The Amended Equal Treatment Directive (2002/73): An Expression of Constitutional Principles / Fundamental Rights

Abstract

This paper recalls the constitutional framework within which Directive 2002/73 was adopted, and attempts a first evaluation of some of its ‘new’ provisions in light of this framework. This illuminates a brief discussion of the proposal for a Recast Directive, which aims to ‘simplify, modernize and improve’ gender equality EC law by putting together three gender equality directives, including Directive 2002/73, and which should, therefore, incorporate the whole relevant legislative and jurisprudential acquis. Gender equality enjoys a privileged status under the Treaties. It is an EC ‘task’ and ‘aim’ to ‘eliminate inequalities' and ‘promote’ gender equality in all fields. This ‘positive obligation’ is also incumbent on the EU, since (substantive) gender equality, as a fundamental right, is its cornerstone, and on Member States, via their duty of ‘loyal cooperation’. Gender equality – which is also a strategic Lisbon goal – is thus an essential element of European identity. Directive 2002/73 is an expression of the constitutional principle of gender equality and other constitutional principles, such as those of the protection of family life and effective judicial protection. Its provisions on positive action and maternity/paternity rights, far from constituting derogations from gender equality, are necessary means for its substantive achievement. Therefore, this Directive – like the Recast Directive, once it is adopted – must be construed in a wide, teleological way, so that it can be an effective tool for the substantive implementation of these principles/fundamental rights and contribute to safeguarding and enhancing the human face of Europe.