Abstract
It is undisputed that the concept of equality is of great importance to European law-making. The references to this concept range from Article 2 TFEU and a whole chapter in the Charter of Fundamental Rights of the European Union, to directives dedicated to anti-discrimination, and to the prohibition of discrimination on grounds of nationality. Yet, as Johanna Croon-Gestefeld, Postdoctoral Fellow in European and International Private Law at Bucerius Law School, Hamburg, points out in the Introduction (page 2), European equality law is ‘commonly criticised for its incoherence and perceived unpredictability’. Other pitfalls attributed to EU equality law are difficulties in comprehension due to its diversification or its functioning. This book aims to provide its readers with a clearer picture of how ‘the general principle of equality functions in EU law’ (page 3). Thus, as Neil Komesar and Miguel Maduro state in their foreword, this monograph, which is an extended version of Johanna Croon-Gestefeld’s PhD Thesis at EUI, should be of interest to academics and practitioners alike.
Johanna Croon-Gestefeld sets out to assess the CJEU’s as well as national courts’ case law not only within the classic interpretive framework, but also from the perspective of comparative institutional choice. In this way, she reconciles the different strands of case law by the European Court of Justice. By doing so, she puts forward new points of view on EU equality law: the comparative institutional analysis allows the author to present EU equality law as a field of law where in which the balancing of competing interests is performed by different actors (courts and legislators in particular) at different levels (EU and Member State level) (page 7). By adopting this approach, she aims to explain why a specific case was decided in a certain manner. For practitioners, in particular, this approach could prove helpful when trying to evaluate the potential outcome of a pending lawsuit. In her analysis, Johanna Croon-Gestefeld focuses on the vertical dimension of the principle of equality, in that its application between private parties lies beyond the scope of her monograph.
The book is structured as follows. After an introduction and a chapter on ‘The Notion of Equality’, chapter three sets out to challenge traditional approaches to interpreting EU equality law. Johanna Croon-Gestefeld suggests that the, prima facie, inconsistent interpretation of the concept of equality by the Court of Justice is in fact more coherent than might be recognised at first sight. Following a depiction of the three different levels of intensity that the Court applies when testing equality cases, as well as a depiction of the German Federal Constitutional Court’s tripartite technique in equality review, the author presents an alternative to the traditional interpretive account of the CJEU’s working based on comparative institutional analysis. Her conclusion is that institutional considerations should be addressed more openly when assessing questions of equality in EU law. Johanna Croon-Gestefeld’s aim is to deconstruct the CJEU’s case law and to explain the notion of equality in a more coherent way by performing a comparative institutional analysis in three different fields: Differential Treatment of EU Citizens (chapter four), Reverse Discrimination (chapter five) and Affirmative Action for Women (chapter six).
From a social security law perspective, it is obvious that chapter four, which deals with, among other things, the (in)famous Dano, Alimanovic and García-Nieto cases, is of particular interest. At the meta-level, the general principle of equality furthers the wish among EU citizens to be included in the broader integration project. Thus, to some extent equality law ‘furthers the general feeling to be able to relate to each other’ (page 3). The CJEU’s case law on social benefits for economically inactive migrating EU-citizens seems to threaten this function of equality law, though. This can be explained using the comparative institutional approach, complemented by considerations of the political circumstances 1 (see the author’s reference to Weiler at page 6 et seq.). It does not seem to be mere coincidence that the last judgment on that topic, Commission vs UK (C-308/14), was issued on 14 June 2016, nine days before the ‘Brexit-referendum’ in the UK. 2
In Brey (C-140/12), the Court had held that host Member States had to grant special non-contributory cash benefits under Regulation 883/2004 to migrating pensioners as long as they did not – according to a decision on an individual basis – overburden their national social assistance systems. A dangerous mixture of inconsistencies in secondary EU-law and the political gambling with people’s feelings on so-called ‘benefit-tourism’ led to a situation where, in some Member States and especially in the UK, the granting of social benefits to migrating EU-citizens was challenged. In Commission vs UK, the Court then held that not only the granting of special non-contributory cash benefits, but also the granting of core-benefits under Reg. 883/2004 could be made dependent on the migrating citizen’s lawful residence. Equality between EU-citizens, based on Article 18 TFEU, and as argued by the Court in cases such as Martínez-Sala (involving core social security benefits) or Grzelczyk and Trojani (involving social assistance), does not seem to be capable of achieving political consensus anymore, at least not in the field of granting social benefits (including core-benefits under Reg. 883/2004) to economically inactive citizens. The Court’s decision in Commission vs UK was probably influenced by the upcoming Brexit-referendum. It seems quite logical that, in allowing Member States to deny even core benefits to economically inactive Union citizens, the CJEU had hoped to moderate one of the main fears evoked by Brexiteers, namely the abuse of the social system by migrating EU-citizens. 3 As Verschueren points out, 4 we know now that these hopes were in vain. Yet, this example shows that equality law ‘in practice’ is not as detached from its economic origins as one might be attempted to believe when reading about equality as the founding value of the Union (Article 2 TEU) or equality as a fundamental right (Articles 20-26 CFR).
The economic foundation of EU-equality law is also made perfectly clear by Johanna Croon-Gestefeld when she states that ‘(e)qual treatment of nationals and non-nationals coming from other Member States acted as a tool to bring about economic harmonisation’ (page 4; on the interlinkage, see also the discussion on pages 12 and 86 et seq.). This culminates in the questions of ‘how far the obligation to equal treatment actually extends in a supranational setting’ and ‘who should decide on the ‘right’ notion of equality in European law’ (page 12). Although these questions are not (and admittedly cannot be) answered by this monograph, Johanna Croon-Gestefeld’s comparative institutional choice perspective does achieve a better explanation of the functioning of the general principle of equality. The Commission vs UK-case and the denial of social security benefits to migrating non-active Union citizens is a prime example. Yet, one should not lose sight of the fact that despite these, to a certain extent perfectly understandable, rationales of the Court, its reasoning in Commission vs UK is deemed to be contrary to the wording of Article 4 Reg. 883/2004, leading us to the question whether this is in line with the democratic basis and the checks and balances-system the Union is based on. 5
Taking into account the Court’s recent judgment in Chavez-Vilchez, 6 the chapter on reverse discrimination might also catch the attention of an astute social security lawyer. Following this judgment, third-country nationals are, under certain circumstances, entitled to social benefits, which, after the Dano, Alimanovic, García Nieto and Commission vs UK-cases, migrating EU citizens can no longer claim. This could be regarded as some sort of reverse discrimination: migrating EU citizens will be treated less favourably than third country nationals. In line with its earlier adjudication, the Court held in Chavez-Vilchez that a third country national has a derived right of residence under Article 20 TFEU if an EU citizen (the third-country national’s child) would otherwise be forced to leave the EU territory for good (para 63 et seq). However, what is most striking is that, as a result of the Chavez-Vilchez case, those third-country nationals with derived residence rights are legal residents under EU-law and are therefore entitled to all social benefits that depend on legal residency, even if they are economically inactive. This situation is illustrated by a recent judgment of the Austrian Supreme Court of Justice 7 according to which a third country national in a situation comparable to Chavez-Vilchez is entitled to child benefits (which were core social benefits under Reg. 883/2004). It would be extremely interesting to know what conclusion Johanna Croon-Gestefeld would come when analysing the Chavez-Vilchez-case from a comparative-institutional point of view and comparing it to the Dano, Alimanovic and García-Nieto cases (it should be noted that work on the monograph was finished before the judgments in Commission vs UK and Chavez-Vilchez were issued).
Reconceptualising EU equality law is a great challenge. Johanna Croon-Gestefeld approaches it from an angle that, in practice, is often veiled and not fully understood by the public. By trying to make sense of the CJEU’s equality-adjudication and analysing it from a comparative-institutional point of view, she contributes to a better understanding of EU equality law. One of the strengths of this book is that she provides concrete tools and techniques for judges to carry out such a comparative institutional analysis (see, in particular, Chapter 7). This book can therefore be warmly recommended as a very worthwhile read.