Gender equality and social policy after Defrenne
Abstract
In holding (albeit prospectively) that gender equality in the workplace was a general principle of Community law, whose purport went beyond the sole issue of equal wages expressly governed by Article 119 of the Treaty of Rome (now 141 EC), the landmark Defrenne judgment placed non-discrimination at the heart of the European social model, gave it direct horizontal effect at a time when such a step was considered by Sir Otto Kahn-Freund himself as ‘unlikely’, and set the scene for the development of Community labour law in terms of ‘fundamental personal rights’. An initially modest provision designed to avoid social dumping, Article 119 was thus raised by the Court to the constitutional status which the Treaty of Amsterdam would later endorse and expand. Thirty years on, such a move retains its significance for at least two reasons. First, while social policy has proved in the long run to be the ‘sick man of public policy’ in Europe, anti-discrimination has remained the focus of judicial and, in its wake, legislative activism, surviving the contemporary neo-liberal policy shift towards the ascendancy of employment over social concerns. (First paragraph)