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Complex Equality and the Court of Justice of the European Union
Reconciling Diversity and Harmonization
Series: - Nijhoff Studies in European Union Law, Volume: 14
Author:
The equality jurisprudence of the Court of Justice of the European Union has long drawn criticism for its almost total reliance on Aristotle’s doctrine that likes should be treated like, and unlikes unlike. As has often been shown, this is a blunt tool, entrenching assumptions and promoting difference-blindness: the symptoms of simplicity. In this book, Richard Lang proposes that the EU’s judges complement the Aristotelian test with a new one based on Michael Walzer’s theory of Complex Equality, and illustrates how analysing allegedly discriminatory acts, not in terms of comparisons of the actors involved, but rather in terms of distributions and meanings of goods, would enable them to reach decisions with new dexterity and to resolve conflicts without sacrificing diversity.
Richard Lang, Ph.D. (2011), King’s College London, is Senior Lecturer at the University of Brighton and a solicitor. He has published articles on EU Law in several leading journals and has acted as Fundamental Rights Specialist for the European Parliament.
Foreword
Acknowledgements
1 Introduction 1.1 Starting Point 1.2 The Trouble with Aristotle: A Précis 1.3 The Project in Outline 1.4 The Search to Find a Complement 1.4.1
The Difficulty 1.4.2
Equality versus Freedom 1.4.3
Reasons for Choosing Walzer
2 Michael Walzer and Complex Equality 2.1 Introduction 2.2 Complex Equality: A Thumb- Nail Sketch 2.3 Negative Dominance 2.4 The Concept of ‘Shared Understandings’ Investigated Further 2.5 An Objection: Walzer’s ‘Relativism,’ and the Need for An Override 2.6 The CJEU and its Override: An Answer to the Objection
3 The Principle of Equal Treatment of Persons Irrespective of Gender 3.1 Introduction 3.2 Outline of Analysis and Taxonomy of Results 3.3 Characteristics and Voluntary Choices: Is the Theory Fit for Purpose? 3.4 Pregnancy 3.4.1
The CJEU’s Case-Law 3.4.2
Preliminary Analysis 3.4.3
A Walzerian Analysis 3.5 Paternity leave 3.5.1
The CJEU’s Case-Law 3.5.2
A Walzerian Analysis 3.6 Pensions 3.6.1
The CJEU’s Case-Law 3.6.2
A Walzerian Analysis 3.7 The Question of Part-Time and Full-Time Work 3.7.1
The CJEU’s Case-Law 3.7.2
Preliminary Analysis 3.7.3
A Walzerian Analysis 3.8 Positive Action 3.8.1
The CJEU’s Case-Law 3.8.2
Preliminary Analysis 3.8.3
A Walzerian Analysis 3.9 Insurance Premiums and Benefits 3.9.1
The CJEU’s Case-Law 3.9.2
Preliminary Analysis 3.9.3
A Walzerian Analysis 3.10 Concluding Thoughts
4 Racial or Ethnic Origin, Religion or Belief, Disability, Age, and Sexual Orientation: New Statuses, New Status Rights? 4.1 Introduction 4.2 Racial/Ethnic Origin 4.2.1
The CJEU’s Case-Law 4.2.2
A Walzerian Analysis 4.3 Religion and Belief 4.3.1
The CJEU’s Case-Law 4.3.2
A Walzerian Analysis 4.4 Age 4.4.1
The CJEU’s Case-Law 4.4.2
A Walzerian Analysis 4.5 Sexual Orientation 4.5.1
The CJEU’s Case-Law 4.5.2
A Walzerian Analysis 4.6 Disability 4.6.1
The CJEU’s Case-Law 4.6.2
A Walzerian Analysis 4.7 Concluding Thoughts
5 Nationality Discrimination 5.1 Introduction 5.2 Nationality Discrimination in EU Law 5.3 A Specific Example: The Free Movement of Persons 5.4 The Early Case-Law 5.5 A Walzerian Analysis 5.6 Cases Deriving from the Second World War 5.7 A Walzerian Analysis 5.8 The Citizenship Case-Law: Early Days 5.9 A Walzerian Analysis 5.10 The Citizenship Case-Law Evolves 5.11 A Walzerian Analysis 5.12 Interim Conclusion 5.13 The Citizenship Case-Law Since 2005 5.14 A Walzerian Analysis 5.15 Solidarity 5.15.1
What is Transnational Solidarity? 5.15.2
Consideration and Responsibility 5.15.3
Asymmetric Solidarity, Pan-European Solidarity Publics and Walzer’s Position 5.15.4
Solidarity and Complex Equality 5.16 Concluding Thoughts
6 Semi-Suspect and Non-Suspect Grounds 6.1 Introduction and Explanation of Terminology 6.2 Semi-Suspect Grounds 6.2.1
Article 40(2) TFEU: Producers and Consumers 6.2.2
Article 106(1) TFEU: Public and Private Undertakings 6.3 Non-Suspect Grounds 6.3.1
General Introduction: Omega 6.3.2
Public Procurement 6.3.3
Human Resources 6.3.4
Competition Law 6.4 Luck: Boundary Breach or Small Inequality? 6.5 Concluding Thoughts
7 Reflections Introduction Three Counter arguments 7.2.1
The Need for Judicial Interventionism 7.2.2
The Possible Need for Expert Evidence, or Even Specialized Courts 7.2.3
The Need to Rewrite Legislation
8 Presenting a Theory of Mediated Complexity 8.1 Introduction 8.2 Further Consideration of the Forum, and Some Possible Problems 8.2.1
The Design of the Forum 8.2.2
The Danger of the Forum 8.2.3
Interim Conclusion 8.3 Mediated Complexity 8.4 The Judge vis-à-vis Society 8.5 Conclusion
9 Evaluation 9.1 The Two Methods Compared: Erpelding 9.2 Formulating the Argument 9.3 In Search of Flexibility 9.4 But Does Flexibility Lead to Uncertainty? 9.5 Judge Right Now 9.6 Postmodernism and Precedent 9.2.1
Dworkin on Precedent, and A Critique 9.2.2
Postmodernism Challenges Neutrality And Positivism 9.2.3
Saying Yes to ‘We’ 9.7 Macro and Micro: The Equilibrium of Co- Existence 9.8 Complex Equality and European Union 9.9 Complex Equality for European Courts? 9.10 Parting Words: To Thine Own Self Be True
10 Conclusion
Appendix I
Bibliography
Index
Those studying, teaching or practising European law, anti-discrimination law and human rights law, and those studying or teaching jurisprudence, philosophy, political science, social science, postmodernism, and disciplines concerned with minorities.