A Constitution for Antidiscrimination: Exploring the Vanguard Moment of Community Law

Abstract

It is a commonplace that 'non-discrimination' is a fundamental principle of Community Law. If the principle is taken to express a broader commitment to equality, however, there appears to be something quite unusual about it. When compared with the standards set by modern constitutional law, the commitment to equality is, at least with respect to Member State action, less extensive; in the context of indirect gender discrimination, however, the principle acquires remarkable scope. Although this 'vanguard moment' of Community Law is tacitly acknowledged in the practice of the ECJ, it is, at the same time, subdued; the resources of the principle might be tapped, however, by moving toward a constitution for antidiscrimination. The article explores both the philosophical presuppositions and the institutional context of what could become a constitutionalisation of antidiscrimination at the level of Community Law.

Diversidad sexual y de género y discriminación. Tratamiento internacional

“…5 y ss. ;Somek, A., "A Constitution for antidiscrimination: exploring the vanguard moment of Community Law", European Law Journal, vol. 5, núm.…”

Disability Discrimination by Association: A Case of the Double Yes?

“…Yet others focus on the way the Court has adopted a formalist attitude which privileges the comparative and negative nature of the anti-discrimination principle and fails to grasp not only 'substantive equality' claims but also intersectional discrimination (Costello, 2003;Somek, 1999). These commentators argue for a more modulated and flexible framework capable of bringing out the diversities and specific interests which constitute a given dispute.…”

“…Some scholars suggest that in its anti-discrimination jurisprudence the ECJ still maintains a traditional view of the family with its separate gendered roles (McGlynn, 2007); others argue that the Court neutralizes gender differences and constructs an image of the human person subordinated to market needs (Rossilli, 2009;Villa, 2009). Yet others focus on the way the Court has adopted a formalist attitude which privileges the comparative and negative nature of the anti-discrimination principle and fails to grasp not only 'substantive equality' claims but also intersectional discrimination (Costello, 2003;Somek, 1999). These commentators argue for a more modulated and flexible framework capable of bringing out the diversities and specific interests which constitute a given dispute.…”

Transnational Legitimacy in a Globalising World: How the European Union Rescues its States

“…12 Wider and more ambitious still, many have advocated the EC as a site for a constitution of antidiscrimination (Somek 1999), capable of empowering structurally disadvantaged groups to challenge entrenched bias within national political cultures (Chalmers 2003: esp. 184-5).…”