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Equality without borders? The protection of individuals against EU equality law

Final Report Summary - EQWIBO (Equality without borders? The protection of individuals against EU equality law)


The first new target for the Europe 2020 Strategy is an employment rate of 75%. This can only be achieved if there is an increased labour market participation of women, young and older workers, disabled people and legal migrants. This ambitious political objective must be read in conjunction with a very powerful legal instrument: EU equality law, which prohibits discrimination on the labour market on grounds such as gender, race, age and disability. EU equality law can be a useful tool to increase the competitiveness of European labour markets while reducing personal inequalities. EU equality law has also developed very rapidly since 2000.

Is EU equality law not actually developing too quickly? The prohibition to discriminate prevents decision-makers from freely making strategic choices: for example the prohibition of age discrimination may prevent employers from having a recruitment policy focused on "young" workers. Equality law thereby limits individual (economic) freedoms. These effects of EU Equality law have not been sufficiently explored and considered by policy makers.

This Marie Curie project contributed to filling this gap. It explored the potential negative effects of the rapid expansion of EU equality law. The researcher explored two sets of questions:

i) Dr. Muir examined the constitutional aspects of EU law intervention in individual freedoms: Who are the key institutional actors in this process (1)? How do the founding constitutional principles of EU law justify this process (2)? What are the mechanisms empowering or limiting the use of EU equality law in disputes between private parties (3)?

ii) Dr. Muir reflected on the specificities of EU equality law that may explain the limitations on, as well as the potential for greater EU law intervention, in individual freedoms: Does EU equality law have any specific characteristics (when compared to other disciplines of EU law) that explain why its impact on individual freedoms is particularly noticeable (4)? How have the European legislator and judiciary shaped the legal concepts marking the boundaries between EU requirements, domestic competences and individual freedoms (5)? Are all individuals equally protected by EU law against discrimination (6)?

In order to achieve her research objectives, Dr. Muir first mapped out the central constitutional and substantive challenges triggered by the recent and rapid growth of EU equality law in an updated version of her PhD which was published as a monograph. She then explored more specifically each of the six research questions identified supra. In order to better address these six research questions, Dr. Muir has initiated and co-organized six corresponding academic events (such as workshops and conferences) designed to trigger interest from members of academia as well as practitioners and members of the civil society, to better conceptualize and contextualize her research as well as to receive feedback on her views before publication. These events have led to five journal special issues and one edited book. In addition to the monograph already mentioned and numerous publications exploring diverse aspects of her research agenda, Dr. Muir has written six articles (or book chapters) devoted to presenting her main findings on each of the six research questions identified supra.

In essence, Dr. Muir argues that the main reasons behind the recent criticisms directed against the impact of EU law on individual freedoms relate to the process through which such an impact has been enhanced. The European Court of Justice has played a central role in furthering the effects of EU equality law in disputes between private parties, without providing clear explanations for its approach; thus leaving observers in a state of uncertainty. According to Dr. Muir, such explanations may be found in the dynamics inherent to EU equality law. Although EU equality law was initially designed to constrain public authorities in the context of the creation of a new legal order (the European Communities), it has progressively gained a second prominent function as a policy intended to impact on a vast array of societal (and private) practices - thus performing a transformative function. The assertion of the transformative function of EU equality law has developed along with the furthering of the process of European integration; as a result, EU equality law may be seen as the spearhead of EU fundamental right policy and is treated as such by the European Court of Justice.

The details of Dr. Muir’s main findings may be found in the following publications:

Monograph

E. Muir, EU Regulation of Access to Labour Markets – A Case Study of EU Constraints on Member States Competences, Kluwer European Monographs, 2012) 306 p.

Articles in Edited Books and Journal Special Issues (listed in the order corresponding to the research questions identified supra)

(1) ‘The Court of Justice: A Fundamental Rights Institution Among Others’ (pp.76-101) in E. Muir, M. Dawson & B. De Witte (Eds), Judicial Activism at the European Court of Justice (Edward Elgar, 2013, 278 p.)
(2) ‘Fundamental Rights: An Unsettling EU Competence’ (15 p.) in E. Muir & C. Leconte (Eds), ‘Understanding Resistance towards an EU Fundamental Rights Policy’ (2013) 14/4 Special issue of the Human Rights Review (publication pending)
(3) ‘Enforcing the EU's Rights Revolution: The Case of Equality’ with M. Dawson & M. Claes, 2012) 3 European Human Rights Law Review pp. 276-291 and E. Muir & M. Dawson (Eds), ‘All for One and One for All – the Collective Enforcement of EU law’, agreement for the publication of a Special Issue with Legal Issues of Economic Integration (forthcoming in 2014)
(4) ‘The Transformative Function of EU Equality Law’ (pp.1231-1254) in G. Low & E. Muir (Eds), ‘The Privatization of European Law or the Constitutionalization of Private Law: Two Sides of the Same Coin’ (2013) 21/5 Special issue of the European Review of Private Law pp.1159-1281
(5) ‘Exceptions and Justifications to the Prohibition of Age Discrimination in EU Law’ in E. Muir, L. Waddington & A. Broderick (Eds), ‘(Il)Legitimate Differential Treatment’, agreement for the publication of a Special Issue with the International Journal of Discrimination and the Law (forthcoming in 2014)
(6) ‘Enhancing the Protection of Third-Country Nationals against Discrimination: Putting EU Anti-Discrimination Law to the Test’ (pp.136-156) in E. Muir & A.P. van der Mei (Eds.), ‘Revisiting the Principle of Equality: New Challenges for EU Law’ (2011) 18/1-2 Special double issue of the Maastricht Journal of European and Comparative Law pp.1-197

In addition to multiple academic publications Dr. Muir disseminated her findings in several ways. She organized conferences and workshops involving not only academics but also practitioners and members of the civil society as speakers, chairs or members of the audience. She has been very active in teaching students as well as providing training to professionals interested in EU social, fundamental rights and constitutional law (eg. at Maastricht Law Faculty, at the College of Europe or at Sciences-Po Lille). Furthermore, Dr. Muir has been involved in several events initiated by members of the civil society in the context of non-governmental organizations (or foundations) as well as political actors such as Members of the European Parliament.

For further information, Dr. Elise Muir may be contacted by e-mail at elise.muir@maastrichtuniversity.nl or at the following mailing address: Maastricht University, Faculty of Law, Bouillonstraat 1-3, 6200 MD, The Netherlands.