations; usefulness of the substantive rules in order to achieve social engineering).

– Implementation of EU law in the Member States.– Enforcement of EU law, both in the Member States and on the level

of the EU itself.

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In fact: law is not neutralNegative and/or positive role

• E.g. gender („a constitutive element of social relationships based on perceived differences between the sexes, and gender [as] a primary way of signifying relationships of power”; Scott, 1986).

• Law is not neutral:– E.g. Smart (1992): „How does gender work in law and how does law

work to produce gender?“

– E.g. Binion (1995): „[…] questions about where the law fits within women‘s experience, what is its role in perpetuating these gendered systems, and how might law be a vehicle for change.“

• Thus: the law may both be a cause for discrimination and a means for addressing it.

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Access to justice (UNDP)Fundamental elements of access to justice

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ExamplesTwo examples for purposes of illustration• Reverse order of subject matters:

Enforcement first, and finding of discrimination thereafter.

• Two examples:– One ECJ case: enforcement of EU non-discrimination

law: Jonkman (2007), concerning equal pay for men and women (which is a very old issue in EU law).

– One national case on the meaning of equality and discrimination: the Austrian Public Toilets case (2010), concerning sex equality in relation to services (which is a comparatively new issue in EU law) - could such a case be won before the ECJ?

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Jonkman (1)Facts and issues• The case concerns three former stewardesses of the Belgian

airline Sabena who claim retirement pensions. The claims are directed to the National Pensions Office (NPO), they concern statutory pensions.

• The NPO grants them a pension, subject to a single large adjustment payment and interest of 10%.

• The former stewardesses go to courts in Belgium and argue that this is discriminatory. They should receive a pension calculated under the same rules as those applicable to male cabin crew.

• The national court turns to the ECJ for a preliminary ruling on the interpretation of EU sex equality law (Directive 79/7/EEC).

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Jonkman (2)Background

• This case - which arrived at the ECJ in 2006 - really goes back to the 1960s ... !!!

• Compare the famous Defrenne cases (1971, 1976, 1978):– Ms Defrenne, a stewardess of Sabena, complained about sex

discrimination in employment.

– The issue:The financial consequences of the fact that stewardesses were dismissed at the age of 40 (different from men doing the same work as cabin stewards who were allowed to continue working) in terms of pension rights and pay.

– Background: Belgian law of the 1960s.

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Jonkman (3)By way of comparison: Merino and de los Mazos (1984)• For the thinking behind this type of rule (early dismissal of

stewardesses), compare the judgment in a Spanish case of the mid 1980s.

• Same type of case: early dismissal of stewardesses.• Spain: at that time not yet a Member State of the EEC.

But: it had labour law that prohibited sex discrimination.• The court (employment tribunal) held that there was no

sex discrimination:„It is easy to understand that it is because of their looks that women are chosen for the job of a stewardess on airplanes. The recipients of such services normally expect an attractive person. Attractiveness is something that men, generally speaking, do not have. As it is tied to age, it is acceptable to fix an early retirement age for women in this activity.“

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Jonkman (4)Back to Defrenne: the history of the case• Ms Defrenne went to Belgian courts several times.• The case led to three references for a preliminary ruling of the

European Court of Justice. One judgment in particular became a landmark: Defrenne II (1976).

• Outcome:– Such a case involves sex discrimination in relation to pay, prohibited by

Art. 119 of the EEC Treaty (post-Lisbon: Art. 157(1) TFEU).– Even though it seems to address the Member States only, Ms Defrenne

can rely on this provision, even against her private employer (horizontal direct effect).

• Consequence:Both the dismissal practice of Sabena as well as the relevant pension rules had to be changed in order to be in line with EEC (post-Lisbon: EU) law.

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Jonkman (5)The Belgian pension rules• Royal Decree of 10 January 1964:

– A special retirement pension scheme is introduced for the benefit of civil aviation air crew, from which air hostesses were nevertheless excluded.

– Reason: the dismissal of women at the age of 40, because of which women could not complete a full career.

• Changes following Defrenne:– Royal Decree of 27 June 1980 finally integrates women into the

special scheme for civil aviation air crew.– Royal Decree of 28 March 1984 introduces an adjustment for air

hostesses in respect of the period from 1 January 1964 to 31 December 1980 - but: annulled by the Conseil d’Etat.

– Royal Decree of 25 June 1997 aims to remedy the difference in treatment between air hostesses and stewards during the period from 1 January 1964 to 31 December 1980.

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Jonkman (5)The Belgian adjustment rules of 1997• Royal Decree of 25 June 1997 contains special adjustment

rules concerning air hostesses who had been employed as such during the period from 1 January 1964 to 31 December 1980.

• They are now entitled to a retirement pension under the same rules as those applicable to stewards, subject however to two specific conditions:– A single payment of adjustment contributions (difference between

the contributions paid by the air hostesses during the period from 1 January 1964 to 31 December 1980 and the higher contributions paid by the stewards during the same period.);

– Plus interest at the annual rate of 10%.

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Jonkman (6)Returning to Jonkman: the issue of enforcement• Note: the rules at issue in Jonkman were adopted in order to

remedy the discrimination found in Defrenne in the 1970s.• Accordingly: this is really an enforcement case.• Enforcement requirements under EU law (Jonkman):

– When it is apparent from an ECJ judgment that national legislation is incompatible with EU, „it is for the authorities of the Member State concerned to take the general or particular measures necessary to ensure that [EU] law is complied within that state“, i.e.:

– There must be a remedy not only for individual cases such as that of Ms Defrenne (with “levelling up” effect) ...

– ... but also: the authorities must ensure that national law is changed so as to comply with EU law as soon as possible and that the rights which individuals derive from EU law are given full effect.

– Further: any enforcement measure must be effective.

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Jonkman (7)In Belgium, was there correct enforcement following

Defrenne?• Remember: the applicants in Jonkman complained about

discrimination, even under the new law.• ECJ judgment:

– An adjustment payment and reasonable interest are fine, BUT:– Requirement of a single adjustment payment:

Given the many years that passed, the amount of adjustment payment is very large and may even surpass the amount of the annual pension. The requirement of a single payment makes the adjustments excessively difficult.

– Interest of 10%:This exceeds the rate of inflation, i.e. the contributions paid by the new members are higher than those of former members. “Therefore, far from putting the air hostesses in the same position as the stewards, that interest rate has allowed the unequal treatment of the air hostesses to continue.“

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Jonkman (8)All’s well that ends well - ?

• Not in such a case. Consider e.g.:– The time aspect - the last aspect of the discriminatory rules of the

1960s was addressed in 1997 only (and then deficiently).

– The courage, time, effort and money it took Ms Defrenne to fight the original discrimination.

– Idem for Ms Jonkman and her colleagues for the continued discrimination on the level of enforcement: ECJ judgment of 2007 ...

– The many stewardesses who suffered from the system, including those who may already have died and can no longer act.

• Accordingly:Jonkman is an illustrative case showing that “law is not enough”.

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Public toilets (1)Facts and issues

• Austrian MP Dr. X often travels by train for her work.

• During one particular trip, she uses the public restrooms at the train station in Lienz and finds that women have to pay (50 cents) whilst for men there are urinals free of charge.

• She complains to the Austrian Equality Body (Gleichbehandlungskommission, GBK) and argues that there is direct sex discrimination in relation to a service due to different treatment of men and women with respect to the same need.

• GBK Decision of 17 June 2010: there is no discrimination.

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Public toilets (2)Background (1)

• Long standing discussion on toilets and sex discrimination, see e.g.:– Edwards/McKie (1996), ‘Women’s public toilets. A Serious Issue

for the Body Politic’, The European Journal of Women’s Studies.

– The work of Mary Ann Case on “Toilet Inequities” (USA).

– The Economist (July 10th 2010), ‘Flushing away unfairness’.

• More generally on the importance of good toilets, see e.g. the work of the British Toilet Association and of the American Restroom Association.

• Historical background for payments: a tax on urine (for buying it), especially by the Roman emperor Vespasian (“non olet”).

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Public toilets (3)Background (2)

• Common situation: (free) urinals(“vespasiennes”, “vespasienni”,“vespasiene”) only for menbut not for women.

• However, there is alsothe so-called She-pee(see picture).

• In fact, some “Damen-pissoiranlagen” also existin Austria (namely at Vienna).

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Public toilets (4)Case raises issues on each level of the legal analysis

Taken from:Tobler, Limits and potential of the concept of indirectdiscrimination(2008).

Compare also: Tobler/Beglinger, Essential EU Law in Charts, 2nd edition, 2010, Chart 8/4,www.eur-charts.eu

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Public toilets (5)Scope: is there a service?• Directive 2004/113/EC:

– Art. 3(1): “services, which are available to the public irrespective of the person concerned as regards both the public and private sectors, including public bodies, and which are offered outside the area of private and family life and the transactions carried out in this context.”

– Recital 11 in the preamble: “Services should be taken to be those within the meaning of Article [57 TFEU].”

– Art. 57 TFEU: “normally provided for remuneration”.– My personal opinion: no doubt that there is a service, since

women have to pay for using the toilets; compare Wall (2010).• Lengthy discussions in the GBK:

– Problem of the pay element, since men (precisely!) do not have to pay for the use of urinals.

– Finding: yes, “jedenfalls im Rahmen des von der Betroffenen abgeschlossenen Beförderungsvertrags” (i.e. as part of the transport contract, where both men and women have to pay).

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Public toilets (6)Is there (prima facie) discrimination? (1)• Directive 2004/113/EC:

Art. 2(a), definition of direct discrimination: “where one person is treated less favourably, on grounds of sex, than another is, has been or would be treated in a comparable situation”.

• Therefore, a finding of direct sex discrimination requires:– Different treatment of men and women ...– ... in a comparable situation.– [Plus: absence of justification – see later.]

• Here:– Different treatment: clear case.– Comparable situation: very complex.

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Public toilets (7)Is there (prima facie) discrimination? (2)• GBK finds no direct sex discrimination.• Reasons:

– The services as such are different (a urinal is not the same as a closed cabin with a toilet). According to the GBK, the law requires identical services, rather than only comparable services.

– Men and women are not comparable:– The offer of identical services is not required where the situations are not

comparable, i.e. men and women are not comparable. – E.g. healthcare services:

Differences between men and women in the provision of healthcare services, which result from the physical differences between men and women, do not relate to comparable situations and therefore, do not constitute discrimination.

– Here, there are physical differences between men and women:“Ein Pissoir [ist] ausschliesslich zur Miktion in der Form bestimmt, die sich aus den körperlichen Unterschieden zwischen Mann und Frau ergeben.”

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Public toilets (8)Is there (prima facie) discrimination? (3)• Reasoning of the GBK leads to numerous questions.• My personal questions:

– What needs to be compared? Could not the basic need of the people be relevant? Compare Sturgeon (2009).

– Why must the services be identical rather than only comparable?– After all, remember the definition of the general equality principle, which is

based on comparability, rather than identity.– Compare also e.g. Art. 110(1) TFEU on the taxation of goods.

– Are the factual differences between men and women really relevant for present purposes?

– And if so, is it really true that these differences make the offer of a comparable service impossible? (Consider e.g. the She-pee.)

– What is the basis for assuming that the Directive does not require the offer of identical services for identical needs? After all, the Directive is about the “access to and supply of goods and services”.

– …

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Public toilets (9)Justification (1)

• Various arguments before the GBK (see following sheets).

• However, GKB does not deal with them, since it does not arrive at a finding of (prima facie) discrimination.

• Relevant test, Art. 4(5) of Directive 2004/113/EC:“This Directive shall not preclude differences in treatment, if the provision of the goods and services exclusively or primarily to members of one sex is justified by a legitimate aim and the means of achieving that aim are appropriate and necessary.“

• Note:Objective justification even for direct discrimination (not usually available under EU law).

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Public toilets (10)Justification (2)• Argument 1 - urinals cost less (construction, cleaning,

maintenance):– The easiest argument from a legal point of view.– Under EU law, purely economic grounds can never serve as

justification.

• Argument 2 - urinals are able to resist vandalism:– Public security, public order.– Not explicitly mentioned in the directive (different from economic

law).– Covered by Art. 4(5) of the Directive? Convincing? More than mere

assumptions on men? And if so, proportionate?

• Argument 3 – urinals offer practically no possibility for consuming drugs: same.

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Public toilets (11)Justification (3)• Argument 4 - men are culturally differently socialised

(meaning: they more than women need an inducement not to use just any space - protection of plants around the station ...): same.

• Argument 5 – urinals for women, if used, must still be placed in separate cabins as they are not willing to use open spaces and it cannot reasonably be expected from them: similar – mere assumptions? Giving up too easily?

• Further and overall:Can there be any necessity if, in the meantime, there are train stations in Austria where both men and women have to pay?

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Public toilets (12)The outcome

• A case raising complex questions notably on comparability (and objective justification).

• Core issue of equality law – brings us back to where we used to be and from we started a long time ago: women are allegedly not comparable to men, which allows (or even calls for) different treatment … (historically e.g. in relation to voting or marriage rights).

• Does law reach its limits in such cases? Is such a case still judiciable? Or is this yet another example that law is not enough? Might brave reasoning lead to a finding of discrimination?

• There appear to be more questions than answers ...

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ConclusionLaw is not enough … but still important• Our starting point:

Law cannot be the ultimate remedy because law is not the ultimate root cause of discrimination.

• What we found:– Law itself my cause discrimination (Jonkman) and those who

adjudicate may not use the law to its fullest potential (Public toilets).

– Still, without the law there might be no means to address such issues.

• Therefore (at the very least): law should constantly be improved and those who apply it need constant education.

• Even so, certain issues may remain difficult …

Thank you for your attention!

LAW IS NOT ENOUGH BUT STILL IMPORTANT

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