ETHICAL FUNDAMENTS OF EUROPEAN POLICIES ON EQUAL TREATMENT

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1 European Journal of Law and Public Administration ISSN: (print) ISSN: (electronic) Covered in: CEEOL, RePec, SocioNet, EconPapers ETHICAL FUNDAMENTS OF EUROPEAN POLICIES ON EQUAL TREATMENT Antonio SANDU DOI: European Journal of Law and Public Administration, 2015, Volume 2, Issue 1, pp Published by: Lumen Publishing House On behalf of: Stefan cel Mare University from Suceava, Faculty of Economics and Public Administration, Department of Law and Public Administration

2 ETHICAL FUNDAMENTS OF EUROPEAN POLICIES ON EQUAL ETHICAL FUNDAMENTS OF EUROPEAN POLICIES ON EQUAL TREATMENT 1 Antonio SANDU 2 Abstract Equality doesn t mean identity, but similarity in at least one of the domains of categorization. Referring to the gender inequalities, these developed from the preconceived idea of superior importance of masculinity, given by the numerical and historical experience of their participation in confrontations, and implicitly as male preponderance in the dominant areas of society. The essence of prescriptive equality is that of equality before the law. The political theory and the egalitarian philosophies focus on identifying reasonable principles that once elected, constitute the fundament of a public agreement on common good, and which are beyond the different positions in which they are participants. In the content of the paper, we examined a series of references to some of the most important acts that govern the equal treatment in the fields of work and wages in the EU. Keywords: equal treatment, European policies, egalitarian ethics, regulations of the right to equal treatment. JEL Classification: H1, K3. 1 The paper was presented at the "Regional Development from Strategy EUROPE 2020 Perspective" Conference which took place in Suceava, between May 8-9, Professor PhD, Stefan cel Mare University from Suceava, Romania, antonio1907@yahoo.com 47

3 ANTONIO SANDU INTRODUCTION Ronald Dworkin 3 (2002) shows that there is no single definition of the term equality, accepted by the majority of thinkers, to be focused on the field, but rather a confusion generated by the polysemy of this term. The term equality doesn t target an intersubjective equivalence, but the existence of a set of similar subjective values, which can lead to the value correspondence between the different groups of people, processes and circumstances (Gosepath, 2011). Equality doesn t mean identity, but similarity in at least one of the areas of categorization. The primary understanding of the term equality targets the quantitative side of the concept, there can be equal things whose measure has an identical numerical value. The acceptation of numerical equality generates the majority of forms of inequity, as we search for objective measures whose values to be equalized, and not subjective values whose equality is presumed. Referring to gender inequalities, they have developed from the preconceived idea of superior importance of masculinity, given by the numerical and historical experience of their participation in confrontations and implicitly as masculine preponderance in the dominant areas of society. Numerical equality is however capable to restore equity when used as measure of retribution. The principle of equity in the field of wage, for example targeting the idea of equal work, equal remuneration. We practically have a descriptive equality, namely the equal work in respect to the prescriptive equality of the need for equal wage. Prescriptive equality has apodictic value, being presumed in the current systems of Law. The essence of prescriptive is that of equality in front of the law. Of course, European history and not only, shows that prescriptive equality is a conquest of modernity. Slavery, lack of rights for different categories of population has perpetuated until the XX-th century. Although the abolition of slavery took place in the XVIIIth century, inequities regarding the treatment of minorities has persisted. The apartheid and the racial segregation was maintained in South Africa until USA has maintained the discrimination against african-americans until the end of the XXth century, and despite the fact that today, the president of the USA is an african-american person, not all American states practice constitutional equality and non-discrimination on racial grounds. Europe has become known as one of the most horrible horrors caused by the intolerance of fascism in the centre of the policy of extermination of inferior races. In turn, the communist regimes, specially the Stalinist one, have legitimized the idea of class hatred, 3 In this article, we developed a series of themes tangentially included in the volume Sandu, A. (2015). Etică profesională şi transparenţă în administraţia publică [Professional ethics and transparency in public administration]. Bucureşti, România: Didactică şi Pedagogică Publishing House. 48

4 ETHICAL FUNDAMENTS OF EUROPEAN POLICIES ON EQUAL justifying the crimes against humanity through the need to re-educate the reactionary elements. As regarding the equal treatment of women and men, it appears as a conquest of the XXth century, which regulates both women s right to work and the right to equal payment. It is one of the merits of the feminist movement to bring to public attention the issue of women s emancipation, the right to work being a key element. However, it can highlight quite frequently a series of inequalities of treatment regarding the access to employment of women, and a lower wage in equal work conditions. Equality was always regarded as the constitutive framework of justice, and implicitly of law. In achieving social justice, we see a general framework regarding the public policies, and implicitly their normative framework, and also a particular one regarding the implementation of policies and the non-discriminating governance system. THEORETICAL PERSPECTIVES ON EQUALITY AS POLITICAL PRACTICE Egalitarianism as political philosophy promotes the idea of social justice, based on the substantial equality among community members. Therefore, on egalitarian bases, the fundamental principles of justice can be established, and with it it can establish the standards of moral evaluation to allow assessing the level of justice or injustice that occurs at the level of practice or policy (Huzum, 2013; Sandu, 2015). The contemporary egalitarian theories understnd justice both as mutual benefit and as impartiality. Political theory and egalitarian philosophies focus on identifying the principles that once reasonably chosen, constitute the fundament of a public agreement on common good, and that are beyond the different positions of the participants. In the contemporary political and legal practice, there are several ideological perspectives that target the particular methods through which justice can be done. The most complex perspective is that of justice as equity or of distributive justice formulated by John Rawls (2012; Sandu, Caras, 2013). For John Rawls, a just society is one in which there are fulfilled at least a series of principles or conditions in distributing goods and resources: equal right and extended to the maximum for each individual to the total system of liberty of equal basis, and in the same time being a system of freedoms similar to all; the principle of fair equality of opportunities, which requires potential equality for accessing social positions and opportunities; 49

5 ANTONIO SANDU the principle of difference is the position according to which the greatest benefit must be assigned to the least advantaged members of society (Rawls, 2012). By equal opportunities we understand the distribution of positions and roles based on merit in a society that created the conditions according to which, regardless of the social class in which the individual was born, all citizens have the same talent and will to use it, and are capable to benefit from the equal possibilities to access those roles and positions. Huzum states that: In other words, Rawlsian equality is a substantial equality, not a formal equality of opportunities (Huzum, 2011). The principles are consistent with one another as society is fair when it fully performs the principle of equal liberties, the principle of equitable equalities only to the extent to which it s allowed by the principle of equal freedoms, and the principle of difference is satisfied only after the maximum fulfilment of the first two (Huzum, 2011). Another theory of justice, called justice as justification, is formulated by Nozick (1997) and implies protecting the negative rights to life and integrity, liberty and non-coercion and property. The same theory regards the right distribution of properties in the society (Huzum, 2011). According to this theory, property is legitimate when it was acquired based on the principle of justice in transfer, only from someone who is also entitled to that property. Eugen Huzum highlights that the principle of Nozick regarding the acquisitive justice is based on the theory of John Lock according to which property is justly set only over a not previously possessed object (Huzum, 2011), and on which the one willing to possess it exerts an action. Once ownership established, this is legitimately transmitted only on voluntary grounds. Taking into possession of goods from nature, by exercising something on them, is legitimate and justified, only if it was not possessed by anyone previously, and taking into possession doesn t prejudice anyone (Huzum, 2011; Sandu, 2015). Nozick s principle of justice criticizes the idea of distributivity when it is not based on voluntary agreement. The only legitimate redistribution is that based on doing justice as restorative act. This theory can be based on the idea of restitutive justice, by replacing the retributive idea with the one of justified retribution. The egalitarians of chance aim the reconciliation between social distributive justice with individual responsibility (Huzum, 2013). The intuitions underlying the egalitarian theory regarding right and injustice, targets: misfortune by option, as social disadvantage suffered by individuals, as a result of their own choices or actions for which they are responsible, doesn t constitute an injustice and doesn t require compensation; the disadvantages due to blind chance, that don t depend in any way on the choices of the individuals, and are not under their control, 50

6 ETHICAL FUNDAMENTS OF EUROPEAN POLICIES ON EQUAL constitutes injustice and impose compensation by other members of the society (Huzum, 2011; Sandu, 2015). Society has the duty to compensate the results of the uncontrollable bad lack results, supporting those members who are not responsible for their own failure. The critic brought by this theory is that it no longer takes into account the need to eliminate social oppression and to develop a community of citizens who are in a relationship of equality with the others. Another criticism is the moralistic and paternalistic attitude of this system, which refuses to assist the victims of bad luck through option (Huzum, 2011; Sandu, 2015). The literature distinguishes between distributive and relational egalitarianism, the first one referring to the egalitarianism of chance, opportunity, and the second one to egalitarianism of resources. The distribution of justice targets the resources existing at the level of society, and the advantages (Rawls, 2012; Huzum, 2013; Sandu, Caras, 2013). PARTICULARITIES OF THE EUROPEAN RIGHTS ON NON- DISCRIMINATION The normative fundaments of the European politics in the field of nondiscrimination and equal treatment come on double pathway, both by applying the European Convention of Human Rights, and through the dispositions in the field of constitutive EU treaties. The European Convention of Human Rights institutes the protection against discriminating all nationals, citizens or not of the signatory States. The criterion of citizenship is not significant, since the Convention applies only to those living on the territory of the signatory states, regardless of their nationality. (Viorescu, 2010). The legal protection against discrimination guaranteed by the constitutive treaties of EU, applies only to the citizens of their member states in the context of free circulation of persons, excluding from protection the residents of the EU countries that don t have European citizenship (Agency for Fundamental Rights of the European Union, 2010). The Directive 2004/38/EC on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States (JO L 158, April 30, 2004, p. 77) applies exclusively to the citizens of the EU member states, thus introducing an unequal treatment based on nationality. The objective of the European anti-discrimination policies was a pragmatic one, namely facilitating the internal market. As such, the issue of nondiscrimination in the European law was limited to the field of employment. The directive on equal treatment among persons, regardless of race or ethnical origin since 2000, is the one to extend the issue and the area of access to goods and services, including public services of social work (Agency for Fundamental Rights 51

7 ANTONIO SANDU of European Union, 2010) (Viorescu, 2011). The motivation of needing these extensions of non-discrimination in the social European right is given by the impossibility of ensuring equality regarding the occupation, without taking into account the other elements of social security and protection. The Directive from 2000 constitutes general framework that regulates equal treatment, regarding the employment framework and free access to social services for the citizens of the EU member states regardless of gender, age, handicap, sexual, political or religious orientation (Fundamental Rights of the European Union Agency, 2010) (Viorescu R., Blanc D., Manson S., 2008). THE REGULATION OF EQUAL TREATMENT (ON EMPLOYMENT) IN THE EUROPEAN UNION One of the instruments of employment of equal treatment on employment of the citizens of EU members is represented by the Council Directive 2000/78/EC of 27 November 2000, establishing a general framework for equal treatment in employment and occupation. The fundament of this directive in constitutive treaties refers to article 5 from the Treaty regarding European Union (The Treaty from Maastricht with amendments and changes in the Treaty from Lisbon). This Directive reaffirms the principle of equality between women and men, citing a series of previous normative acts, among which the Council Directive 76/207/EEC of 9 February 1976 on the implementation of the principle of equal treatment for men and women as regards access to employment, vocational training and promotion, and working conditions. The background of the Council Directive 2000/78/CE in international right of the directive refers to: Universal Declaration of Human Rights, United Nations Convention regarding eliminating all forms of discrimination towards women, the Pact of United Nations regarding civil and political rights, and economic, social and cultural rights, the European Convention on defending human rights and fundamental freedoms and the Convention no. 111 of the International Labour Organisation. This Directive also refers to the Community Charter of social fundamental rights of workers, that acknowledges the importance of combating the discriminating practices in all forms, including the need to take appropriate measures in favour of social and economic integration of elderly and handicapped people (Art. 6, Council Directive 2000/78/CE). The purpose of the Council Directive 2000/78/CE, and in general of the existing normativity in EU regarding non-discrimination and equal treatment targets the implementation of article 3 from the CE Treaty (Treaty from Rome) which requires eliminating inequalities and promoting equality among men and women. 52

8 ETHICAL FUNDAMENTS OF EUROPEAN POLICIES ON EQUAL The Council Directive 2000/78/CE extends the idea of nondiscrimination and equal treatment to other categories of workers, referring to handicapped persons, conscience minorities etc. (Viorescu, 2010) The Council Directive 2000/78/CE shows the need for constituting a market of labour force favourable to the social integration in accordance to the guidelines for employment approved by the European Council from Helsinki in 10 and 11th of December 1999 (Art. 8, The Council Directive 2000/78/CE). These concern the elders non-discrimination based on age handicapped persona, introducing the idea of non-discrimination on grounds of disability and handicap. Justifying the need for this directive refers to the fact that the working place, along with the function, constitute key elements in creating the premises of guaranteeing equal chances, contributing to a great extent to the citizens participation in the economic, cultural and social life, while ensuring the most efficient personal development of the citizens members of the EU States (Art. 9, Council Directive 2000/78/CE). The provisions of the Directive must be read in junction with those of the Directive 2000/43/CE regarding respecting the principle of equality among persons, regardless of race or ethical origin, which guarantees protection against discrimination in the area of employment and work conditions (Art. 10, Council Directive 2000/78/CE). Regarding the conscience minorities, the Directive states that discrimination based on religion or beliefs, handicaps, age or sexual orientation can compromise the objectives of the CE Treaty, such as: a high level of employment and social protection, increasing the living standards and quality of life, economical cohesion, solidarity and free circulation of persons (Art. 11, Council Directive 2000/78/CE). Basically, the Directive prohibits any direct or indirect discrimination based on religion or beliefs, handicaps, age or sexual orientation. The prohibition of this type of discrimination must apply fairly to the third-country nationals, but it doesn t target the differences of treatment based on nationality and doesn t access the dispositions regarding the entry and residence of the third-country nationals and their access to employment (Art. 12, Council Directive 2000/78/CE). An important exception to the principle of non-discrimination aims to grant permission to states to give different treatments that can be labelled as discriminating in the field of defence and national security (Art. 19, Council Directive 2000/78/CE). There are also regulated the special cases in which, due to the specific of a certain profession, discrimination on age criteria is imposed, without violating the fundamental right to work (Art. 25, Council Directive 2000/78/CE). 53

9 ANTONIO SANDU In the context of non-discrimination and equal treatment, the directive talks of compensatory policies of the disadvantages of a group of people of a certain religion or belief, with certain handicaps, of a certain age or sexual orientation etc. (Art. 26, Council Directive 2000/78/CE). The mentioned article legitimates the states to apply policies of positive discrimination as affirmative measures, destined to lead a more real treatment equality in the situations in which the simple prohibition of discrimination cannot guarantee the realization of the right. The Directive stipulates a series of minimal frameworks to apply when the national legislation is no longer favourable. In general, this is a principle of the european social right which establishes the minimal standards in the field, that cannot be the source of limitations of the already existing right from the national law (Art. 28, Council Directive 2000/78/CE). The Directive talks about the need for legal protection of equity, establishing the need for free access to justice in the field of issues of proper application of equity in work and social reports at European level. CONCLUSIONS Equal treatment in terms of access to employment represents a political and legal dimension of the proper functioning of European Union. At the level of European Union puts accent on the social dimensions, precisely to ensure liberty of the European citizens. Without a real equity and equal treatment, we cannot talk about the freedom of the citizen and cannot build an European identity centred on democratic values common to all citizens of EU. REFERENCES Agenţia pentru Drepturi Fundamentale a Uniunii Europene (2010). Manual de drept european privind nediscriminarea. Luxembourg: Imprimerie Centrale. Available online at: FRA_CASE_LAW_HANDBOOK_RO.pdf Dworkin, R. (2000). Sovereign Virtue. The Theory and Practice of Equality. Cambridge: Harvard University Press. Gosepath, S. (2011). Equality. The Stanford Encyclopedia of Philosophy (Spring 2011 Edition), Edward N. Zalta (ed.). Available online at: Huzum, E. (2011). Dreptatea socială (pp ). In Huzum, E. (coord.) Concepte şi teorii social-politice. Iaşi, România: Institutul European Publishing. Huzum, E. (2013). Egalitarianismul. In Huzum, E. (coord). Teorii şi ideologii politice, Iaşi, România: Institutului European Publishing. 54

10 ETHICAL FUNDAMENTS OF EUROPEAN POLICIES ON EQUAL Nozick, R. (1997). Anarhie, stat şi utopie. Translated by Dumitru, M., Bucureşti, România: Humanitas Publishing. Rawls, J. (2012). O teorie a dreptăţii. Iasi, România: Universităţii Al. I Cuza Iaşi Publishing. Sandu, A. (2015). Etică profesională şi transparenţă în administraţia publică. Bucureşti, România: Didactică şi Pedagogică-RA Publishing. Sandu, A., Caras, A. (2013). Kantian Ethics vs. Utilitarian and Consequentialist Ethics in the Kidney Transplant (pp ). In Sandu, A., Caras, A. (eds). Proceedings of International Scientific Conference Tradition an Reform Social Reconstruction of Europe, November 7-8, 2013, Bucharest. Viorescu R., Blanc D., Manson S. ş.a. (2008). Institutions Europeennes, Miskolc University Press, 2008, ISBN , (La serie: Education Europeenes des Fonctionnaires Publics ) Viorescu R., The Charter of fundamental rights of the European Union according to Lisbon Treaty, The Annals of The Stefan cel Mare University Suceava. Fascicle of the Faculty of Economics and Public Administration, Anul 10, nr. 10, vol. 10, issue Special, Editura Universităţii Suceava, Viorescu R., Protecţia drepturilor omului şi Uniunea Europeană, Revista DREPTULNr.1/2011, Legislation Directive 2004/38/EC on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States (JO L 158, 30 aprilie 2004, p. 77). Council Directive 76/207/EEC of 9 February 1976 on the implementation of the principle of equal treatment for men and women as regards access to employment, vocational training and promotion, and working conditions Directive 2000/78/EC of 27 November 2000, establishing a general framework for equal treatment in employment and occupation. Treaty of Lisbon published in the Official Journal of the European Union C 306, Treaty of Maastricht (7 februarie 1992) Treaty of instituting the European economic community (1957) 55