Does EU law prohibit condoning discrimination against breastfeeding women?

Steve Peers

Yesterday, Nigel Farage, the leader of the UK Independence Party (UKIP) stated that while he had no personal objection to women breastfeeding in public, it should be for businesses to decide on their own rules. Perhaps they could ask breastfeeding women to “sit in a corner”. In any event, it shouldn’t be hard to breastfeed a baby in a way that wasn’t “openly ostentatious”.

He was referring to a case in which a restaurant asked a woman to place a napkin over her baby. Another café has recently suggested that women should breastfeed in the disabled toilets.

There’s an interesting legal dimension to this issue. First of all, is it legal to discriminate against breastfeeding women? Secondly, to what extent is it illegal even to encourage such discrimination, or at least to condone it? The latter is a fair description of Farage’s comments.

Discrimination against breastfeeding women  

As some press articles have pointed out, the Equality Act 2010 makes it illegal in the UK to discriminate against breastfeeding women in employment or public places like restaurants, subject to very limited exceptions. There’s an excellent summary of the law here, on the Maternity Action website. So businesses can’t make up their own rules on this issue, as Farage seemed to assume – although perhaps his point was that the law ought to change.

What about EU law? There are separate Directives concerning sex discrimination in employment, and sex discrimination as regards goods and services offered to the public, which would apply to restaurants. Neither of them explicitly bans discrimination as regards breastfeeding. But the Court of Justice of the European Union (CJEU) has long ruled that discrimination against pregnant women is discrimination on grounds of sex. Its reasoning is that even though not all women are, have been, or will become pregnant, only women can be pregnant, and so discrimination on grounds of pregnancy is therefore direct sex discrimination. Logically this reasoning applies by analogy to breastfeeding: even though not all women will become mothers, or breastfeed if they do, only women can breastfeed.

If this is correct, there’s a ban on discrimination against breastfeeding mothers right across the EU, and the UK’s law simply reflects its EU obligations. Of course, leaving the EU (UKIP’s key policy) would mean that the UK no longer had such obligations.

Endorsing or condoning discrimination

Of course, Nigel Farage didn’t himself insist that a breastfeeding mother had to cover herself with a napkin in a restaurant, or actually make a new mum sit in the corner. He merely said that he could accept it if businesses chose to do this – even though (which he didn’t mention) this would be illegal.

There’s an interesting line of case law of the CJEU on the circumstances in which publicly supporting discrimination gives rise to legal liability. First of all, in AGM COS.MET, a Finnish government official disparaged the safety of Italian lifts. Sales of the lifts promptly plummeted (as it were), and the manufacturer sued the Finnish government for damages. The CJEU ruled that the State would be liable for its official’s comments if, on the facts of the case, those comments were attributable to the State. One factor to consider was whether the State distanced itself from those comments. On this point, it’s interesting to note that David Cameron’s office immediately denounced Farage’s remarks yesterday. This is probably not an attempt to reduce the government’s legal liability, but rather a bid to hoover up the female votes that Farage apparently doesn’t really want that much. But the effect is the same.

So can there be liability for discriminatory comments by private individuals? In Feryn, the CJEU said that a business could be liable for stating publicly that it would not hire ethnic minorities, due to objections by its customers. That’s broadly similar to Farage’s point that other restaurant customers might be ‘embarrassed’ by ‘ostentatious’ breastfeeding. Perhaps it would distract their attention too much from gazing at Page 3 of The Sun.

Later on, in the Associatie Accept case, the CJEU ruled that a homophobic rant by the part-owner of a football club could give rise to liability for that club, if there was a perception that he had a significant influence on that club's policies. While Nigel Farage certainly seems to influence government policy generally, in this particular case David Cameron’s response to Farage's comments yesterday would rule that out.

So as things stand, Nigel Farage’s comments would not give rise to personal or state liability – although lawsuits against the restaurants that discriminate against breastfeeding women would be a different matter. And things would also surely change if Farage were the Deputy Prime Minister – although in that case, the UK’s EU membership and the Equality Act would likely not last very long in any event.


Cartoon: Los Angeles Times

Barnard & Peers: chapter 20

The French ban on public face-veiling: enlarging the margin of appreciation

Ronan McCrea

Senior Lecturer in Law, University College London; author of Religion and the Public Order of the European Union

The Grand Chamber of the European Court of Human Rights has issued its eagerly-anticipated decision in SAS v France, the challenge to the French law of 2010 banning face-veiling in public spaces.

The applicant, a French national represented by British lawyers, had alleged that the law violated no fewer than 6 articles of the ECHR: Article 3 (inhuman and degrading treatment), Article 8 (privacy), Article 9 (freedom of religion and belief), Article 10 (freedom of expression), Article 11 (freedom of association) and Article 14 (non-discrimination in relation to the rights protected by the Convention).

The claims under Articles 3 and 11 were easily dismissed with the Court noting that the applicant’s treatment fell well short of the severe treatment needed to constitute the “inhuman and degrading treatment” prohibited by Article 3 and that no evidence had been provided to substantiate a claim to breach of her freedom of association.

More narrowly and more controversially, it held, by 15 votes to 2, that there had been no violation of Articles 8, 9, 10 or 14. Despite the large majority, the decision was finely balanced. The Court rejected three of the four justifications offered by the French authorities for the law and accepted the fourth only with some hesitancy and with heavy reliance on the need for the Strasbourg Court to defer to the judgment of democratically-legitimated national authorities on these matters.

The Court treated the challenge under Articles 8, 9 and 10 as raising substantially similar issues; namely whether the restriction of the Applicant’s ability to dress in accordance with her beliefs and desires, could be justified by need to protect public order or the rights and freedoms of others.

The judgment reaffirms the Court’s conceptualisation of freedom of religion and belief as an individual right. Rightly shying away from the theologians’ task of adjudicating on what Islam does or does not require, the Court declared that it was “of no relevance” that most Muslim women do not see the face veil as necessary. The fact that the Applicant herself wished to wear the veil for religious reasons was, for the Court, sufficient to bring her actions within the scope of Article 9.

The French authorities put forward four arguments in defence of the prohibition: public safety (related to the need for individuals to be identifiable), the protection of equality between men and women, the protection of human dignity, and the protection of the minimum requirements of life in society.

Three of these four arguments were rejected by the Court. It found that, while public safety could be invoked to require individuals to reveal their faces for identification checks or in certain contexts, a blanket ban on face-veiling could only be sustainable where there was a general threat to public safety, something the French authorities had failed to show.

In relation to the protection of human dignity the Court held that, though it is an important value, a blanket ban could not be justified. It reached this conclusion on the basis that wearing a face veil “is the expression of a cultural identity which contributes to the pluralism that is inherent in democracy”. It further noted the “variability of the notions of virtuousness and decency that are applied to the uncovering of the human body” and that there was no evidence that those wearing the veil express contempt towards others or undermine the dignity of others (para 120).

The invocation of variability of notions of decency in relation to clothing has echoes of the Court’s decision in Vajnai v Hungary where it found a ban on the display of the red star to violate the Convention partly on the basis that the red star had a variety of meanings. The focus on the subjective intentions of veil wearers is interesting in that decisions on dignity have generally focused on objective notions of dignity rather than the perception of the individual carrying out the allegedly undignified act. For example, the Court of Justice of the European Union upheld a German restriction on games that simulated killing in the Omega Spielhallen case without inquiring into whether players of the game intended to violate respect for human life, and the UN Human Rights Committee rejected the complaint of a dwarf rendered unemployed by a French ban on “dwarf tossing” notwithstanding that the applicant felt his dignity was more compromised by unemployment than being thrown around by larger people as part of a performance. If, as the Court’s ruling suggests, it is the subjective intent of the individual that counts then laws seeking to protect collective ideas of dignity are on a much more shaky foundation than before.

The Court’s approach to the claim that the French law sought to protect equality between men and women was equally dismissive. While it accepted that protecting gender equality was a basis on which Convention rights could be restricted it found that “a State Party cannot invoke gender equality in order to ban a practice that is defended by women (…) unless it were to be understood that individuals could be protected on that basis from the exercise of their own fundamental rights and freedoms” (119). As in relation to human dignity, the Court adopts a notably individualistic position, arguing that if women choose to wear the veil, then the equality of men and women cannot be invoked to restrict such a choice.

This seems a little simplistic. Equality laws often restrict the liberty of individual members of a disadvantaged group to ensure the broader fair treatment of the group as a whole. For example, a woman who does not believe in the principle of equal pay for equal work, would not be permitted to take a job at a lower wage than her male colleagues on that basis. The Court might more defensibly have said that the symbolic harm done by the voluntary wearing of clothing that anonymises women in public does not do sufficient damage to the principle of gender equality to justify the restriction on liberty inherent in prohibition of such clothing. Instead it seems to make a balder claim that if women voluntarily carry out an action it can never be legitimate to use the goal of gender equality to restrict such an action. This seems insufficiently thought-through.

The only argument of the French authorities accepted by the Court was that which asserted that the law in question sought to protect “the minimum requirement of civility that is necessary for social interaction” (141). The Court found that “it indeed falls within the powers of the State to secure conditions whereby individuals can live together in their diversity” it held that “the Court is able to accept that a State may find it essential to give particular weight (…) to the interaction between individuals and may consider this to be adversely affected by the fact that some conceal their faces in public places” (141).

The text of Articles 8, 9 and 10 of the ECHR require that measures to restrict privacy, freedom of religion or belief and freedom of expression by justified by a need to protect “the rights and freedoms of others” (or public order and public safety, grounds already rejected by the majority in this case as insufficient to justify a veil ban).

The two dissenting judges sharply questioned whether ideas of civility and ‘living together’ fell within the concept of “rights and freedoms of others” saying that to characterise these ideas in this way was “far-fetched and vague”.

For its part, the majority, though finding that securing conditions for living together did fall within the concept of “rights and freedoms of others”, exhibited significant hesitancy before finding that the French legislation represented a proportionate attempt to protect such rights and freedoms. It noted that the small number of women wearing the veil meant that a blanket ban “may seem excessive” (145), that the ban may have the effect of isolating women (146), that other international bodies had considered the ban disproportionate (147) and that it was concerned by “certain Islamophobic remarks” that featured in the debate on the legislation (149).

Nevertheless, the majority concluded that the ban was proportionate. In so finding it attributed significance to the fact that that the law focused on face-covering rather than the religious connotation of the veil (151) and imposed only a light penalty (a fine of up to 150 Euro). Most significantly it found that the law could be seen as “seeking to protect a principle of interaction between individuals which, in [the State’s] view is essential for the expression not only of pluralism but also of tolerance and broadmindedness without which there is no democratic society” (153) and that the Court “has a duty to exercise a degree of restraint” in assessing the balance struck by the democratic process of a signatory state.

Given the lack of European consensus on this matter and given that this was a matter on which “opinions in a democratic society may reasonably differ” a wide margin of appreciation was called for and no violation of the Convention had been shown. As the law in question represented a proportionate restriction of Convention rights the Court concluded that any indirect discrimination inherent in the ban was justified and that the discrimination (Article 14) claim therefore also failed.

Where does this judgment leave the relationship between the individual, religion, the state and the law in Europe? Given the highly-controversial nature of the law in question and the broad political support for the legislation in question in France, it is unsurprising that the European Court fled to the familiar tools of the margin of appreciation to avoid making a potentially politically-explosive decision. The political firestorm caused by the initial decision in Lautsi v Italy (which held the presence of a crucifix in the classroom of a state school to violate the Convention and which was over-turned on appeal) highlighted the danger for European institutions in seeking to impose Europe-wide solutions on sensitive matters such as religion in public life.

The argument over whether the protection of the principle of ‘living together’ could be a proper basis for the restriction of a fundamental right highlights an important issue for both EU and ECHR law. The framework of rights as a means to adjudicate on disputes can be very problematic. Rights cover only limited aspects of important issues. The Strasbourg Court sees freedom of religion and belief as largely an individual right of choice in one’s beliefs yet this only covers limited aspects of the religious experience of the believer. The secular state is based on a commitment to avoiding religious contestation for political power and a commitment to transcending our religious differences when we come together as citizens in a democracy to make laws that will bind a religiously-diverse population. This is something that cannot readily be translated into a rights claim.

EU Single Market law has struggled to give adequate weight to collective goals such as trade union rights, environmental or public health goals because of the transformation by the CJEU of economic freedoms into fundamental rights. Just as “mandatory requirements” had to be read into the Treaty by the Court of Justice to allow economic free movement rights to be curtailed so as to protect collective goals, the Strasbourg Court has had to adopt an expansive interpretation of “rights and freedoms of others” to ensure adequate protection of broader commitments to religious coexistence.

The dissenting judges are right that the majority’s reading of this term is strained. However, it is necessary to consider whether any other approach is possible. Whether the approach of the French authorities in this case was or was not proportionate, our life together is about more than the rights that we hold against each other and there are important principles that underpin liberal democratic life that are very imperfectly translated into rights terms.

Given that the Court of Justice in Luxembourg tends to defer to Strasbourg on matters of fundamental rights, the decision to uphold the French law will mean that future challenges under EU law are unlikely to succeed. Such challenges could have alleged disproportionate discrimination on grounds of religion or gender in the employment sphere in violation of Directive 2000/78 (the legislation which bans discrimination in employment on grounds of religion, age, sexual orientation or disability) or a disproportionate restriction of free movement rights of a veil-wearing EU national who wished to live in France. The conclusion that the ban is legitimate and proportionate undermines such potential challenges to a significant degree.

The overall impression left by the judgment is of a Court that was uneasy with elements of the French law but was unwilling to intervene in such a controversial area. Indeed, its reasoning contained a number of reaffirmations of its previous case-law upholding less wide-ranging restrictions of religious symbols in particular contexts such as schools, the civil service and identity checks.

The relationship between law and religion is in a state of flux in many EU states. The UK is currently engaged in intense debate on the role of religion in education and the limits of its multicultural model. Sustainable solutions will require trial and error and give and take from each side. Rights will be part of this discussion but so too will more abstract commitments to pluralism and coexistence and communication and compromise. It is therefore perhaps wise of the Strasbourg Court not to seek to impose a Europe-wide solution in such a complex and changing area at this stage.

Barnard & Peers: chapter 9, chapter 20

Pregnant workers and EU citizens’ free movement rights

Steve Peers

Jessy Saint Prix, a young French woman, came to live in Britain in 2006, in order to embark on a career as a school teacher. In the event, she has learned rather more than she probably anticipated about EU law and the English legal system.

Having worked for a year in the UK as a teaching assistant, she started a PGCE course, which would qualify her to be a teacher. In the midst of that course, she became pregnant.  So she dropped her course and registered with an agency. She had a few stints working in nurseries, but she found that work too difficult, now that she was nearly six months pregnant. Then she looked for other work, but didn’t find any, and so she gave up work about 12 weeks before the expected date of confinement.

In the meantime, her baby arrived. But despite her previous work as a teaching assistant and her later agency work, the UK government refused her claim for income support, as she was defined not as a worker, but as a  ‘person from abroad’. She challenged this in court, winning at first instance. But the government won at two further levels, and then the Supreme Court referred questions on the case to the Court of Justice of the European Union (CJEU). The CJEU finally ruled in her favour today. 

The main thrust of the Court’s analysis was the circumstances in which EU citizens retain the status of worker, and therefore access to benefits, having previously been employed in the host Member State (like Ms. Saint Prix). The EU’s citizens’ Directive states that a person retains the status of worker if they are ‘temporarily unable to work as a result of an illness or accident’, or in ‘involuntary unemployment’ (subject to certain conditions) or undertaking vocational training, which must be linked to their prior employment (as in Ms. Saint Prix’s case, before she quit her course) unless they are unemployed involuntarily. The relevant provision (Article 7(3) of the Directive) does not state whether this list is exhaustive or not.

But for the Court, that didn’t really matter. It reiterated its established case law that the concept of ‘worker’, referred to in Article 45 TFEU, is a matter of primary law. So the concept couldn’t be narrowed down by secondary law, although the Court confirmed that, in accordance with its sex discrimination case law, pregnancy could not be equated to an ‘illness’ under the Directive.

In this case, the definition of a worker could encompass someone in Ms. Saint Prix’s situation, who had previously been working in the host State, who gave up work less than three months before the birth due to the physical constraints of late pregnancy, and who began work again three months after childbirth, without leaving the Member State in question. Bizarrely, the Court compares her situation to an earlier judgment concerning prisoners who retained ‘worker’ status during their jail time.

However, retaining worker status in such a case is not unlimited. It is conditional upon returning to work or finding another job ‘within a reasonable period after confinement’. But what is a ‘reasonable period’? The CJEU said that this concept must take account of the ‘specific circumstances of the case’ as well as national law on the duration of maternity leave, in accordance with the EU Directive on pregnant workers.

That Directive provides for a minimum period of 14 weeks’ leave, at least two weeks of which must come before confinement. However, national law can set longer periods, and most Member States do. Although the Commission proposed back in 2008 that the Directive should be amended, in order to extend maternity leave to a minimum of 18 months, this proposal has not been agreed, and the Commission is now contemplating withdrawing it.

It should be emphasised that the CJEU made no reference to compliance with national law on the period of leave taken before confinement. Also, while the pregnant worker’s Directive allows Member States to set a qualifying period of work of up to a year before obtaining the right to maternity pay, there is no such condition as regards the right to maternity leave. So for the purposes of free movement law, the only qualification is that the person concerned can be defined as a worker.

The Court’s final point was to note that in order to obtain permanent residence status under the citizens’ Directive, which requires five years’ stay on the territory, a period of up to one year’s interruption of residence due to pregnancy or childbirth does not break continuity of residence. So a fortiori this should mean that worker status is retained during breaks due to pregnancy. However, the Court clearly does not mean by this that worker status would be retained during breaks lasting up to one year, in light of its earlier reference to the limits on the rule.   

Unlike the Advocate-General’s opinion, the Court of Justice made no mention of the Charter of Fundamental Rights or to sex discrimination issues more generally. Nevertheless, its judgment is obviously of great importance to migrant women who are EU citizens. It could also have a knock-on effect on the interpretation of EU law apply to third-country nationals. For instance, the meaning of ‘worker’ under the EU/Turkey association agreement is the same as under EU free movement law.

What are the limits and possibilities of this judgment for migrant women? One limit is that they have to qualify as a worker in the host State in the first place.  The Court’s insistence that it will define the concept of ‘worker’, despite the possible constraints of secondary law, leaves open the possibility that it will also override the limits in the citizens’ Directive relating to job-seekers’ access to benefits. However, the Court will be ruling on this issue separately in the near future (see the opinion in the pending Dano case).

Another limit is that they have to return to work (ie with their employer), or to find fresh work if they were temporarily unemployed at the time of childbirth, as in Ms. Saint Prix’s case. In fact, EU law makes it easy for a pregnant worker to retain her employment, since dismissal on grounds of pregnancy is banned by the pregnant workers’ Directive, except as regards ‘exceptional cases’ not linked to the pregnant worker’s condition. Anyway, pregnant workers would not normally need to apply for income support in such cases, since they can claim maternity pay or allowances under the pregnant workers’ Directive instead. But access to income support might still be relevant for those pregnant workers who have not yet satisfied the qualifying period for maternity pay under that Directive, as discussed above.

It’s obviously more problematic for a new mother who was unemployed by the end of her pregnancy to find work by the end of the national maternity leave period. Although Ms. Saint Prix was fortunately able to do so, not everyone will be able to. This could raise the awkward question of whether income support would have to be repaid in such cases.

There will likely be some unfortunate cases where ongoing medical problems arising from pregnancy and/or childbirth make seeking work impractical, even after the end of the maternity leave period. This issue has led to a mass of complicated and controversial case-law in the context of sex discrimination law. However, it should be recalled that under the citizens’ Directive, ‘worker’ status is retained by those former workers who are too ill to work. So because the CJEU’s sex discrimination case law treats medical problems which initially arose from pregnancy or childbirth as an ordinary illness, once the period of maternity leave is over, any women with such problems will still retain their ‘worker’ status (and therefore access to any relevant benefits) for the purposes of free movement law.  

Also, there will be some cases where the new mother does not find new work by the end of the maternity leave period despite her best efforts, or (more rarely) where her initial employer has become insolvent. For these difficult issues, it should be recalled that the Court refers to an obligation to consider the ‘specific circumstances of the case’, without further explanation. Arguably, this adds to, rather than qualifies, the reference to national law on maternity leave periods. In any event, the more general limits on expelling unemployed EU citizens would apply in such circumstances.  

It should be noted that the judgment logically applies also to those women who have previously worked in the host State, and then stopped work due to accident, involuntary unemployment, or vocational training, subject to the conditions in the Directive, since they all retain the status of ‘worker’. For Ms. Saint Prix, it wasn’t feasible to complete her course at the time she had initially planned, given the timing of her baby’s arrival. But for other women, whose baby is due after the end of their course, this could be of great practical importance.

Finally, today’s judgment should be seen in its broader context. EU law has long encouraged and facilitated the equal treatment of women on the labour market, including those women who are pregnant or who are mothers. It has also long encouraged and facilitated the free movement of workers. This judgment is the first opportunity for the CJEU to bring these two aspects of EU law together, and to confirm that migrant pregnant women also benefit fully from EU free movement law. Indeed, it is self-evident from the facts of this case that Ms. Saint Prix – like migrant workers generally – paid far more into the UK’s tax and benefits system than the benefits which she received from it.

Barnard & Peers: chapter 13, chapter 20

Should the EU ratify the Istanbul Convention on violence against women?

Steve Peers

For many years, discussion as regards the EU and human rights has focussed on the growing role of the EU Charter of Fundamental Rights and the EU’s planned accession to the European Convention on Human Rights. This is understandable, given the importance of these developments. However, the EU’s relationship with other international human rights instruments is also worthy of further examination.

The EU is not able to sign up to older UN human rights treaties – such as the two Covenants and the Conventions relating to sex discrimination, race discrimination and migrant workers – because ratification of these instruments is only open to States. Similarly, only States can ratify ILO Conventions, although the EU sometimes coordinates its Member States’ position as regards ILO measures (see the discussion of the proposal to coordinate positions regarding new ILO forced labour measures).

However, more recent international human rights treaties do provide for possible accession by the EU, and indeed the Union has signed up to the UN Convention on the Rights of Disabled Persons (see the recent Z judgment of the CJEU). With the imminent entry into force of the Council of Europe’s Istanbul Convention on violence against women (which will come into force on 1 August 2014, after the deposit of the tenth ratification on April 22nd), the question now arises whether the EU should sign up to another human rights treaty. This post sets out the reasons why the EU should ratify the Convention at the earliest opportunity.

EU competence to ratify the Istanbul Convention

The EU is certainty competent to ratify the Istanbul Convention, if it wishes to do so. First of all, the Convention expressly provides (in Article 75(1)) for ratification by the EU, without setting any special condition in this respect.

Secondly, as a matter of internal EU law, the EU can sign up to any treaties which are (inter alia) ‘likely to affect common rules or alter their scope’ (Article 216 TFEU). Although EU law has not regulated the key substantive criminal law issues dealt with in the Istanbul Convention, the Convention does not limit itself to establishing rules concerning criminal liability, but also addresses a number of other issues. In particular, there are EU law measures concerning the Convention’s rules on: crime victims’ rights, cross-border application of protection orders (both civil and criminal), other forms of cross-border cooperation, and immigration and asylum issues (see the detailed list in the Annex).

It must be pointed out that if the EU ratifies the Istanbul Convention, it would not be replacing its Member States, but ratifying the Convention alongside them. In other words, the Convention would be another ‘mixed agreement’ which both the EU and its Member States have ratified, like the UN Disabilities Convention, (in future) the ECHR and many other treaties. The EU would not be legally obliged to adopt any more legislation affecting the issue of violence against women than it already has done. While I have argued before that there are good reasons (and legal powers) for the EU to adopt legislation establishing substantive criminal law rules in this field, this is a separate question from whether the EU ought to ratify the Convention.

Reasons why the EU should ratify the Istanbul Convention

First of all, the EU’s ratification of the Convention would provide encouragement to its Member States, as well as non-Member States of the EU, to ratify the Convention. It would increase the prominence of the Convention worldwide, perhaps inspiring changes to national law and regional treaty-making outside Europe.

Secondly, ratification would, as regards this Convention at least, address the argument that the EU has ‘double standards’ as regards human rights, insisting that would-be EU Member States and associated countries should uphold human rights standards that the EU does not apply itself. While the double standards argument can be answered as regards human rights treaties which the EU cannot ratify, it cannot so easily be rebutted as regards treaties which it can. If the EU is perfectly able to ratify the Istanbul Convention, but chooses not to, what moral authority does it have to ask non-Member States to do so?

Ratification of the Convention would enhance its role in EU law, because it could more easily be used as a parameter for the interpretation and validity of EU legislation (such as the legislation listed in the Annex, plus any future relevant measures). It would also mean that the Convention would already bind those EU Member States which had not yet ratified it, as regards those provisions within EU competence.

Furthermore, since the CJEU would have jurisdiction to interpret those provisions of the Convention which fall within the scope of EU competence, this would promote a uniform interpretation of those provisions within the EU. 

Next, the relevant provisions of the Convention would be more enforceable if they were enshrined in to EU law. While the CJEU ruled in the Z case that the UN Disabilities Convention did not have direct effect, and might rule the same as regards the Istanbul Convention, at least that Convention would have ‘indirect effect’ (ie the obligation to interpret EU law consistently with it), and the Commission could bring infringement actions against Member States which had not applied the Convention correctly, as regards issues within the scope of EU competence. Ensuring the enforceability of the Convention is all the more important since it does not provide for an individual complaint system.

Finally, ratification would subject the EU to outside monitoring as regards this issue, and avoid the awkward scenario of its Member States being monitored as regards issues within EU competence – meaning that the Convention’s monitoring body would in effect to some extent be monitoring whether EU Member States were complying with EU law.

[Update: the Commission proposed that the EU should sign and conclude the Convention in March 2016. See discussion here.]

Annex

EU competence regarding the Istanbul Convention

Articles 18-22, 25-28, 30(1), 50(1), 56, 57: crime victims Directive

Article 47: Framework Decision on recognition of criminal sentences

Article 59(1): family reunion Directive, citizenship directive

Article 59(2): Returns Directive, citizenship Directive

Article 60(1) and (2): Qualification directive

Article 60(3): Reception conditions directive; asylum procedures directive

Article 61: Qualification directive, Returns Directive

Article 62(1)(b) and (3): Crime victims Directive

Article 62(1)(d): protection orders legislation 

Article 62(1)(a) and (c) and (2): legislation on mutual recognition, et al in criminal and civil matters

Article 65: Data protection Directive; Framework Decision on data protection


Barnard & Peers: chapter 20, chapter 24, chapter 25, chapter 26

Surrogate Mothers' Day in the Court of Justice: Reflections on EU sex equality law

Steve Peers

Women who would love to give birth to children, but who are unable to do so for medical reasons, have always understandably attracted great public sympathy. Historically, the only option for them was adoption. But in the last few decades, other options have become available, in particular IVF and surrogacy. 

While EU law does not regulate any of these issues as such, it does regulate maternity leave, by means of the pregnant workers' Directive. Moreover, some other aspects of the employment implications of pregnancy are addressed by the Directive on sex discrimination in employment. For instance, the latter Directive bans discrimination against a woman who is undergoing IVF treatment but is not yet carrying an unborn child, according to the judgment of the Court of Justice of the European Union (CJEU) in Mayr.

But what is the position of surrogate mothers as regards maternity leave? Today the CJEU addressed that issue for the first time, in the judgments in CD and Z. The CD case concerns a British woman who is the commissioning mother of a child who was genetically fathered by her partner, while the Z case concerns an Irish woman who is the commissioning mother of a child who is genetically hers and her husband's. In both cases, a surrogate mother carried and gave birth to the child.

The Court took the view that the pregnant workers' Directive, which sets out the right to maternity leave, can only apply where the same woman becomes pregnant, gives birth and then takes maternity leave as regards a newborn baby (or babies), applying the Mayr judgment, which stated that the Directive only applied once a person was pregnant. The sex discrimination directive could not apply either, because a commissioning father would be treated the same as a commissioning mother; there was no evidence of indirect discrimination; and its ban on discrimination against women who have been pregnant or gone on maternity leave could not apply, since the pregnant workers' Directive did not apply. Since the issue fell outside the scope of EU law, the EU Charter could not apply as regards assessing the validity of the sex discrimination Directive.

In the Z judgment, the CJEU reiterated its reasoning, and also added some further points. It noted that the sex discrimination Directive expressly states that adoption leave is an optional matter for Member States. It then answered questions about the framework equality Directive, notably about the ban on discrimination on grounds of disability in that Directive. In the Court's view, since the EU Directive only applied to discrimination relating to employment, the disability in question has to hinder the worker's participation in professional life. But Ms. Z's condition did not affect her access to employment. Finally, the Court ruled that the validity of the framework equality directive could not be reviewed due to incompatibility with the UN Convention on the Rights of Disabled Persons (which the EU has ratified), because that Convention was only 'programmatic'.

These two different cases were the subject of opinions by two different Advocates-General, who expressed two radically opposed viewpoints. The CJEU essentially followed the opinion of Advocate-General Wahl in the Z case. On the other hand, Advocate-General Kokott, giving the opinion in the CD case, took the view that in light of social developments and the EU Charter of Fundamental Rights, the pregnant workers' Directive was capable of applying to cases where one woman carried and gave birth to a child, while another woman then took care of the newborn baby. Inspired perhaps by the judgment of Solomon, she then suggested that the maternity leave should be split between the two women concerned.

Comments

It seems odd that women who undoubtedly consider themselves as being new mothers and who are indisputably looking after a baby who is genetically theirs (or their partner's) fall outside the scope of EU law, given its detailed regulation of maternity leave. Certainly, the key feature of these judgments - the intention that the pregnant workers' Directive apply to the same woman who got pregnant, gave birth and looks after a child - is surely a correct assessment of the legislature's intention. Having said that, the application of the Mayr judgment is a little unconvincing, since it concerned the question of whether the woman concerned had ever got pregnant at all, long before she had a baby to look after.

The EU legislature's decision to treat adoption leave differently from maternity leave and pregnancy in the sex discrimination Directive is undoubtedly clear too. And logically, since the framework equality Directive only applies to employment, it can only be applied to a disability linked to employment. But the CJEU's application of this principle is not fully convincing. In fact, the Z case is difficult to distinguish on this point from the Coleman judgment, where the disablity of the worker's child was in principle connected to her loss of employment, so the Directive applied. If the Directive applies where there is a link between the worker's employment and another person's disability, why does it not apply where there is a link between the worker's employment and the worker's own disability, as long as that disability has an impact, however indirect, upon her employment - in this case, her maternity leave?

As for the UN disability rights Convention, the Court's ruling that it cannot be relied upon to challenge the validity of EU law is, with great respect, clearly wrong. The Convention includes a ban on disability discrimination in its Article 5(2): this is exactly the sort of equality clause that the Court usually accepts can be directly effective, and which therefore provides for a ground for challenging the validity of EU acts. A better approach, leading to the same result, would have been to rule that the application of the Convention to the issues of the Z case falls within the competence of the Member States, not the EU (the Convention is a 'mixed agreement'), given the Court's ruling that EU legislation was not applicable to this case anyway.

There is, of course, direct discrimination in these cases: not between men and women (since men can also be infertile), but between different categories of mothers: those who are looking after a child whom they have given birth to, and those who are looking after a child whom they have not given birth to. The two groups are not similarly situated as regards pregnancy and childbirth, but they are in an identical position as regards childcare. Surely the general obligation to ensure equal treatment set out in Article 21 of the Charter could have been relevant here.

Furthermore, the Court's assertions as regards indirect discrimination are not convincing, as it is surely more likely in practice that women, rather than men, will want to take time off work to look after a newborn. Moreover, in a case involving same-sex couples, it could be arguable that a failure to give them equal treatment with opposite-sex couples as regards maternity or adoption leave would be discriminatory on grounds of sexual orientation, given that it is not possible for same-sex couples to have a child who is genetically the child of both of them.  

The Court's literal approach to the EU legislation has also lost sight of its underlying purpose in two respects. First of all, a woman who wishes to take time off work following the adoption of a child (whether there has been a surrogate mother involved or not) faces the same work/life balance issues as a woman who has given birth to a child. The underlying goal of EU law on sex equality as regards employment is to ensure that women have equal access in practice to the workforce. Women who have adopted a child are bound to face problems in that regard, similar to those facing women who have given birth. Secondly, from the perspective of the best interests of the child (an issue addressed by Advocate-General Kokott), and the objective of ensuring that a mother can bond with her child (referred to expressly by the Court), it should not matter whether that child has been adopted or not.

These points lead us to a more radical question: why should the EU legislature itself facilitate massive inequality as regards the care of newborn children? Advocate-General Kokott, noting that the Charter requires the child to have contact with both its parents, then applies that to the rights of the mother. But if we are going (as she suggests) to sever the link between pregnancy and childbirth, on the one hand, and childcare on the other, then why should we assume that the childcare has to be provided by the mother, by means of granting women maternity leave, but not granting parallel (or transferable) paternity leave to men? Indeed, from this perspective, the more generous the maternity leave, the greater the distinction between the roles of men and women as regards childcare, with a corresponding greater impact upon engagement in the workplace. Simply put, maternity leave is the gilded cage of sex discrimination.

Barnard & Peers: chapter 20

Violence against women: Can EU law play a bigger role in combatting it?

Steve Peers

Today's report from the EU's Fundamental Rights Agency (FRA) on the scale of violence against women within the European Union is simultaneously an enormously impressive attempt to collect standardised data on this important issue, and a very upsetting indication at how prevalent such forms of violence are. The FRA report makes a large number of detailed and useful recommendations to Member States and the EU about how to address this issue, as regards changes to national law, the interpretation of existing EU laws, and the role of education and awareness-raising. Yet it does not suggest that the EU adopt legislation on the specific subject. In my view, the EU could - and should- do so. So despite the great value of the FRA's report, it is, in my view, unfortunate that it did not take this opportunity to advocate EU legislation.

The EU's ability to act

No matter how desirable a particular law might be, the EU can only act when powers have been conferred upon it. To what extent can it act to deal with violence against women? First of all, Article 83(1) TFEU gives the EU power to adopt criminal law measures on specific offences which were deemed by the Treaty drafters to have a EU-wide impact. This includes legislation concerning 'trafficking in human beings and the sexual exploitation of women and children'. Indeed, as the FRA report points out, the EU has adopted Directives on trafficking in persons and sexual offences against children.

The EU has also used its power to adopt a Directive on the protection of crime victims generally, which, as the report points out, contains specific provisions on protection against gender-related violence. However, this Directive does not address issues of substantive criminal law. Neither does the EU legislation on cross-border enforcement of criminal law protection orders or civil law protection orders.

Could the EU adopt a substantive criminal law measure on other aspects of violence against women? It does have power to adopt criminal law measures on offences not listed in Article 83(1), if (according to Article 83(2)) this is 'essential to ensure the effective implementation of a Union policy in an area which has been subject to harmonisation measures'. As regards gender equality, there is (inter alia) EU law on sex equality in employment and sex equality as regards goods and services. It seems obvious that violence against women could impact in practice upon their equal access to employment or goods and services. The FRA report mentions in particular the fear of crime that deters women from moving freely. Of course, violence against women shouldn't normally be examined in such utilitarian terms, but it is necessary to do in the particular context of proving the EU's competence to act. And this analysis would apply equally as regards EU legislation concerning racial hatred, which I discussed in a previous blog post.

Should the EU use its powers?

The FRA report makes many references to the Council of Europe's recent Convention on violence against women, and encourages Member States and the EU to ratify it. Of course, this would be desirable, since the Convention is a comprehensive recent instrument which is moreover open to non-EU Member States.  But is it enough? Certainly the EU did not simply rely on the Council of Europe Conventions on trafficking in persons or the exploitation of children when it adopted its own legislation on the issue, or upon the UN Convention on the Elimination of Discrimination Against Women when it adopted its sex equality laws.

The fact is, while ratification of the Convention should be encouraged, most Member States have not yet ratified it. Moreover, EU law has an inherent advantage over international treaties in terms of its enforceability, given that the Commission can bring proceedings against Member States for non-application or incorrect application of the law, and individuals can rely on it before the national courts.

What specific issues could EU legislation address? Here, the FRA report points to some failings in national law which could be addressed by an EU measure, ensuring that the EU measure would add value compared to the existing legal position. In particular: some national laws have a restrictive definition of sexual violence; one Member State does not criminalise rape of married women; some Member States do not address repeat victimisation; some national laws do not address psychological violence, stalking or cyber-harassment; and current EU anti-discrimination law only concerns sexual harassment at the workplace, not in other contexts. This represents a significant catalogue of issues which EU law could usefully address.

Conclusion

The FRA's suggestion that the EU ratify the Council of Europe Convention presents an opportunity to bring the two issues (can the EU act, and should it act) together. According to EU external relations law, the EU can ratify treaties not just as regards its competence which it has already exercised (as regards crime victims' rights, for instance), but also in respect of competences which it has not exercised. Furthermore, a treaty which the EU has not yet ratified can be sent to the Court of Justice of the European Union, in order to examine its compatibility with EU law, including as regards EU competences. So the European Parliament, the Council, the Commission or a Member State could use this process to ask the Court to clarify the exact extent of the EU's powers to conclude the Convention as regards substantive criminal law.

[Update: in March 2016, the Commission proposed that the EU sign the Council of Europe Convention. See further discussion here.]

Barnard & Peers: chapter 20, chapter 25