Equality of Treatment: A Variable Concept
![handle is hein.journals/indlj24 and id is 43 raw text is: Equality of Treatment: A Variable Concept?
PHILIPPA WATSON*
1. INTRODUCTION
Equality of treatment is a general principle of Community law' which finds
specific expression in a number of EC Treaty provisions, notably Articles 6, 8,
40(3), 48 and 119: The principle of equality of treatment requires that identical
or comparable situations must not be treated differently2 and that different
situations must not be treated identically.3 Equality of treatment prohibits overt
(or direct) and covert (or indirect) discrimination which, although applying
objective criteria to the same situation, results in discriminatory treatment. In
addition, the proper application of the principle of equality of treatment requires
not merely that unlawful discrimination be avoided, but also that steps be taken
to remove differences in treatment when they arise.4
This paper analyses the applicability of the principle of equality of treatment
to two areas of EC law: pay, employment conditions and social security on the
one hand, and the free movement of persons on the other. In the latter, equality
of treatment between all Community citizens, regardlesss of nationality is
required; the former lays down that, in the matters of pay, employment and
social security covered by Community law, men and women must be treated
equally.
The paper divides into three parts. Parts 2 and 3 set out briefly the substantive
content of Community law on the principle of equal treatment, both in respect of
pay, employment conditions and social security and with regard to the free
movement of persons. Part 4 analyses the principle of equality of treatment as
applied in the two areas of law under discussion and Part 5 offers some
conclusions.
Barrister. The author is particularly grateful to Christopher Docksey and Peter Oliver for their
comments on this paper.
1 Case 139/77 Denkavit [1978] ECR 1317. See Sundberg Weitman, Discrimination on Grounds of
Nationality. Kluwer: Hepple and Szyszczak (eds) Discrimination: The Limits of the Law, London
1992, particularly Chapter 12; Ellis: European Community Sex Equality Law, Oxford 1991; Prechal
and Burrows; Gender Discrimination Law of the European Community, Dartmouth 1990; Fredman
European Discrimination Law: A Critique, (1992) 21 ILJ 119; Docksey: The Principle of Equality
between Women and Men as a Fundamental Right Under Community Law, (1991) 20 ILl 258;
Arnull: The General Principles of EEC Law and the Individual, London 1990.
2 Joined Cases 117/76 and 16/77 Ruskdeschell v Hauptzollamt Hamburg St Anne [1977] ECR
1753 at 1769; Case 61/77 Commission v Ireland [19781 ECR 4175 at para 50; Joined Cases 198 and
202/81 Michele v Commission [1982] ECR 4145 at 4157.
- Case 13/63 Italy v Commission [1963] ECR 165 at 178.
4 Joined Cases 50-60/74 Kampffmeyer Muhlervereinguna KG v Commission and the Council
[1976] ECR 711 at 744.
Ind,,trial aI.m Journal. Vol. 24. No. t. .arch 1995 33
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Equality of Treatment: A Variable Concept
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