competences of the “union” and sex equality: a comparative look at the european union and the...
TRANSCRIPT
Competences of the “Union” and Competences of the “Union” and Sex Equality: A Comparative Sex Equality: A Comparative
Look at the European Union and Look at the European Union and the United Statesthe United States
Barbara HavelkovaBarbara Havelkova
Dubrovnik; April 2009Dubrovnik; April 2009
1.1. How does a “federal” system impact gender How does a “federal” system impact gender equality (principle/right)?equality (principle/right)?
2.2. Who is obliged to observe it?Who is obliged to observe it?1.1. Negative freedomNegative freedom2.2. Center/units/individuals (vertical)Center/units/individuals (vertical)3.3. Legislative/executive/judiciary (horizontal)Legislative/executive/judiciary (horizontal)
3.3. Is anyone obliged to counteract its breach?Is anyone obliged to counteract its breach?1.1. Positive obligation on the government (central/state)Positive obligation on the government (central/state)2.2. Should you?Should you?
4.4. Do you have to power/competence to do so?Do you have to power/competence to do so?1.1. Secondary legislationSecondary legislation2.2. Can you?Can you?
ContentContent
Intro of trajectoriesIntro of trajectories Constitutional right to gender equalityConstitutional right to gender equality Construction of legislative competencesConstruction of legislative competences Secondary legislation (statutory rights)Secondary legislation (statutory rights) Judicial reviewJudicial review DiscussionDiscussion
IntroIntro
USUS Special position of raceSpecial position of race
EU EU Special position of sex Special position of sex (Nationality – a different story – economic (Nationality – a different story – economic
rights of movement – trans-border)rights of movement – trans-border)
Constitutional rightsConstitutional rights
USUS 1868 Fourteenth Amendment Equal 1868 Fourteenth Amendment Equal
Protection Clause binds the statesProtection Clause binds the states 1791 Due Process Clause of the Fifth 1791 Due Process Clause of the Fifth
Amendment binds the UnionAmendment binds the Union EUEU
Case-law-based fundamental right and Case-law-based fundamental right and principleprinciple
IssuesIssues
USUS Is there a positive obligation on the government? Is there a positive obligation on the government?
((DeShaney caseDeShaney case)) Does Constitution bind private actors? (Does Constitution bind private actors? (Shelley v. Shelley v.
KraemerKraemer)) EUEU
Center bound it all its activities (but standard of Center bound it all its activities (but standard of scrutiny minimal) (scrutiny minimal) (RinkeRinke))
States are bound “States are bound ““within the scope of Community “within the scope of Community law”law” ( (Mangold, BartschMangold, Bartsch))
Horizontality? (Horizontality? (Mangold, BartschMangold, Bartsch))
““Scope of Community Law”Scope of Community Law”
AG Sharpston in Bartsch (69)AG Sharpston in Bartsch (69)1.1. implement EC law implement EC law 2.2. invoke some permitted derogation under EC lawinvoke some permitted derogation under EC law3.3. otherwise fall within the scope of Community law otherwise fall within the scope of Community law
because some specific substantive rule of EC law is because some specific substantive rule of EC law is applicable to the situationapplicable to the situation
-> MEMBER STATES ARE NOT BOUND BY THE -> MEMBER STATES ARE NOT BOUND BY THE EUROPEAN EQUALITY PRINCIPLE THE EUROPEAN EQUALITY PRINCIPLE THE SAME WAY THE US STATES ARE BOUND SAME WAY THE US STATES ARE BOUND BY XIVTH AMENDMENT!BY XIVTH AMENDMENT!
Charter?Charter?
Art. 51 (1) EUCFR: "The provisions of this Art. 51 (1) EUCFR: "The provisions of this Charter are addressed to the institutions, Charter are addressed to the institutions, bodies and organs of the Union with due bodies and organs of the Union with due regard for the principle of subsidiarity and regard for the principle of subsidiarity and to the Member States to the Member States only when they are only when they are implementing Union lawimplementing Union law".".
CompetencesCompetences
USUS Commerce Clause & XIV AmendmentCommerce Clause & XIV Amendment
• Violence against Women Act? (Violence against Women Act? (United States v. United States v. MorrisonMorrison))
EUEU The counterpart of the Interstate Commerce The counterpart of the Interstate Commerce
Clause in the EC Treaty (Article 100; today Clause in the EC Treaty (Article 100; today 94) & the substantive equal pay Article 119 94) & the substantive equal pay Article 119 (today 141) OR the “residual power” Article (today 141) OR the “residual power” Article 235 (today 308) 235 (today 308) • EC kept strictly to economic and social issuesEC kept strictly to economic and social issues
Art. 13 TECArt. 13 TEC
““Without prejudice to the other provisions of this Treaty and within the limits of the powers conferred by it upon the Community, the Council, acting unanimously on a proposal from the Commission and after consulting the European Parliament, may take appropriate action to combat discrimination based on sex, racial or ethnic origin, religion or belief, disability, age or sexual orientation.””
Limited competence provisionLimited competence provision Doesn’t confer any right as suchDoesn’t confer any right as such
Charter?Charter?
51 (2) This Charter does not establish any new power or task for the Community or the Union, or modify powers and tasks defined by the Treaties.
52 (2) Rights recognized by this Charter which are based on the Community Treaties or the Treaty on European Union shall be exercised under the conditions and within the limits defined by those Treaties.
LisbonLisbon
Interesting competence development in cross-Interesting competence development in cross-border crime areaborder crime area
Art. 69 BArt. 69 B““by means of directives adopted in accordance by means of directives adopted in accordance
with the ordinary legislative procedure […] with the ordinary legislative procedure […] minimum rules concerning the definition of minimum rules concerning the definition of criminal offences and sanctions in the areas of criminal offences and sanctions in the areas of particularly serious crime with a cross-border particularly serious crime with a cross-border dimension” aiming among others at “trafficking in dimension” aiming among others at “trafficking in human beings and sexual exploitation of women human beings and sexual exploitation of women and children”and children”
Secondary legislationSecondary legislation
USUS Statutes (Civil Rights Act)Statutes (Civil Rights Act)
EUEU DirectivesDirectives
Judicial reviewJudicial review
USUS Certiorari – not all cases reach to Supreme Certiorari – not all cases reach to Supreme
CourtCourt EUEU
Preliminary questions procedurePreliminary questions procedure
AddressesAddresses USUS
the federal government (by virtue of the Fifth the federal government (by virtue of the Fifth Amendment), Amendment),
the states (through the Fourteenth Amendment) the states (through the Fourteenth Amendment) individuals directly (through the Civil Rights Act)individuals directly (through the Civil Rights Act)
EUEU the center binds itself (case-law based fundamental the center binds itself (case-law based fundamental
right), right), the states (the fundamental right in implementing EC the states (the fundamental right in implementing EC
law; Article 141 and the directives), law; Article 141 and the directives), individuals (both directly by virtue of Article 141’s individuals (both directly by virtue of Article 141’s
horizontal direct effect, and by national law horizontal direct effect, and by national law implementing the directives)implementing the directives)
