The Europeanization of gender equality – who controls the scope of non-discrimination?

Abstract

The paper examines the extent to which member states control the impact of European Union (EU) policies. It does so through an historical study of what is considered to be the ‘least likely case’ – the Europeanization of Danish gender equality. The analytical findings identify various and diverse effects of European integration over time on national policy, politics and law. Historically, the EU has had a major role in furthering and putting into effect equality rights – even in the ‘least likely’ case of Denmark. From a theoretical perspective, the paper argues that the study of Europeanization could learn from the insights of implementation theory. Empirically, the analysis demonstrates that the process of implementation involves a complex series of ‘decision points’ that extend beyond the control of national governments. These ‘decision points’ may veto, extend or enforce the impact of European policy. Furthermore, states do not act with a single purpose, but are comprised of a variety of, often competing, actors and interest groups.

Keywords:

• Control
• decision points
• Europeanization
• gender equality
• impact
• implementation.

ACKNOWLEDGEMENTS

I would like to thank the three anonymous reviewers of the paper as well as Agnete Andersen, Jens Blom-Hansen, Hanne Foss Hansen, Simon Hix, Mads Christian Dagnis Jensen, Torben Beck Jørgensen, Morten Kelstrup, Martin Marcussen, Ellen Mastenbroeck, Lene Holm Pedersen, Marlene Wind and Kutsal Yesilkagit for constructive comments and criticism.

Notes

1. The present study defines control as a process of regulating policy outputs in which one party affects the behaviour of others in order to steer the specific output or outcome. The definition draws in part on Das and Teng (1998: 493) and on the work of Meyers and Vorsanger (2003).

2. Derived from the distinction drawn by Bözel and Risse (2003: 60), policies are comprised of national legislation, their organizing principles and the administrative practices implemented to carry them out. Politics encapsulate the formation of national interests, together with their aggregation and articulation. Changes in national polities will not be examined here.

3. The study does not examine the part of implementation involving the behaviour of street-level bureaucrats, target group behaviour or, finally, outcomes (Winter 2003). Policy outputs are understood as results on national policies, whereas policy outcome would be their ultimate practical and societal effect. In a gender equality outcome study, the focus would be on how, and the extent to which, wage equality and discrimination had been effectuated in practice.

4. For the strategic-theoretical purposes of choosing a ‘least likely’ case, Eckstein (1975) pointed out that the ‘least likely’ case serves for theoretical testing and development, since it may confirm the theory against odds. The propositions of the theory will then also appear stronger and more likely to hold in other cases. The strategic-theoretical purpose of the present analysis is that if the Europeanization of gender equality has taken place in the critical case of Denmark, then Europeanization may have had a similar or even greater impact on other member states.

5. On this point, see, for example, comments made by MPs during the parliamentary debate on the law on equal pay in the Danish parliament, as quoted in the ‘Official Report of Parliamentary Proceeding’, ‘Folketingstidende’, 1977–78, sp. 7874 ff.

6. For the three legitimacy dimensions of which output legitimacy is part of the political system's ability to perform, see Beetham and Lord (1998).

7. The Defrenne cases concerned the discrimination practices of Sabena, the Belgian national airline. Male and female flight attendants had exactly the same job responsibilities, but the male attendants earned more. Furthermore, the female flight attendants were obliged to retire at age 40, whereas males could continue working another 15 years, then be entitled to Sabena's special pension scheme.

8. Case 43/75, Defrenne, 8 April 1976.

9. Council Directive 75/117/EEC of 10 February 1975.

10. Council Directive 76/207/EEC of 9 February 1976.

11. Council Directive 79/7/EEC of 19 December 1978.

12. Council Directive 86/378/EEC of 24 July 1986.

13. Council Directive 86/613/EEC of 11 December 1986.

14. See, for example, case 129/79, Smith, 27 March 1980; case 96/80, J.P. Jenkins, 31 March 1981; case 109/88, Handels- og Kontorfunktionærernes Forbund i Danmark, 17 October 1989, which will be discussed further below.

15. Case 177/88, Dekker, 8 November 1990.

16. Council Directive 92/85/EEC of 19 October 1992.

17. Council Directive 93/104/EC of 23 November 1993.

18. Council Directive 96/34/EC of 3 June 1996.

19. Council Directive 97/80/EC of 15 December 1997.

20. Council Directive 97/81/EC of 15 December 1997.

21. Law no. 32, 4 February 1976, on equal pay for men and women.

22. For the negotiations in the Danish parliament on the legislation regarding equal pay, see ‘Official Report of Parliamentary Proceeding’, 1975–76, sp. 1674 ff., sp. 2401 ff.; sp. 5032 ff.; and sp. 5121ff.

23. Case 143/83, Commission of the European Communities v. Kingdom of Denmark, 30 January 1985.

24. Law no. 65, 19 February 1986.

25. Case 109/88, Handels- og Kontorfunktionærernes Forbund i Danmark, 17 October 1989.

26. In the later Danish case regarding equal pay, Royal Copenhagen (case C-400, Specialarbejderforbundet i Danmark, 31 May 1995), the European Court of Justice found that the observed difference in pay could be due to different individual outputs, and thus not based on direct or indirect sex discrimination.

27. Law no. 374, 20 May 1992.

28. See, for example, case C-127/92, Enderby, 27 October 1993.

29. These amendments of national laws were adopted on 29 May 2001 by proposal L 78.

30. Law no. 161, 12 April 1978.

31. See comments made by the former President of the Danish Women's Society (Dansk Kvindesamfund), Grete Fenger Møller, in the parliamentary debate on the law on equal treatment; ‘Official Report of Parliamentary Proceeding’ 1977–78, sp. 5330.

32. Law no. 117, 28 March 1984.

33. Case 179/88, Handels- og Kontorfunktionærernes Forbund i Danmark, 8 November 1990.

34. Case C-400/95, Larsson, 29 May 1997.

35. Case C-66/96, Pedersen, 19 November 1998.

36. Case C-109/00, Tele Danmark, 4 October 2001.

37. Law no. 340, 2 June 1999.

38. See Faglige Voldgiftskendelser: 23.4.1999 CO-industri for SID against DI for MoreGroup Danmark A/S; 10.2.2000 CO-industri for KAD against DI for Viking Life Saving Equipment A7S.