EU Non-Discrimination Law in the Courts: Approaches to Sex and Sexualities Discrimination in EU Law

by Jule Mulder

Overview

Since the year 2000, the material and personal scope of EU non-discrimination law has been significantly broadened and has challenged national courts to introduce a comprehensive equality framework into their national law to correspond with the European standard. The book provides a multi-layered culturally informed comparison of juridical approaches to EU (in)direct sex and sexualities discrimination and its implementation in Germany and the Netherlands. It examines how and why national courts apply national non-discrimination law with a European origin differently, although the legislation derives from the same set of EU law and the national courts have to respect the interpretive competence of the CJEU. The book provides valuable insights into the national and European context which shape the dialogue and influences of the courts inter se, the national application of EU law, and the harmonisation process within the area of gender equality law and beyond.
A Dutch and German comparison is of special interest here because both countries' approaches towards non-discrimination law are quite different despite the similarities in the respective legal systems; they are founding members of the EU, they are neighbours, they are civil law countries, and their legal systems are relatively similar at least compared to Scandinavian and common law jurisdictions. Therefore, the different reception EU non-discrimination law cannot simply be explained by obvious differences between the legal systems. Their comparison thus provides an interesting case study to uncover legal and non legal, cultural and historic, factors which influence the application of EU non-discrimination law in both countries. The book is of interest for EU, comparative and equality lawyers.

Product Details

ISBN-13:	9781849467636
Publisher:	Bloomsbury Academic
Publication date:	01/12/2017
Pages:	344
Product dimensions:	6.14(w) x 9.21(h) x 0.81(d)

About the Author

Jule Mulder is a lecturer in law at the University of Bristol.

Table of Contents

Foreword v

Acknowledgments vii

Abbreviations xiii

Table of Cases xvii

1 Introduction 1

I Introduction 1

II Scope of the Comparison 5

III Structure of the Book 13

2 Equality and Non-Discrimination Law 18

I Introduction 18

II The Concept of Equality within the Gender Dimension 19

A The Formal Notion of Equality 20

B Substantive Equality 24

C Feminist/Queer Critical Reappraisal of Equality and Non-Discrimination 30

i The Liberal (Feminist) Approach 32

ii A Feminist Critique of the Liberal Approach and the Employment Market 35

iii Broadening the Scope: Including Sexuality 39

iv Gender Equality: The Integration of Several Perspectives and Layers 42

D Substantive Equality within the Gender Dimension 45

III EU Non-Discrimination Law 46

A The CJEU's Understanding of Sex (Gender) and Sexual Orientation 47

B Direct Discrimination 54

i Marriage 55

ii Retirement Age 56

iii Pregnancy 57

C Indirect Discrimination 60

D Can EU Non-Discrimination Law Foster Substantive Equality? 63

IV Conclusion 64

3 Non-Discrimination Law within the German and Dutch National Systems 66

I Introduction 66

II Cultural background 67

A The German 'constitutional patriotism' 67

B The Dutch 'culture of tolerance' 70

III National Legal Contexts of Non-Discrimination Law 75

A The Role of International and Constitutional Law 75

i The Primary role of the German Constitution 75

ii The Primary role of International Law within Dutch Law 80

B Equal Treatment within Labour Law 83

i The 'General Equal Treatment Principle' within German Labour Law 83

ii The 'Good Employer and Good Employee' under Dutch Law 85

C Other Legal and Constitutional Features Regarding Gender Equality 86

i The German Constitutional Protection of Marriage 86

ii The Dutch Protection from Discrimination within Criminal Law 89

IV Historical Contexts and the Implementation of Non-discrimination Law 90

A Germany 91

i Historical Background 91

ii The Implementation of the General Equal Treatment Act 97

B The Netherlands 100

i Historical Background 100

ii The Implementation of the General Equal Treatment Act 106

V The Implications of the German and Dutch (Legal) Backgrounds on the Application of EU Non-discrimination Law on a National Level 111

4 The National Courts' Recognition of the Gender Dimension within Cases on Sex and Sexual Orientation 117

I Introduction 117

II Sex (Gender) and Sexual Orientation within German Case Law 120

A The Different Treatment of Homosexual and Heterosexual Couples 124

B The Protection of Transsexuals 129

C Inconsistent Approaches towards Gender 138

III Sex (Gender) and Sexual Orientation within Dutch Case Law 139

A The Differential Treatment of Same-sex Couples 141

B Discrimination of Transsexuals and Transvestites 147

C Comprehensive Approach towards Gender? 150

IV Conclusion 151

5 The Dutch and German Approaches towards Direct Discrimination 156

I Introduction 156

II Equal Treatment in Comparable Situations 159

A Different Treatment Directly Based on Sex 159

i The German Approach 159

ii The Dutch Approach 167

B Different Treatment Based on Sexual Orientation 173

i The German Approach 173

ii The Dutch Approach 177

III Discrimination Going beyond the Comparator Approach 180

A Pregnancy 182

i The German Approach 182

ii The Dutch Approach 188

B The German Approach towards Discrimination Linked to Retirement 195

IV Conclusion 199

6 The German and Dutch Approaches towards Indirect Discrimination 203

I Introduction 203

II Indirect Discrimination and Traditional Gender Roles 206

A Part-time Workers 206

i Germany 207

ii The Netherlands 212

B Seniority and Parental leave 218

i Germany 219

ii The Netherlands 224

C Indirect Sex Discrimination 228

III The Netherlands: The Use of Statistical Evidence and the Two-tier Assessment of Detrimental Effects 230

A Demonstrating Comparative Disadvantage by Statistics 231

B Objective Justification 233

C A Step-by-Step Analysis to Discover Disparate Effects? 236

IV Indirect Discrimination and Sexual Orientation 237

A Germany: Exclusion of Same-sex Partners from Matrimonial Benefits 238

B The Netherlands: Access to In Vitro Treatment and Sperm Donations 242

C Heteronormative Regulation and Same-sex Couples 245

V Conclusion 246

7 EU Non-Discrimination Law in the Courts 251

I Introduction 251

II The Comparative Law Project 252

III Substantive Equality within the Gender Dimension 254

IV Framework for the Analysis of the Cultural Differences and their Effects on the Application of EU Non-discrimination Law 256

V The German and Dutch 'Non-discrimination Law Culture' 259

VI The Cultural Effect on the Application of Non-discrimination Law 263

VII Final Conclusion 271

Bibliography 273

Index 307