Johanna Westeson - The ICHRP

the principle of equal treatment between men and women (above), and between persons
irrespective of racial or ethnic origin (2000).
The Directive covers both direct and indirect discrimination, and private as well as public
sectors, with regard to employment, self-employment, occupation, access to vocational
guidance and vocational training, employment and working conditions, dismissal and pay,
and labor union involvement (Art 3). Harassment is deemed a form of discrimination (Art
2.3), and the burden of proof shifts to the respondent once facts suggest that discrimination
has occurred (Art 10.1). This latter rule does not apply in criminal proceedings. The
Directive does not prohibit positive action for disadvantages linked to the protected
grounds (Art 7). It requires that effective judicial or administrative remedies be available,
and it provides for legal standing for organizations having a legitimate interest in the
application of the norms, among others (Art 9).
On 2 July 2008, the Commission adopted a proposal for a new directive which would
provide for the protection against discrimination on the same grounds (age, disability,
sexual orientation, and religion) beyond the workplace. It would ensure equal treatment in
the areas of social protection, including social security and health care, education, and
housing. 62 As of 31 December 2009, the proposal has still not been adopted by the
European Council.
European Court of Justice judgments
The European Court of Justice has a rich jurisprudence in which it applies the principle of
non-discrimination on the basis of sex. The cases are numerous: as early as 1976 the
Court established that the principle of non-discrimination on the basis of sex in relation to
equal pay for equal work could be applied directly to member states without the
requirement of domestic legislation. 63 Two years later, in Gabrielle Defrenne v Société
Anonyme Belge de Navigation Aérienne Sabena, 64 the Court recognized that the equality
between men and women was a general principle and a fundamental right of EU law:
The court has repeatedly stated that respect for fundamental personal human rights is one of
the general principles of community law, the observance of which it has a duty to ensure.
There can be no doubt that the elimination of discrimination based on sex forms part of those
fundamental rights. 65
In regard to discrimination on the basis of sexual orientation, the European Court of
Justice ruled on a topic similar to that of Karner v. Austria in Maruko v.
Versorgungsanstalt der deutschen Bühnen. 66 Here, the court examined whether the abovementioned
Directive 2000/78 applied to a German occupational pension scheme. The
applicant had been in a so-called life partnership (civil union for same-sex couples
according to German law) with another man. When the partner died, the applicant applied
to the pension institution for a widower’s pension, but was denied the pension on the
62 Information available at
http://europa.eu/rapid/pressReleasesAction.do?reference=IP/08/1071&format=HTML&aged=0&language=E
N&guiLanguage=en. Last visited on 2 December 2009.
63 Gabrielle Defrenne v Société Anonyme Belge de Navigation Aérienne Sabena, Case 43/75 [1976],
ECR 455 at para. 40.
64 Case 149/77 [1978].
65 Ibid, at paras 26-27.
66 Case C-267/06, decided on 1 April 2008.
34