VETTER E learning course (EN)

Earlier drafts limited sex equality in the charter to labour law and labour market relations. Only later was there the emphasis that equality “must be ensured in all areas”, an incomparably larger potential including not only the public sphere, linked to citizenship and democracy, but also the private sphere in the sense of familial and personal relations which interact with employment. 

Though wider in scope, the text is less precise and detailed in its prescription of effective means and procedures to achieve its objectives. EC experience of applying the equality concepts to paid labour can be exploited in other spheres: redefining sex equality in relation to domestic unpaid work, reconciliation of work and private life as it affects both sexes, women’s representation in organisations of workers and employers, and their participation in processes of collective bargaining over working conditions.

The Treaty of Amsterdam made promotion of equality one of the aims of the Community in all its activities, such as women’s representation and participation in decision-making processes, not confined to the labour market. Related dimensions of equality include violence against women, sexual exploitation, women’s physical and mental health and sexual harassment.

Many Member State constitutions explicitly recognize equality between the sexes, though there are different formulations: single and abstract provisions or multiple articles with more concrete formulations.

Interpretation of Article 23

The general principle of equality of the sexes was recognized for the first time in Article 2 and, above all, Article 3(2) of the EC Treaty, the legal basis of gender “mainstreaming” to include all the specified activities of the Community, including the Member States. Article 23 of the EU Charter seems to go even a step further towards the recognition of a human right of equality of men and women in all areas. 

It has long been established by the European Court that equality of the sexes in the field of employment is a fundamental individual right authorising legal action and claims before the courts. Article 23, paragraph 1, goes beyond employment and raises the question of justiciability in other areas. The second paragraph of Article 23, stipulating “The principle of equality”, may imply that the content and legal consequences of positive action are not the same in each different sphere: work and economic activity, the personal and familial sphere, and the public and political sphere. 

Article 23 includes, but is not limited to employment and paid employment relationships. It includes work, a larger concept more linked to women’s activities. Article 23 requires a programmatic approach involving measures affecting groups, allowing for collective and individual legal actions, depending on the specific area where these measures are to operate. Equality of the sexes is to apply also in the public and political spheres, including political representation. Equality in familial and personal relations is structured and influenced by law; for example, social provision by the state, in particular, personal services. Equality between the sexes is an issue present in the public, private and work areas; human rights in all three areas are both indivisible and complementary.

The principle of equality and “specific advantages in favour of the under-represented sex”

The second paragraph of Article 23 begins with “The principle of equality”, whereas Article 141(4) uses the term “the principle of equal treatment”. The first expression is much wider in scope, allowing for a wider formulation of positive action measures. 

Measures taken under Article 141(4) are to provide specific advantages with respect to working life. The second paragraph of Article 23 of the Charter, like the first paragraph, applies “in all areas”. It is not possible to separate off the sphere of employment from other spheres, especially as these affect equality between men and women. Hence, the need for measures as regards reconciliation of work and family, the relation between paid and unpaid work, and women in organisations in the economic field, especially trade unions and employers’ organisations. 

Positive action does not target the individual act of discrimination. Rather, it is a measure requiring action in order to realize substantive equality in the case of group discrimination, in this case, against women. Positive action measures in Article 23 are not an exception to the right to equality, let alone a violation of the equality principle. Rather, they are the necessary steps towards ensuring equality in accordance with the first paragraph of Article 23. The term under-represented sex explicitly recognizes the collective dimension of sex equality. One of the sexes, the female, is known to be under-represented in certain structures of power - segments of the paid workforce and political structures. In these structures there has little progress towards equality despite legislative interventions. The principle of gender mainstreaming in Article 3(2) of the EC Treaty requires all relevant policies to reflect the criterion of whether or not they contribute to equality of men and women. This goes beyond the prevailing strategies of anti-discrimination and promotion provisions. Positive action, which implies a variety of legal measures, is the most important dynamic instrument for implementation of the gender mainstreaming principle. 

The conditions under which positive action is undertaken are not the same in different areas. For example, what is the meaning of “specific advantages in favour of the under-represented sex” in the private, familial and domestic sphere? Men are the under-represented sex in this case. Ensuring equality as regards the responsibilities for reproduction is well known to labour law as requiring reconciliation of work and family life for both sexes. Positive action may additionally require the engagement of public authorities in promoting policies and infrastructures to ensure equality between men and women in this sphere. It requires greater comprehension of the connections between work and the demands of the private sphere.