Litigation, Legislation and Mobilization

We begin by examining the available opportunities for transnational legal mobilization in this time period. The ECJ had just issued its first equality ruling in the 1970s, the Defrenne I decision. ^{Footnote 11} While the 1970s elicited a smaller number of preliminary rulings in this policy domain compared to other decades, the litigation in this time period was legendary. The landmark Defrenne decisions were directly attributable to the tenacity and dedication of a feminist activist, Belgian labor lawyer Elaine Vogel-Polsky who, in the late 1960s, saw Article 157 (TFEU) (ex Article 119) as a stepping-stone to advancing women’s rights. ^{Footnote 12} The Defrenne II decision in 1976 created the direct effect of Article 157 (TFEU), enabling women throughout Europe to bring discrimination claims before national courts, and subsequently the third decision in 1978 developed a doctrine stating equality was a fundamental EU right. ^{Footnote 13}

These rulings provided an important opportunity structure for women throughout the Union by creating new rights that effectively gave them an opportunity to not only change national policies but to begin to play a role in the Court’s subsequent expansion of EU equality law. ^{Footnote 14} Prior to these rulings, Article 157 (TFEU) remained the only legal instrument or opportunity for equality claims. Further, the Treaty provision merely placed duties on member state governments: a general requirement to apply the principle of equal pay that all member states had failed to implement by the December 1962 deadline. Both the Commission and subsequently the member state governments attempted to give some application to Article 157 (TFEU) in the early 1960s by clarifying the principle of equal pay and establishing precise targets and deadlines. However, these attempts proved futile, with Article 157 (TFEU) appearing to lack an enforceable right and with little incentive for effective implementation. The Court’s rulings of the 1970s would begin to change this. By creating a new set of EU equality rights, these judicial decisions provided women with a new supranational political opportunity structure to demand protection from discrimination. Further, these new political opportunity structures were particularly compatible with the litigation strategies already being pursued by women’s organizations and activists. ^{Footnote 15} Vogel-Polsky’s strategic activism in the Defrenne cases is an example of this and also the subsequent Article 267 (TFEU) equality cases that were supported by national equality agencies, such as the British EOC or the Danish trade unions. ^{Footnote 16}

At the same time, the 1970s marked the beginning of Union legislative action and a Brussels-based infrastructure to support this legal expansion. As we have seen, the Court’s rulings and these legislative advancements were linked and, together, developed a strong net of political opportunities for women at the EU level. The Court’s Defrenne I judgment in 1971 made a clear argument for why Union policy makers needed to expand the scope of Article 157 (TFEU) in order to achieve its objectives. A few years later, the Commission presented a series of legislative proposals that attempted to achieve these ends. These proposals formed part of the first Social Action Programme that was adopted in 1974. While the program served as a “public relations exercise” to renew waning public support for the Union, the program emphasized the importance of equality and gave the Commission the opportunity to present its proposals on women’s rights. ^{Footnote 17} Subsequently, while member state governments were negotiating and adopting the Equal Pay Directive (1975) ^{Footnote 18} and the Equal Treatment Directive (1976), ^{Footnote 19} the Defrenne II case was working its way through the Belgian court system. The Court’s Defrenne II decision (1976) paralleled these legislative advancements by giving further meaning to EC equality law, yet this ruling far surpassed member state intentions by creating directly enforceable rights: an EU political opportunity structure that would soon be utilized by women against their own governments.

The Social Security Directive (1979) ^{Footnote 20} was also influenced by the Court’s jurisprudence. The Defrenne I decision argued that statutory social security schemes were outside the scope of Article 157 (TFEU) yet suggested that occupational schemes were not. The Commission regarded this as untenable and thus included social security in the initial drafts of equality legislation. ^{Footnote 21} Together, these legislative advancements in the 1970s created a body of European equality law that in theory provided a comprehensive ban on sex discrimination in the workplace. Through ECJ precedent and EU legislative action, the rules and procedures that served as opportunities for sex discrimination claims increased in both formality and magnitude. The Commission also began developing specific policy units in Brussels during this time period in order to support these new legislative developments. These included the Women’s Information Service as part of DG Information and Communication, and DG Employment and Social Affairs created a Women’s Bureau—both were established in 1976. Together, these offices began to provide greater inclusion of gender equality claims in EU policy-making processes.

Mobilization, Institutionalization, and Public Inclusion

In response to the growing number of EU political opportunities in the area of social provisions, transnational social interests began knocking on doors in Brussels in the late 1950s and 1960s. And by the mid to late 1970s, the growth rate of interest groups had doubled from the previous two decades. Table 1 displays the transnational organizations involved in EU social provisions that were founded between 1970 and 1979. The policy-making capacity and competence of EU organizations was expanding, and these groups heard the message loud and clear. As in previous decades, these groups were primarily trade unions and religious organizations. However, the groups in this period placed a higher priority on their direct commitment and involvement in the promotion of general equality rights for women. As the political opportunities for women’s issues in EU politics increased in both formality and magnitude, as seen through ECJ precedent, equality legislation, and Commission offices such as the Women’s Information Service, we could see a shift in mobilization. Further, the growing presence of women activists within these EU organizations was crucial in making EU politics more accessible to both NGOs and trade unions involved with women’s issues. ^{Footnote 22}

Table 1

Transnational organizations in the area of EU social provisions and gender equality by organizational type and founding date, 1970–1979

Source:

Data compiled by author from Alan Butt Philip and Oliver Gray, eds., Directory of Pressure Groups in the EU, 2nd edition (London: Cartermill International Ltd, 1996); Directory of Interest Groups (Luxembourg: Office for Official Publications of the European Communities, 1996); and the EU Commission’s online Transparency Registrar: http://europa.eu/transparency-register/index_en.htm.

Yet focusing on formal organizations only reveals one part of the transnational legal mobilization dynamic that was occurring during the 1970s. Informal organizing and individual activism from within EU organizations would prove equally if not more powerful in the area of gender equality. One example of informal organizing of feminist activists is the Women’s Organization for Equality (WOE), which formed in 1971. ^{Footnote 23} The group originally formed as a consciousness-raising group, an increasingly common manifestation of the feminist movement at this time, ^{Footnote 24} and consisted of English-speaking women of various nationalities who happened to be living in Brussels during this time period. By the end of the 1970s, the group had a membership of one hundred and regularly published a newsletter. This was critical for disseminating information on ECJ case law and EU legislative developments.

At the same time, women working in other Directorate Generals of the Commission were beginning to carve out a European space, beyond legislative developments, for the concerns and issues facing women throughout the member states. The work of Fausta Deshormes in DG Information and Communication is an example. Following the 1975 International Women’s Year, the Commission began receiving a growing number of requests from national women’s groups and the women’s press. In response, Deshormes was asked to set up the Women’s Information Service. Her efforts led to the creation of a community-wide newsletter, Women of Europe, which proved critical for the development of transnational legal activism and networking for gender equality.

In the 1970s, the newsletter was the main avenue through which the ECJ judgments achieved widespread dissemination among women’s organizations in the member states, fueling subsequent legal mobilization. ^{Footnote 25} Deshormes’s commitment, as realized in the activities of the Women’s Information Service, was integral both in developing a space for the discussion of women’s issues at the EU level, and more importantly, in constructing the transnational links between national activists. Once created, these transnational links would eventually evolve into permanent coordination at the EU level that would lobby for and achieve EU policy change.

Litigation, Legislation and Mobilization

Litigation in the area of social provisions skyrocketed in the 1980s. In 1983 alone, the Court received a quantity of social provisions preliminary references that exceeded the total amount for the entire period since it received its first reference in 1970. The mobilizing effect of the Court’s second Defrenne decision is clear. The direct effect of Article 157 (TFEU) gave women throughout member states the ability to bring claims under EU equality law against discriminatory national practices before their own national courts, an action that was not possible prior to this ruling. As we saw in the previous section, activists helped ensure widespread knowledge of this litigation through their contributions to publications such as Women of Europe.

The subsequent case law that came from these diverse claims enabled the ECJ to clarify the rights of women under EU law. Again, the ECJ’s Defrenne rulings created the political opportunity for further action, yet individuals and legal activists created the subsequent opportunity for the ECJ to further expand and elaborate these rights. The decisions expanded EU law in substantive scope and included further procedural innovations granting the individual protection against the state. Cases from this decade include: the expansion of EU equality law to include pensions ^{Footnote 26} and working conditions, ^{Footnote 27} to protect claimants from indirect discrimination, ^{Footnote 28} and to allow equal pay claims using a hypothetical male comparator; ^{Footnote 29} the Court’s case law demanding that national legal systems make the necessary changes to provide “real and effective judicial protection” for claimants; ^{Footnote 30} a shift in the burden of proof; ^{Footnote 31} and, finally, a widely criticized ruling that refused to extend EU equality law to men in relation to maternity benefits. ^{Footnote 32} EU equality rights were clarified, and more importantly, women were given significant new legal instruments to demand effective remedies against discrimination. Developments in women’s transnational activism were linked both to the national-level proceedings that gave rise to these ECJ decisions, as well as to the subsequent mobilizing effects of these rulings. Litigation continued to be a successful tactic for individuals who wanted to pressure for greater equality rights.

Unlike this trend in equality litigation, EU legislative advancements on women’s issues were “ghettoized” in the early 1980s. ^{Footnote 33} That is, there was little proof of a general concern within the Council of Ministers or the Commission (beyond the Women’s Bureau) to further legislate at the EU level on women’s issues. Generally, as the 1992 Programme and the Single European Act (SEA) were proposed and negotiated in the 1980s, little if any attention was given to the issue of women’s rights. ^{Footnote 34} Further, social policy in general was clearly a back-burner issue around these initial negotiations. ^{Footnote 35} The SEA (1986) was a first step toward amendments to facilitate the necessary expansion for 1992, yet expansion in the area of social policy was minimal, and the most notable social provision was the introduction of “social partners” that developed EU-level dialogue between management and workers. This series of meetings, which became known as the Social Dialogue, clearly represents a formal access point for social interests in EU politics. However, during this time period, this political opportunity provided access to a process that did not want to move forward on social issues, thus minimizing the potential impact.

Mobilization, Institutionalization, and Public Inclusion

In terms of total growth of transnational mobilization, the 1980s paralleled the previous decades with twelve new groups developing permanent offices in Brussels. Table 2 displays the transnational organizations involved in EU social provisions that were founded between 1980 and 1989. However, politically, these organizations were very different from those of previous decades. In the early 1980s, grassroots women’s organizations such as the Centre for Research on European Women (CREW) and the European Network of Women (ENOW) became part of the political landscape in Brussels. These were women working for women whose political objectives and claims moved far beyond formal equality, but they began forging the path for substantive equality measures: positive action programs that included vocational training and education opportunities for women. Further, these groups illustrated that women’s mobilizing was becoming more formalized in collective organizations.

Table 2

Transnational organizations in the area of EU social provisions and gender equality by organizational type and founding date, 1980–1989

Source:

Data compiled by author from Alan Butt Philip and Oliver Gray, eds., Directory of Pressure Groups in the EU, 2nd edition (London: Cartermill International Ltd, 1996); Directory of Interest Groups (Luxembourg: Office for Official Publications of the European Communities, 1996); and the EU Commission’s online Transparency Registrar: http://europa.eu/transparency-register/index_en.htm.

Following the adoption of the SEA in 1986 and the extension of EU social policy competences, there was another growth spurt with four groups forming in a two-year time period. The links between the ECJ’s equality case law, EU legislative developments, and this transnational activism were becoming clearer. CREW exemplified this dynamic, as the organization provided the physical space for women to seek out information about their rights and also served as a network to exchange information and collaboration across national organizations. The CREW Reports, a monthly publication that appeared between 1985 and 1995, “provided a source of information and a focus for networking among feminist and grassroots women’s organizations.” ^{Footnote 36} These reports were vital for current information on ECJ case law and national legal action on gender equality. ^{Footnote 37}

The effect of the CREW Reports was a transnational dissemination of information that ensured a wide audience for the real effects of the ECJ rulings and suggested how these new rulings and EU equality laws could be used for future legal action. For example, the adverse publicity that followed the ECJ’s 1984 Hoffman ruling, in which the Court refused to extend the Equal Treatment Directive to the position of fathers in German national maternity programs, was widely publicized and discussed in the Report and helped to mobilize women both at the national level and at the EU level to pressure for a parental leave directive. ^{Footnote 38} The transnational exchange of information facilitated by groups like CREW would again prove decisive for publicizing ECJ rulings, which impacted further mobilization. In this case, the negative ruling did not empower women per se but instead mobilized them to act for fear that EU equality rights were moving in a less progressive direction.

Another example of transnational legal mobilization in this time period was the development of DG Employment’s Legal Experts Network On the Application of the Equality Directives. This network of national experts, drawn from the legal profession, academia, and trade unions, provided in-depth national updates on the implementation of EU equality laws, detailed national legal and legislative developments in equality policy, and provided suggestions on new directions for EU policy. The publications from this group would prove essential in providing a transnational exchange of information on ECJ decisions, subsequent national court decisions, and ultimately, national legislative change and compliance. In particular, the regular reports of the Experts Network pointed to the comparative advantages and disadvantages facing potential claimants who hoped to utilize Article 267 preliminary ruling procedure to bring claims before national courts. ^{Footnote 39} Alongside these regular updates, experts affiliated with the Network have prepared in-depth special reports for the Commission that include subjects such as the analysis of legal redress in member states for equality claims and the use of litigation strategy in national legal systems. ^{Footnote 40} In this case, the Commission created the opportunity for transnational coordination, but when given the space, these legal activists have facilitated the subsequent expansion of EU law through legal proceedings before national courts.

The ECJ rulings would remain an important thread in the development of transnational networks of legal activists. By the end of the 1980s, the presence of a public interest on behalf of women had become a coordinated and organized part of the European landscape. Not only was this mobilization a continuation of individual action by women pushing for formal equality from within EU organizations and within trade union as seen in the 1970s, this mobilization had become more collective. Permanent offices and networks dedicated solely to the promotion of more progressive EU women’s policy were established in Brussels, and they continued to connect to national-level legal mobilization and action.

Litigation, Legislation and Mobilization

During the 1990s alone, the ECJ had already received four times as many social provisions preliminary references as they had in the previous decade. Increasingly, EU law served as a political opportunity structure for women throughout Europe, who were now enabled to seek protection from discriminatory national practices. Likewise, national judges who were often exerting newly realized powers of statutory review were increasingly engaging the EU legal system by sending preliminary references. Further, the diversity of claims continued to expand as information regarding the opportunities afforded through EU law spread through transnational networks to legal experts, trade unions, and women activists at the national level. As a result of this subsequent litigation, the ECJ was asked to give EU equality laws greater applicability and clarity. If the 1970s litigation established general formal equality rights and the 1980s represented clarification and elaboration of these rights, the case law of the 1990s and early 2000s saw an unparalleled expansion of situations in which these general equality rights were applicable, from protection of pregnant workers to discrimination against transsexuals.

The case law in this time period served as political opportunity for legal mobilization by eliciting effects in terms of both legislative action by EU organizations and also political and legal action by women activists. One example is the 1990 Barber decision, ^{Footnote 41} which created the direct effect of Article 157 (TFEU) in occupational pensions. The potential costs associated with the ruling and an extension in individual rights resulted in a member state attempt to narrow the scope of the ruling (a treaty amendment, the Barber Protocol); at the same time, individuals continued to flood national courts with claims based on this newly created right, and ultimately, amendments to EU-level legislation was proposed. ^{Footnote 42} The Court’s Kalanke decision ^{Footnote 43} on positive action would result in a similar effect, except that the highly criticized ruling would limit rather than expand EU rights, illustrating that both “good” and “bad” decisions can result in mobilization. This time period also included the Court’s pregnancy and maternity case law beginning with the Dekker decision, ^{Footnote 44} which developed in tandem with EU legislative action in this area. ^{Footnote 45} The issue of pregnancy and maternity rights, however, was not completely resolved with this new piece of legislation, but instead served as a stepping stone along with the Equal Treatment Directive for further legal mobilization in maternity and pregnancy cases involving pension rights, ^{Footnote 46} pay raises, ^{Footnote 47} annual leave, ^{Footnote 48} and most recently, expansion of the Court’s jurisprudence to protect workers from unequal treatment when undergoing in vitro fertilization. ^{Footnote 49}

Further, the case law in this time period delved into issues of sexual orientation and discrimination and included the Court’s Grant decision, ^{Footnote 50} involving same-sex partners, and the P vs. S decision, ^{Footnote 51} extending equal treatment protection to transsexuals. Member-state sovereignty over military organization was also impacted with a series of important cases, including the Sirdar decision ^{Footnote 52} and the Kreil decision, ^{Footnote 53} on discrimination and women in military posts. Similar to the general trend in the previous decade, this case law was both cause and effect of the transnational mobilization that was increasingly present and institutionalized at the EU level. Building on the momentum generated for the 1992 project (completion of the internal market) early in the decade, the 1990s alone experienced record growth in terms of annual social provisions legislative outputs: on average, eighteen EU legislative acts were adopted each year during the 1990s, whereas the average for the previous decade was ten. Further, the treaty developments over this period, including Maastricht (1992), Amsterdam (1999), and Lisbon (2007), also strengthened equality rights in EU law.

These legal instruments created opportunities for greater inclusion of gender equality in EU law. The Treaty of Amsterdam (1999) made equality between men and women a key duty of the EU (Article 2) and the elimination of discrimination on grounds of sex in all activities of the EU a key aim of community legislators (Article 3). Further, the EU gained competence to combat discrimination based on sex, racial or ethnic origin, religion or belief, disability, and age or sexual orientation (Article 13). The time period was also marked by a series of EU legislative innovations and updates that expanded the rights and protections available to women. ^{Footnote 54} These legal innovations included the institutionalization of the objective of “gender mainstreaming,” a policy action promoting the idea of “integrating equality into general mainstream policy.” ^{Footnote 55} This requirement provided a new European social space to begin discussing the diversity of women’s rights. Women activists mobilizing in Brussels utilized the idea of gender mainstreaming to bring attention to and greater awareness of gender in a wide scope of EU policy areas. ^{Footnote 56} Finally, the Lisbon Treaty (2007) was important to gender equality in that it made the Charter of Fundamental Rights of the EU a binding set of rights—this clearly provided an avenue for greater legal mobilization drawing civil society, member states, and the ECJ into a tighter web of legal obligation.

These treaty innovations not only created new opportunities by expanding EU gender equality laws, they also provided greater space for public inclusion of women’s rights issues through the strengthened role of the European Parliament (EP) in policy processes. This enhanced role of the EP, in particular its Women’s Committee, continued to be very supportive of both NGO activities and the promotion of women’s issues through conferences and studies during this time period. Thus, a strengthening of the policy making power of the Parliament vis-à-vis other EU organizations represented greater political opportunity and space for the policy objectives of women’s public interests. The EP proved to be a critical player in seeing the final realization and establishment of the European Institute for Gender Equality in May 2007—a European-level organization that serves as the hub for data collection and dissemination on issues of gender equality in the community.

Mobilization, Institutionalization, and Public Inclusion

Building on this momentum and that of the political events of the 1992 project, the EU experienced an unprecedented growth in transnational mobilization in the 1990s and into the next decade. Table 3 illustrates that seven new organizations were founded in the year 1990 alone, and a total of seventeen were established between 1990 and 2003. Further, building on the policy objectives and activities of previous EU women’s groups, this decade marked the establishment of a formal grassroots women’s lobby in Brussels. The European Women’s Lobby (EWL), established in 1990, is an umbrella organization representing over 2,500 grassroots women’s organizations. It is a regular participant in EU policy arenas and lobbies on a range of women’s issues, from domestic violence to trafficking in women. Similar to a trend in the previous decade, the organizations forming in this time period were more likely to represent an expansion in the voluntary organization sector than trade unions. As illustrated in Table 3, eleven out of the seventeen groups founded in this decade were voluntary organizations. Although women’s issues were not necessarily their only policy aim, these organizations continued to place a high priority on the promotion of women’s rights at the EU level.

Table 3

Transnational organizations in the area of EU social provisions and gender equality by organizational type and founding date, 1990–2010

Source:

Data compiled by author from Alan Butt Philip and Oliver Gray, eds., Directory of Pressure Groups in the EU, 2nd edition (London: Cartermill International Ltd, 1996); Directory of Interest Groups (Luxembourg: Office for Official Publications of the European Communities, 1996); and the EU Commission’s online Transparency Registrar: http://europa.eu/transparency-register/index_en.htm.

As we can see, mobilization efforts were increasingly being carried out by highly organized peak organizations rather than through the individual activism characterizing the 1970s. The EWL is an example of this type of mobilization. As mentioned, this is an umbrella organization representing over 2,500 women’s organizations throughout the member states. ^{Footnote 57} After over a decade of debate, this European-level women’s lobby was finally formed in 1990 as a platform for representing women’s interests in EU politics. Speaking on behalf of the EWL, Jacqueline de Groote emphasized the need for women’s greater participation:

This statement illustrates that the EWL saw their lobbying efforts as essential to creating a space and opportunity for women’s issues in EU politics. This continued on into the 2000s, when the EWL played an aggressive role, pressuring for a strong basis for gender equality in the new European Constitution.

The EWL would come to be the main formal organization representing women’s interests in EU policy making, an outcome that was driven by the organization’s constant attempt to represent diverse interests and the Commission’s influence by discouraging women’s groups from operating autonomously from the EWL. ^{Footnote 59} Thus, while this transnational mobilization helped to shape political opportunities, the Commission clearly maintained control over which groups subsequently utilized these formal access points.

As in the previous decade, ECJ decisions continued to be an important part of an expanding net of EU equality laws enabling women to bring claims against their own governments and to seek newly found protection from discriminatory behavior. Transnational legal activists—operating through the Network of Legal Experts, CREW, and even consultancy firms such as ENGENDER ^{Footnote 60} —were an important element in ensuring widespread knowledge of the ECJ decisions that were essential for subsequent legal action and mobilization. Legal action via the ECJ developed alongside transnational lobbying efforts, and rather than directly impacting this activism, it was seen as a parallel effort to expand the rights of women at the EU level. In 1996, this would change.

Following the Court’s Kalanke decision, ^{Footnote 61} the ECJ would take on a new role in women’s organizations operating in Brussels. The ruling stated that the Equal Treatment Directive must be interpreted strictly in terms of allowable positive action programs: the decision in effect condemned a German law providing that, where job candidates are equally qualified for a particular position, women be given priority if they are underrepresented in that particular profession. From the perspective of women’s groups, the ECJ was no longer the reliable ally paralleling their effort in expanding European equality politics. The ruling instigated a flood of criticism from a wide spectrum of women activists: academics, lawyers, and women’s organizations alike. ^{Footnote 62} The EWL was quick to mobilize in opposition to the decision, and as a result of their pressure, the Commission subsequently issued a communication offering an interpretation of the ruling. ^{Footnote 63} The Commission’s communication stated that all positive action programs must not be viewed as inconsistent with EU law, despite the ruling, and suggested a list of compatible programs. The Commission’s action would shape subsequent rulings. A year later, the ECJ would adopt this new Commission-endorsed position in the Marschall decision, ^{Footnote 64} a decision that ultimately narrowed the potential scope of the Kalanke ruling.

This adverse ruling had a direct impact on mobilizing transnational activists, whose subsequent pressure helped to reverse the effect of the decision and ultimately preserve a space for women both in national and European politics. The positive action programs that were the focus of the ruling are one avenue to help create a space for women, and these groups acted quickly to preserve their previous attempts to make positive action a priority in EU politics.