The Jean Monnet Program
European Union Jean Monnet Chair
Jean Monnet Working Paper 10/02
Limits of the Classic Method:
Positive Action in the European Union after the New Equality Directives
NYU School of Law New York, NY 10012
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© Daniela Caruso 2002
New York University School of Law
New York, NY 10012
Limits of the Classic Method:
Positive Action in the European Union after the New Equality Directives**
I. Groups in the Jurisprudence of the European Court of Justice: Gender as a Start 8
1. The ECJ on Affirmative Action: First Steps 9
2. The Current Paradigm of Positive Action 12
3. The Paradigm’s Teeth 14
4. "Group Rights" in the ECJ Discourse 17
5. Judicial Borrowings 20
6. Style Matters 22
7. Positive Action Beyond Gender: The New Equality Directives 24
II. Equality Revisited: Identity-Based Redistribution in the EU 26
1. The traditional legal framework of positive action, and the challenge of subsidiarity 27
2. The Uncertain Boundaries of Equality in the EU 29
3. The theorem of individual rights and its corollary dichotomies 30
4. The misleading character of the individual/group dichotomy: positive action as identity-based redistribution. 34
5. Culture and Welfare as vehicles for identity-based redistribution in EU policies 35
6. Identity-based redistribution in France… 39
7. …and in Germany 44
8. Culture/Welfare: another self-effacing dichotomy 49
9. The question of legitimacy 52
III. Positive action beyond ECJ’s review 54
1. The case for supranational restraint in the judicial review of positive action 55
2. Positive action à la Keck. 56
3. What about rights? 59
A. Group rights and beyond. 60
B. Individual rights, positive action and new forms of governance. 61
Concluding Remarks 65
A rather traditional version of the equality paradigm, based on individual rights and identity-neutral justice, has so far controlled the ECJ's decisions on positive action for women in the workplace. The same paradigm inspires the new equality directives, and will probably continue to guide the Court in the scrutiny of States' positive action measures in favor of racial, ethnic or religious groups. Against this trend, this article advocates a drastic revirement in the supranational adjudication of positive action disputes, leading to broader State autonomy in the experimentation of new formulae for the mainstreaming of marginalized groups. Alternative forms of European governance are apt to ensure, better than supranational judicial review, the coordination of national policies in this respect.
The argument builds upon three analytical pillars: a) a critique of the ECJ's positive-action case law, based on the Court’s over-reliance on the prescriptive power of the group/individual rights dichotomy; b) a re-conceptualization of positive action as identity-based redistribution. Rather than exceptional aberration from the canon of individual equality and blind justice, positive action can be conceived of as one among many forms of allocation of resources in favor of identity-defined groups; c) a collection of examples of identity-based redistribution, sharing the essence, if not the form, of positive action. These examples show how measures targeting ethnic or religious groups for redistributive purposes are not at all new or uncommon in both national and supranational policies. They are natural adaptations of welfare canons to the diversity of social landscapes. The dominant rhetoric of identity-blind justice fails to capture such realities and thwarts the debate on the problems of a multicultural Europe.
Against the background of divergent national approaches, the European Court of Justice, in a handful of fin de siècle decisions, has entrenched itself in a cautious and qualified endorsement of positive action for women in the workplace. In its pronouncements on this point, as well as in its general handling of equality issues, the Court has shown some comfort in the use of balancing tests variously designed by high judicial fora throughout the western world. It has espoused conventional methods for scrutinizing States’ positive action, such as the identification of legitimate State goals and the narrow tailoring of means to ends, and it has demonstrated readiness to adopt conveniently sliding levels of scrutiny, depending on each case’s circumstances. The nuances of this judicial discourse, however, fail to soften the Court’s rigidly individualistic conception of rights. Rather than addressing the issue of gender-based discrimination in terms of collective justice, the ECJ has consistently spoken the language of individual equality and of neutral enforcement of non-discrimination rules. It has, in other words, clung to Europe’s primeval fear of groups as potential usurpers of individual rights.1
Yet, the subject of collective justice is of growing importance. Gender equality is only one amongst many possible claims based on collective experiences of discrimination. The European project of integration, in its most updated version, extends the jurisdictional scope of the European Court of Justice far beyond its original core of subject matters. The growing impact of diversity on the social fabric of the old Continent is a matter of supranational concern. The problems of discrimination based on racial, ethnic or religious identity are now within the Court’s reach. Member States are currently in the process of implementing two directives, meant to prohibit discrimination based on racial, ethnic or religious differences. Both directives make room for member States’ enactment of positive action measures in favor of groups, in terms which resemble previous legislation concerning gender equality. In all likelihood, the Court will interpret such terms along the lines of its previous holdings. This is, however, a chapter of EU history that should not be written.
Against the current trend, I advocate a policy of judicial restraint in the supranational scrutiny of positive action cases. The Court, I argue, should now allow for broader State autonomy in the experimentation of new formulae for the mainstreaming of marginalized groups. Alternative forms of European governance are apt to ensure, better than supranational judicial review, the coordination of national policies in this respect. The multifarious socio-economic and cultural problems posed by the coexistence of multiple identities within the European constituency cannot be solved by means of uniform, EU-wide solutions. Nor can supranational adjudication, based on rights and centralized enforcement, do justice to the diverse legal and political sensibilities of national or subnational decision-makers.
This argument builds upon three analytical steps. In Part I, I articulate a critique of the ECJ's positive-action case law, based on the Court’s over-reliance on the prescriptive power of the group/individual dichotomy. This critique is entirely internal to the logic of the Union’s legal system. The US debate on the plausibility of a group-sensitive understanding of the Equal Protection clause, started a quarter-century ago by Owen Fiss and still ongoing, is intentionally kept at the margins of the analysis.2
In Part II, I propose a re-conceptualization of positive action. Rather than exceptional aberration from the canon of individual equality and blind justice, positive action can be conceived of as one among many existing forms of allocation of resources in favor of identity-defined groups. I provide several illustrations of identity-based redistribution, sharing the essence, if not the form, of positive action. These illustrations show how measures targeting ethnic or religious groups for redistributive purposes are not at all new or uncommon in both national and supranational policies. They are natural adaptations of welfare state canons to the diversity of social landscapes. The dominant rhetoric of identity-blind justice fails to capture such realities and thwarts the debate on the problems of a multicultural Europe.
In Part III, I provide specific technical ground for the argument that the ECJ should not review at all positive action policies enacted by member States.3 The several prohibitions of discrimination in the EC Treaty do not provide an appropriate match for the complex theme of positive action. The subject finds better analogues in other Treaty provisions, which deal more directly with the true scope of positive action – namely, the fight against social exclusion—and open up alternative avenues for an EU-wide dialogue on the rehabilitation of marginalized collective identities.
This article contributes, from the margins, to the broader discussion on the ongoing evolution of European constitutionalism. Scholars have emphasized the chasm between the ‘classic’ method of supranational lawmaking, and the new forms of European governance.4 The ‘classic Community method’ reproduces, at a supranational level, the member States’ ‘modernist tradition,’ anxious about legitimacy, constitutionalism and fundamental rights.5 The new ways of European governance rely instead on grass-root deliberation and enhanced political dialogue. My contribution to that discussion lies in demystifying, with particular regard to group justice, a few myths surrounding the modernist tradition. If looked at closely, mainstream policies at both national and European level already embrace techniques for accommodating identity-based instances that a conventional rights discourse is incapable of capturing. When myths vanish, the new mechanisms of European governance seem no longer at odds with tradition, but rather placed on a continuum of plausible institutional choices.