Johanna Westeson - The ICHRP

Treaty, for the reason that, even at a time in which human rights and non-discrimination
did not constitute core pillars of the EU (then EEC), addressing discrimination on grounds
of sex and nationality was considered key in ensuring the free flow of goods and services.
The principle of non-discrimination on ground of sex, in other words, was considered a
fundamental element for a functional market. Since then, the principle of nondiscrimination
has gained wider recognition within EU law, and grounds other than sex
and nationality have been added. Thus, while the principle was justified primarily by
economic reasons, it has since gained the status as a social and human right central to EU
law. 54
The principle of equality between men and women is recognized as one of the EU’s goals
described in Articles 2 and 3 of the EC Treaty. 55 On December 1, 2009, the Treaty of
Lisbon entered into force, introducing the EU Charter of Fundamental Rights into
European Primary law. 56 The Charter reinforces the fundamental nature of the prohibition
of discrimination within the Union. It lists several prohibited grounds for discrimination
including the ban of sexual orientation discrimination. This is the first internationally
binding document making a ban on such discrimination explicit:
Any discrimination based on any ground such as sex, race, colour, ethnic or social origin,
genetic features, language, religion or belief, political or any other opinion, membership of a
national minority, property, birth, disability, age or sexual orientation shall be prohibited.
(Art 21.1)
Equality between women and men is established in a separate article in the Charter:
Equality between men and women must be ensured in all areas, including employment, work
and pay. The principle of equality shall not prevent the maintenance or adoption of measures
providing for specific advantages in favour of the under-represented sex. (Article 23)
The Charter has also adopted gender neutral language, for example that “[e]veryone has
the right to respect for his or her private and family life, home and communications”
(Article 7, emphasis added).
The Treaty of Lisbon, in addition to incorporating the Charter of Fundamental Rights,
provides that the Union shall “combat social exclusion and discrimination, and shall
54 See Samantha Besson, “Gender Discrimination under EU and ECHR law: Never Shall the Twain Meet?”,
Human Rights Law Review HRLR 8 (2002), 647-682, p. 656.
55 Article 2 reads: “The Community shall have as its task, by establishing a common market and an economic
and monetary union and by implementing common policies or activities referred to in Articles 3 and 4, to
promote throughout the Community a harmonious, balanced and sustainable development of economic
activities, a high level of employment and of social protection, equality between men and women, sustainable
and non-inflationary growth, a high degree of competitiveness and convergence of economic performance, a
high level of protection and improvement of the quality of the environment, the raising of the standard of
living and quality of life, and economic and social cohesion and solidarity among Member States.” (emphasis
added). Article 3 specifies the activities the Community will undertake for the purposes of Article 2, and
concludes with stating: “In all the activities referred to in this Article, the Community shall aim to eliminate
inequalities, and to promote equality, between men and women.” (Art 3(2)).
56
The text of the Treaty of Lisbon does not include the Charter. However, Article 1(8) of the Treaty of
Lisbon provides that Article 6(1) of the Treaty on European Union is to be replaced by the following: "The
Union recognises the rights, freedoms and principles set out in the Charter of Fundamental Rights of the
European Union of 7 December 2000, as adapted at Strasbourg, on 12 December 2007, which shall have the
same legal value as the Treaties.”
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