Equality between women and men or gender equality is one of the objectives of the European Union. It is an expression of social justice, as it leads to equal opportunities for growth and personal development. It is about the equality of women and men in legal terms and regarding their personal and professional development potential in society (equal opportunities). This enables freedom and self-determination in society, allowing both men and women to realize their individual life plans equally.
Gender equality as one of the 20 key principles of the European Pillar of Social Rights aims to ensure the following:
the right to equal pay for equal work or work of equal value;
equal treatment and equal opportunities for men and women in all areas, including the labor market, employment conditions and career advancement.
The goal of equal rights for men and women is also enshrined in Article 3 II of the Basic Law of the Federal Republic of Germany:
“Men and women shall have equal rights. The state shall promote the effective implementation of equal rights for women and men and shall work towards the elimination of existing disadvantages.”
While the concept of equal rights encompasses the level of rights, the concept of equality aims to politically implement the life situation of groups that in principle enjoy equal rights.
Equality between men and women in the labor market
The Court of Justice of the European Union (CJEU) has played an important role in promoting equality between men and women. There have been a number of important judgments in this context.
Defrenne II judgment of April 8, 1976 (Case 43/75): The ECJ recognized the direct applicability of the principle of equal pay for men and women and ruled that the principle applies not only to the area of public authorities, but also extends to all collective agreements collectively regulating paid employment.
Bilka judgment of May 13, 1986 (Case C-170/84): The ECJ ruled that a measure excluding part-time workers from occupational pension schemes constituted “indirect discrimination” in breach of the former Article 119 of the Treaty on the European Economic Community if it affected substantially more women than men, unless it could be shown that the exclusion was based on factors which were objectively justified and had nothing to do with discrimination on grounds of sex.
Barber judgment of May 17, 1990 (Case C-262/88): The ECJ ruled that all forms of occupational retirement pension are to be treated as equivalent to pay within the meaning of the former Article 119 and that the principle of equal treatment therefore applies to them. The ECJ derived from this the principle that male employees can assert their rights with regard to old-age and survivors’ pensions at the same age as their female colleagues.
Marschall judgment of November 11, 1997 (Case C-409/95): The ECJ declared that Community law does not preclude national legislation under which, in areas of activity in which women are less represented than men, priority must be given to female applicants (positive discrimination), provided that this advantage is not granted automatically, male applicants are guaranteed a review of their application and they are not excluded from applying in advance.
Test-Achats judgment of March 1, 2011 (Case C-236/09): The ECJ declared Article 5(2) of Council Directive 2004/113/EC invalid because it is contrary to the principle of equal treatment between women and men in the access to and supply of goods and services. The same actuarial principles must be applied to men and women when determining insurance contributions and benefits.
Korwin-Mikke judgment of May 31, 2018 (Cases T-770/16 and T-352/17): The ECJ ruled that the sanctions against the far-right Polish MP Janusz Korwin-Mikke must be lifted.
Violeta-Villar-Láiz judgment of May 8, 2019 (Case C-161/18): The ECJ found that Spanish legislation on the calculation of retirement pensions for part-time workers is in breach of EU law if it puts female workers at a particular disadvantage.
Praxair judgment of May 8, 2019 (Case C-486/18): The ECJ stated that the calculation of redundancy pay and the allowance for reintegration of staff working on a part-time basis during parental leave must be based on the pay for work performed on a full-time basis. Contradictory national legislation leads to indirect discrimination on grounds of sex.
Safeway judgment of October 7, 2019 (Case C-171/18): The ECJ ruled on the equalization of pension benefits under an occupational pension scheme.
Ortiz-Mesonero judgment of September 18, 2019 (Case C-366/18): A father was denied the right to work fixed shifts so that he could better care for his children. The ECJ ruled that the directives do not apply here and that they do not contain any provision that could oblige Member States, in the context of an application for parental leave, to comply with the applicant’s request to work fixed hours if the person normally works on a rotating shift model.
Hakelbracht judgment of June 20, 2019 (Case C-404/18): The ECJ ruled that if a person claims to be discriminated against on the basis of their sex and lodges a complaint, other employees who are not that person must be protected insofar as they may be disadvantaged by their employer because of the support they have formally or informally given to the person who has been discriminated against in this way.
Tesco Stores judgment of June 3, 2021 (Case C-624/19): In its judgment, the ECJ first referred to its judgment in the Praxair MRC case (C-486/18), according to which the prohibition of discriminatory unequal treatment of male and female employees also extends to collective agreements and contracts between private parties regulating pay. Furthermore, the ECJ referred to its other established case law, which enables courts to assess other gender-specific unequal treatment in relation to pay on the basis of the disputed provision. The ECJ concluded that Article 157 TFEU must be interpreted as having direct horizontal effect in disputes between private parties in which a breach of the principle of equal pay for men and women for “work of equal value” is alleged.
Opinion 1/19 of the Court of Justice of October 6, 2021 on the accession of the Union to the Council of Europe Convention on preventing and combating violence against women and domestic violence (Istanbul Convention): The CJEU’s opinion clarifies the modalities of the EU’s accession to the Istanbul Convention and its legal basis.
