MAINSTREAMING EQUALITY AND DIVERSITY IN EUROPEAN UNION LAW AND POLICY

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1 MAINSTREAMING EQUALITY AND DIVERSITY IN EUROPEAN UNION LAW AND POLICY Jo Shaw* 1 Setting the scene This article has twin objectives: (1) to consider how it is possible to give constitutional form and effect to the principles of equality and diversity, in the wider context of (2) delivering effective, transparent and legitimate governance in the European Union (hereinafter EU or Union ). In the context of strategies for securing equality and diversity and in the context of the emergent EU constitutional system, it pays particular attention to the meanings and scope of the tool of mainstreaming. By mainstreaming equality is meant: the integration of equal opportunities principles, strategies and practices into the every day work of Government and other public bodies from the outset, involving every day policy actors in addition to equality specialists. In other words, it entails rethinking mainstream provision to accommodate gender, race, disability and other dimensions of discrimination and disadvantage, including class, sexuality and religion. 1 The first section sets the scene for the argument to be made that the Treaty establishing a Constitution for Europe, 2 if it is ratified by the Member States, can make an important contribution in this area where the EU s day-to-day governance challenges and its broader constitutional framework, including the upholding of basic norms such as equality, intersect. Section 1 does so by considering sequentially the place of equality and diversity in the legal order of the Union and the nature and scope of the challenge of mainstreaming. Section 2 looks at constitutional and governance reform in the Union in more detail, with a particular focus on equality and diversity. Section 3 is concerned with better understanding how mainstreaming can and does operate as a policy tool. Section 4 then turns in a more practical bent towards the extent to which the promise of mainstreaming within the framework of a culture of constitutionalism and good governance can be achieved successfully through the implementation of the Constitutional Treaty, with a specific focus on * My reflections on equality mainstreaming were originally triggered by a request to write a report on Article III-118 of the Constitutional Treaty by the European Network Against Racism. I am grateful for the funding provided by ENAR to support the writing of the Report. The Report, entitled Mainstreaming Equality in European Union Law and Policymaking, can be found on the ENAR website ( I am grateful feedback given at the Current Legal Problem Lecture on 28 October 2004, at which I delivered a first draft of this article, and I am especially grateful to Tammy Hervey for giving me detailed written comments on a second draft. 1 Text drawn from the website of the UK Equal Opportunities Commission: (visited 13 June 2005). 2 Hereinafter referred to as Constitutional Treaty. Treaty establishing a Constitution for Europe, [2004] OJ C310/1. 1

2 Article III-118 CT. 3 Article III-118 CT would introduce a novel approach to equality to the existing constitutional toolkit of the Union, by providing that: In defining and implementing the policies and activities referred to in this Part, the Union shall aim to combat discrimination based on sex, racial or ethnic origin, religion or belief, disability, age or sexual orientation. The practical realization of the challenges embedded in this provision provides the central empirical focus of this article. It is important to stress, however, that even if the provision is not formally brought into force in the event that the Constitutional Treaty is not eventually ratified, the ideas which it embodies in terms of constitutionalising the mainstreaming of equality and diversity can still become increasingly influential for the development of governance in the EU. 4 a) Equality and Diversity in the European Union In one guise or another, the concept of equality has always been central to the evolving legal order of the European Union. So far as the Union is based on an international law system of treaties, it draws upon the fundamental international law principle of the equality of sovereign states. Non-discrimination, or equal treatment, on grounds of nationality is a core principle of the single market, underpinning many aspects of the free movement of goods, services, persons and capital. Gillian More calls it, in that context, a market unifier. 5 Gender equality initially in the limited form of a guarantee of equal pay for equal work of equal value for women and men, and subsequently in the form of a more wide ranging equal treatment principle applying to all aspects of employment and training, and most aspects of welfare is deeply rooted in the EC and EU Treaties, in legislation, and in an extensive case law of the Court of Justice. The Court of Justice has recognized gender equality in its case law as a fundamental principle of the Union legal order. 6 Gender equality has come to be widely viewed in the literature as a constitutionally embedded fundamental right under EU law. 7 Since 1999 and the Treaty of Amsterdam, gender equality perspectives have been given an integrated constitutional basis in EU policy-making through Article 3(2) EC: In all [its] activities, the Community shall aim to eliminate inequalities, and to promote equality, between men and women The designation CT refers to provisions of the Constitutional Treaty. References to provisions of the EC and EU treaties (or TEU Treaty on European Union) refer EC Treaty of 1957 and the TEU of 1993, as amended most recently by the Treaty of Nice which came into force in For example, in June 2005, the Luxembourg Presidency held a conference aimed at NGOs on Mainstreaming diversity: opening the debate with the whole of society ( visited 14 June 2005) which did not link the debate to the Constitutional Treaty as such, but rather to the task of developing the link between social policy-making and wider civil society. G. More, The Principle of Equal Treatment: From Market Unifier to Fundamental Right?, in P. Craig and G. de Búrca (eds.), The Evolution of EU Law (Oxford: Oxford University Press, 1999), Case 149/77 Defrenne v SABENA (No. 3) [1978] ECR 1365 at C. Barnard, Gender Equality in the EU: A Balance Sheet, in P. Alston (ed.), The EU and Human Rights (Oxford: Oxford University Press, 1999),

3 The Treaty of Amsterdam also introduced into the EC Treaty a legal basis for the adoption of measures combating discrimination on grounds of sex, racial or ethnic origin, age, disability, religion and sexual orientation, and important directives have been enacted on the basis of this provision to prohibit discrimination on grounds of racial and ethnic origin, age, disability, religion and sexual orientation, as well as gender in fields outside employment (Article 13 EC). The Charter of Fundamental Rights, agreed on a declaratory basis in 2000, 8 enshrined a range of equality principles, from a formal principle of (individual) equality before the law to more proactive principles seeking to promote substantive equality in areas such as gender and disability. Article 21 of the Charter of Fundamental Rights is not limited like Article 13, and refers in an open-textured provision to the prohibition of any discrimination on grounds such as sex, race, colour, ethnic or social origin, genetic features, language, religion or belief, political or any other opinion, membership of a national minority, property, birth, disability, age or sexual orientation. However, this is not a prohibition on discrimination which can currently be relied upon in the Court of Justice, because of the declaratory status of the Charter. In all these provisions, there has been a patchwork of models of equality which have emerged in the context of EU equality law and policy. 9 These comprise three main strands: ensuring antidiscrimination in the formal sense, working towards substantive equality, and managing diversity. This has sometimes led to confusion about the extent and nature of the existing guarantees of equality within EU law. The logical next step, in the constitutional reform process which gripped the Union from 2000 onwards, and occupied much time and effort on the part of key actors in the institutions and the Member States, and which became a central focus for commentators upon the Union s constitutional scene, was to build on these principles and to bring equality fully into the mainstream of Union law and policy within the constitutional texts. 10 In contrast, the concept of diversity has played generally a much more hidden (and less intensively studied) role in the development of EU law. It is self evident that the very foundation stone of the single market concerns the project of coping with national diversity in relation to regulation, customs and habits (of production and consumption), and the operation of markets. The case law of the Court of Justice on the free movement of goods has involved adjudication between the merits of centralization, harmonization and mutual recognition, and the preservation of local powers to regulate products and markets. Diversity is now explicitly recognized in the EC Treaty, specifically with a view to its protection and preservation. Thus the cultural and linguistic diversity of the educational systems of the Member States is protected under Article 149 EC 11 against encroachment on the part of Union education and vocational training policies. Likewise under Article 151 EC, when the Union is called upon to contribute to the flowering of the cultures of the Member Charter of Fundamental Rights of the European Union, Solemn Proclamation by the Presidents of the European Parliament, the European Commission and the Council of Ministers, Nice, 7 December 2000, [2000] OJ C364/1. M. Bell, The Right to Equality and Non-Discrimination, in T. Hervey and J. Kenner (eds.), Economic and Social Rights under the EU Charter of Fundamental Rights. A Legal Perspective (Oxford: Hart Publishing, 2003), J. Shaw, The European Union and Gender Mainstreaming: Constitutionally Embedded or Comprehensively Marginalised?, (2002) 10 Feminist Legal Studies, The designation EC is used to identify that Treaty provisions which are cited come from the EC Treaty, as amended up to and including the Treaty of Nice. 3

4 States, it is enjoined to do so whilst respecting their national and regional diversity. 12 Article 174(2) EC requires the development of Union environmental policy to take into account the diversity of situations within the Member States. Beyond these instances of explicit recognition, it is safe to assume that this concept of diversity aimed at the Member States and to some extent at the regions and localities of the Member States, has been a central animating concept in the evolution of much Union policy. However, unlike the concept of equality, which has become increasingly attached under Union law and policy to the situations of individuals and social groups rather than those of the Member States and the regions, diversity has remained securely anchored at the collective and institutional level, rather than at the level of the individual. Diversity, as it has been understood and applied in the Union context, has largely been as a counterpoint to uniformity, rather than as a complement to equality. b) Mainstreaming equality and diversity This article examines the challenge of mainstreaming 13 equality and diversity in the European Union s legal, institutional and constitutional framework. Equality mainstreaming is a deceptively simple idea which involves the incorporation of Equal Opportunities issues into all actions, programmes and policies from the start. 14 According to Christopher McCrudden, it is quite simply the principle that equality be seen as an integral part of all public policy-making and implementation, rather than something separated off in a policy or institutional ghetto. 15 In other words, all policy fields must take account of a core principle, namely equality. Picking this up and reformulating the principle as diversity mainstreaming Olena Hankivsky, citing Rita Dhamoon, calls it a roadmap for policy with normative concerns for social justice. 16 Obviously, these ideals are less easy to achieve than they are to state, not least because it is clear that several highly contested concepts (equality and diversity) are placed at the centre of the analysis. 17 The turn to mainstreaming as a new approach to promoting equality and combating discrimination is not confined to the Union. In fact, mainstreaming For an argument that policies have thus far failed fully to exploit these possibilities, see T. Ahmed and T. Hervey, 'The European Union and Cultural Diversity: A Missed Opportunity?" (2004) 2 European Yearbook of Minority Issues Mainstreaming is a very difficult term, barely capable of translation into languages other than the English in which it originated in the documents such as those of the United Nations Development Programme and the Beijing Platform. References have been made to the concept of approche integrée in French, but this is as vague as mainstreaming itself. One possible term in German is Gleichstellung als Querschnittsansatz, (i.e. equality as a cross-cutting challenge), but more often than not as in many other languages the English term is used. For example, the title of a recent collection in German on gender mainstreaming is Was bewirkt das Gender Mainstreaming?, eds. U. Behning and B. Sauer, (Frankfurt: Campus Verlag, 2005). T. Rees, Mainstreaming Equality in the European Union: Education, Training and Labour Market Policies (London: Routledge, 1998), 3-4. C. McCrudden, Equality, in C.J. Harvey, Human Rights, Equality and Democratic Renewal in Northern Ireland (Oxford: Hart Publishing, 2001), , 75. O. Hankivsky, Gender Mainstreaming vs. Diversity Mainstreaming: A Preliminary Examination of the Role and Transformative Potential of Feminist Theory, forthcoming, Canadian Journal of Political Science, December 2005, 2 (page numbers refer to draft typescript), 3. The quotation from Rita Dhamoon is taken from private correspondence. See S. Walby, Gender Mainstreaming: productive tensions in theory and practice, (2005) 12 Social Politics, issue no. 3, forthcoming. 4

5 originates in the sphere of international relations, in the area of development assistance, where the language of (gender) mainstreaming emerged in the context of the work of the World Bank and in decision-making by the United Nations Development Programme. The language of mainstreaming infused the work of the United Nations Third World Conference on Women in 1985 and was adopted as a strategic objective by the United Nations in the Platform for Action agreed at Beijing in According to Fiona Beveridge and Jo Shaw, The recognition awarded to mainstreaming in the Platform for Action served both to reflect growing interest in the idea of mainstreaming and to encourage states and international organisations which had not already done so to adopt their own mainstreaming strategies and policies. It also signalled the widespread acceptance in the international community of the concept of mainstreaming as a new approach to gender equality. 19 Much important early reflective work took place in the context of the Council of Europe, 20 which likewise has given rise to an influential and much-cited definition which is widely attributed to Mieke Verloo. 21 This states that Gender mainstreaming is the (re)organisation, improvement, development and evaluation of policy processes, so that a gender equality perspective is incorporated in all policies at all levels at all stages, by the actors normally involved in policy making. Gender mainstreaming has since been applied also in many national contexts, 22 both within the Member States of the European Union 23 and elsewhere such as Canada 24 and Australia. 25 It is well established that mainstreaming may take different forms in different contexts, especially when the national/regional context is compared to the On the development of gender mainstreaming in global governance see E. Hafner-Burton and M. Pollack, Gender Mainstreaming and Global Governance, (2002) 10 Feminist Legal Studies ; E. Hafner-Burton and M.A. Pollack, Mainstreaming Gender in Global Governance, (2002) 8 European Journal of International Relations ; J. True, Mainstreaming Gender in Global Public Policy, (2003) 5 International Feminist Journal of Politics F. Beveridge and J. Shaw, Introduction: Mainstreaming Gender in European Public Policy, (2002) 10 Feminist Legal Studies , 209. J. Lovecy, Gender Mainstreaming and the Framing of Women s Rights in Europe: The Contribution of the Council of Europe, (2002) 10 Feminist Legal Studies Council of Europe, Gender Mainstreaming: Conceptual Framework, Methodology and Presentation of Good Practices, EG-S-MS (98) 2 rev., 1998, 15. For a review see F. Mackay and K. Bilton, Learning from Experience: Lessons in Mainstreaming Equal Opportunities, (Edinburgh, Scottish Executive Social Research, 2003). F. Beveridge, S. Nott and K. Stephens (eds.), Making Women Count. Integrating gender into law and policy-making (Aldershot: Ashgate, 2000); A.-M. McGauran, Plus ça change? Gender Mainstreaming of the Irish National Development Plan, (Dublin: The Policy Institute, 2005). For ongoing research on implementation at national level, including in the new Member States, see the Framework Five funded project Policy Frames and Implementation Problems: the case of gender mainstreaming: (MAGEEQ) (visited 13 June 2005). See Hankivsky, Diversity Mainstreaming, 6-7 for a short summary of Canadian initiatives. T. Donaghy, Applications of Mainstreaming in Australia and Northern Ireland, (2004) 25 International Political Science Review

6 supranational/international context. 26 Gender mainstreaming is a relatively wellestablished, even if still quite poorly understood, aspect of the Commission policy tool box available for ensuring equal treatment for men and women. 27 According to the European Commission, gender mainstreaming involves: The systematic integration of the respective situations, priorities and needs of women and men in all policies and with a view to promoting equality between women and men and mobilising all general policies and measures specifically for the purpose of achieving equality by actively and openly taking into account, at the planning stage, their effect on the respective situation of women and men. 28 This means that no matter what the basis for EU competence in a matter whether exclusive, shared or complementary and whether the question concerns internal or external action, gender equality issues must be integrated into policy-making. The principle of mainstreaming will apply whether the policy takes the form of hard legislation adopted by the Union institutions and implemented at national level (e.g. in the environmental field), or of softer forms of so-called new governance, where EU policy-making is confined to setting recommendations or guidelines for national action, or to benchmarking national policies in order to ensure gradual coordination or the transference of best practices between the Member States. Gender mainstreaming was given a constitutional basis in EU law through Article 3(2) EC. 29 Not all commentators are optimistic about the state of gender equality policy and practices of gender mainstreaming within the EU level, or contented with all of its results. 30 Jill Rubery and collaborators, for example, have highlighted mixed messages coming from the Member States in the context of the development of the European Employment Strategy, where gender has been increasingly airbrushed out C. Wank, Different Conceptualisations of Gender Mainstreaming in Different Institutional Settings: the specific interpretation of Gender Mainstreaming by the European Commission and the Goal of Gender Equality, Paper prepared for the ECPR Conference, Marburg, September See generally, S. Mazey, Gender Mainstreaming in the EU: Principles and Practice (London: Kogan Page, 2001); A. Woodward, European Gender Mainstreaming: Promises and Pitfalls of Transformative Policy, (2003) 20 Review of Policy Research, 65-88; F. Beveridge and J. Shaw, Gender Mainstreaming in European Public Policy, Special Issue of Feminist Legal Studies, (2002), vol. 10, no. 3, ; C. Booth and C. Bennett, Gender Mainstreaming in the European Union: Toward a New Conception and Practice of Equal Opportunities, (2002) 9 European Journal of Women s Studies, ; M. Pollack and E. Hafner-Burton, Mainstreaming Gender in the European Union, (2000) 7 Journal of European Public Policy, Commission Communication, Incorporating Equal Opportunities for Women and Men into All Community Policies and Activities, COM(96) 67, 2. See text in Section 1a) above. M. Verloo, Mainstreaming Gender Equality in Europe. A Frame Analysis Approach, Paper delivered to the Conference of Europeanists, Chicago, Il, March See a series of articles in the Industrial Relations Journal: J. Rubery, Gender Mainstreaming and gender equality in the EU: the impact of the EU employment strategy, (2002) 33 Industrial Relations Journal ; J. Rubery et al, Gender equality still on the European agenda but for how long?, (2003) 34 Industrial Relations Journal, ; J. Rubery et al, The ups and downs of European gender equality policy, (2004) 35 Industrial Relations Journal, ; J. Rubery et al, How to close the gender pay gap in Europe: towards the gender mainstreaming of pay policy, (2005) 36 Industrial Relations Journal,

7 There has been a fear that gender mainstreaming itself has been introduced at the expense of specific measures which focus on long term, systemic and structural inequalities faced by women in the labour market. A good example is the threat which appeared to hang over the EQUAL programme in the context of the mid-term review of the Structural Funds. 32 The original focus on gender mainstreaming is being replaced by a more generalised, but thus far rather unfocused attempt to mainstream equality. More seriously, it has been suggested that it would be (politically) preferable to mainstream equality into all the programmes horizontally, rather than having a specific programme such as EQUAL. 33 This may threaten the funds being directed at vulnerable groups who are women, especially ethnic minority women who face double discrimination. Policy-makers have experienced only limited success in applying the techniques of mainstreaming away from the field of gender. There have been mixed results in the field of policy on combating racism and xenophobia. From the date of the Amsterdam summit in June 1997 until the Laeken European Council, the fight against racism and xenophobia always featured in the Presidency Conclusions issued at the end of each European Council meeting. This prominence for anti-racism policy coincided not only with the strengthening of the human rights and anti-discrimination provisions of the Treaty on European Union and the EC Treaty by the Treaty of Amsterdam (came into force: 1999), but also with the designation of 1997 as European Year Against Racism. The late 1990s were an important era for intensive policy-making in the anti-racism sphere. The mainstreaming of anti-racism figured prominently in policy rhetoric, especially after the adoption of the 1998 Action Plan against Racism. 34 This was followed up by further documents, such as the Commission Report in 2000 on the implementation of the Action Plan against Racism, entitled Mainstreaming the fight against racism, 35 as well as in documents prepared by the Commission before and since the Durban anti-racism Conference in In contrast, the 2000s appear to have been the era in which anti-racism policy-making has been watered down, even though the decade began with the adoption of the directive on racial equality which requires the Member States to make substantial amendments to national legislation 37 and the adoption of the Action Programme which enables the Commission proactively to promote equality-focused activities. This loss of focus on the specific question of racism also appears to be signalled by the European Council initiative in December See the Commission s Third Report on Economic and Social Cohesion, 2004, where EQUAL does not appear in the summary of instruments and objectives in the Executive Summary. For information on EQUAL see the Commission s Website: (visited 14 June 2005). COM(1998) 183, 25 March Commission Report on the implementation of the Action Plan against Racism, Mainstreaming the fight against racism, January Commission Communication, Contribution to the World Conference Against Racism, Racial Discrimination, Xenophobia and Related Intolerance, Durban, South Africa, 31 August 7 September 2001, COM(2001) 291 of 1 June 2001; Follow-ups to the World Conference against Racism, Contributions from the European Commission, dated November 2002, June 2003 and December The documents mentioned in this and the previous footnote, along with other documentation on EU policies on anti-racism can be found on the Employment and Social Affairs DG Website of the Commission: (visited 14 June 2005). Council Directive 2000/43/EC implementing the principle of equal treatment between persons irrespective of racial or ethnic origin, [2000] OJ L180/22. 7

8 2003 to replace the European Union Monitoring Centre concerned with racism and xenophobia (established at the conclusion of the 1997 Year against Racism) with a Fundamental Rights agency with a much wider vocation. The EUMC has expressed serious concern that its transformation should not detract from the urgent fight against racism. 38 The Commission itself admits that transforming the EUMC into a Fundamental Rights agency raises delicate questions. 39 There have been some limited attempts to mainstream disability issues into EU law and policy. According to the Commission s website, mainstreaming is one of the main objectives of policy on disability: When the Commission creates or changes a policy it aims to consider the needs and rights of people with disabilities. The Commission pays particular attention to disability aspects in its socio-economic policies, programmes and projects. 40 Finally, in the 2002 White Paper on A New Impetus for European Youth, prepared by the DG for Education and Culture, reference is made to the need for other policy areas to take account of youth. This constitutes the seedcorn of a mainstreaming approach which takes into account at least the youth dynamic of the Article 13 EC ground of age. Thus far there has been no comprehensive programme of equality mainstreaming cutting across various equality grounds, 41 although in the January 2000 Report on mainstreaming anti-racism, the Commission did refer to: the possible extension of the mainstreaming concept to include all the grounds for discrimination covered under Article 13 of the EU Treaty 42 The story, in sum, of mainstreaming equality in the EU is incomplete and in some respects a little incoherent. c) From scene-setting to argument The question we need to ask is the following: does Article III-118 CT offer (if the Constitutional Treaty is ratified) the possibility of a more comprehensive and more comprehensible policy of mainstreaming equality and diversity within the law and policy-making practices of the EU? The argument to be made is that it does indeed, but only under certain conditions involving a fuller prior understanding of the meanings and methods of mainstreaming, of the conditions of effective mainstreaming, and of the relationship between this contested term and the broad notions and practices of governance in the multi-level system which is today s EU. For the purposes of this article, governance can be simply defined as the production of authoritative decisions which are not produced by a single hierarchical structure, such as a democratically elected legislative EUMC Media Release, 15 March 2004, Issue: EN, Future EU human rights agency must not detract from urgent fight against racism, says EUMC. The Fundamental Rights Agency: Public consultation document, SEC(2004) 1281, Brussels, 25 October 2004, COM(2004) 693, 3. The EUMC is discussed in more detail below in Section 4c). (visited 13 June 2005). See generally, J. Shaw, Mainstreaming Equality in European Union Law and Policy-Making, European Network Against Racism, Brussels, It should actually be the EC Treaty. 8

9 assembly and government, but instead arise from the interaction of a plethora of public and private, collective and individual actors. 43 This definition tends to highlight the hard quality of governance, rather than the softer and more purely persuasive forms which are increasingly characteristic of much of what the EU actually does when it formulates and implements new policies. Recent years have seen the emergence of new styles of governance and policy-making in the Union context. There has been a shift away from reliance upon traditional legislation and regulatory measures towards softer techniques of governance based on persuasion rather than coercion. Moreover, there have been institutional initiatives, such as the European Commission s 2001 White Paper on Governance which have triggered more general debates about the future of governance in the Union. Finally, it is important to bear in mind the origins of Article III-118 CT in an ongoing and as yet incomplete constitutional reform process, the main outlines of which are sketched in the next section. Thus Section 2 looks at the place of equality and diversity in the wider framework of constitutional and governance reform in the European Union. Section 3 turns to mainstreaming and considers some aspects of the theory and the practice of mainstreaming. Given the wealth of material on concepts and practices of mainstreaming, the analysis in this article can only sketch out in brief some of the main lines of argument, bringing out three questions in particular: 1. What is the message or messages being mainstreamed? 2. What model or models of mainstreaming are being applied? 3. How is mainstreaming to be effected: i.e. what strategies of mainstreaming are being applied? This section also considers the call for a turn from gender mainstreaming to the mainstreaming of equality and diversity, the question whether mainstreaming can be a transformative political practice, and if so what the implications for law might be. Acknowledging the importance of the call to focus attention away from gender mainstreaming alone, the Section 4 considers how, in the light of the three practical questions highlighted here, the principles set out in Article III-118 could be implemented and developed, focusing on its constitutional and normative qualities, as well as upon its softer governance dimensions. In particular, it is the challenge of the third question, namely that of strategy, which links back to the underlying themes of constitutional and governance reform. 2 Constitutional and governance reform in the European Union: the place of equality and diversity a) The reform process: constitutionalism and governance The process of ongoing treaty reform in the European Union could be said to have started with the Single European Act in 1986, and certainly dates back to the Treaty of Maastricht in 1993, which was the first response of the Member States which took the form of a substantial realignment of the underlying legal structures of European integration to the challenges facing a post-cold War Europe. This process, which has 43 T. Christiansen, A. Føllesdal and S. Piattoni, Informal governance in the European Union: an introduction, in T. Christiansen and S. Piattoni (eds.), Informal governance in the European Union, (Cheltenham: Edward Elgar, 2003), 1-21, 6. 9

10 since acquired a distinctive constitutional clothing, was brought to an interim conclusion with the signature by the Member States of the Constitutional Treaty in Rome in October 2004, after political agreement was reached at an Intergovernmental Conference (IGC) in June This followed a lengthy process of reflection, deliberation and negotiation triggered at least in part by the Declaration on the Future of the Union appended to the Treaty of Nice when it was agreed at the end of Much of that work took place in the Convention on the Future of Europe, which was established by the subsequent Laeken Declaration of December The Convention met between 2002 and 2003 and was responsible for drafting the text of what has become Article III-118 CT, although in other respects the text which it put before the IGC was substantially changed by the Member States before they reached final agreement. What is notable about these processes is that they have not just been about treaty reform, but rather they have explicitly invoked the spirit and form of constitutions and constitutionalism although to what extent that is reflected in the final product is a moot point as the negotiations leading to the conclusion of the Treaty in June 2004 increasingly came to resemble conventional intergovernmental diplomacy rather than deliberation about a constitutional text. In form, at least, the Constitutional Treaty is just that: a Treaty. Even so, the Union displays and has continued to develop certain key constitutional features. The Constitutional Treaty itself adds to this, but much of the underpinning structure has been constructed through the case law of the Court of Justice and has been codified in earlier Treaty amendments, such as those of the Treaty of Amsterdam which contributed much in the area of fundamental rights and equality. Ironically, the reform processes did not have a particularly constitutional root. In many ways, these processes could be said to be a reflection of the emergence of a post-1989 consensus that for effective governance in an enlarged Union operating within a post-cold War Europe there needed to be substantial institutional reform. The Treaties of Amsterdam and Nice groped largely unsuccessfully towards the project of reforming the institutions in view of the anticipated enlargement which finally occurred on 1 May The reform processes have also reflected a concern which emerged particularly in the light of the difficulties associated with the ratification of the Treaty of Maastricht that there was a growing legitimacy gap in EU governance under which citizens feel alienated from the institutions of government. While this is often true at the national level, it is doubly true at the Union level where the feeling is reinforced by the complexity and obscurity of what the Union institutions actually do. Rightly or wrongly, those who framed the Constitutional Treaty felt that a response which addressed some of the questions about legitimacy and democracy which are typically also addressed in national constitutions could usefully be addressed in the text they were preparing. This lies behind some of the important innovations it contains which pertain to the evolution of a constitutional framework for equality and diversity, as well as participatory democracy I have written elsewhere at greater length on constitutional reform, e.g. in Europe s Constitutional Future, [2005] Public Law, This Declaration took the form of an appendix to the Conclusions of the European Council meeting of December The text can be found online at (visited: 15 June 2005). 10

11 Effectiveness for Union governance has not always and only been sought through the medium of macro-level treaty change. There has also been an ongoing debate about governance reform in the Union which does not require treaty change, reflected in the Commission s 2001 White Paper on Governance 46 and other initiatives such as better law-making 47 (which includes the participation of civil society and increased transparency) and regulatory reform (which includes the simplification and consolidation of legislation). The White Paper bemoaned the failure on the part of the Member States to take political responsibility for EU decision-making, especially the tendency to say one thing in Brussels and something else for the consumption of the national media. It proclaimed five key principles of good governance: openness, participation, accountability, effectiveness and coherence. The Commission insisted upon the enduring qualities of the so-called Monnet or Community method. This comprises two articles of faith: the first concerns the role of legislation in the task of achieving the goals of the Union and the second concerns the institutional configuration originally established by the Treaty of Rome for the legislative process, and developed since then. This sees the Community legislature as comprising the Commission, the Council of Ministers and the European Parliament, in a form of institutional balance (which has evolved and changed over the years, notably as a result of the evolution of the European Parliament into an elected body with many decision-making powers which match those of the Council). Thus, the White Paper contains within itself a number of potential contradictions, with its focus on the Monnet method, as well as upon the virtues of empowering civil society within networks of governance. 48 Each year, the Commission publishes a Report on European Governance, 49 reviewing progress towards the grand ideas encapsulated in the White Paper. At the micro level, governance reform concerns are reflected in the adoption of processes often associated with the discourse and practice of so-called new public management such as the prior impact assessment of new legislative proposals and the move towards mechanisms of societal steering which rely much less upon the supposedly old-fashioned (hard) diktats of command and control and more upon (soft) coordination and persuasion. Many of these techniques indeed do depart from both tenets of the Monnet method. Despite its failure to engage with many of the features of new governance in the White Paper, the Commission has none the less been forced to embrace the techniques and technologies of new governance in many fields of policy. This has not only been in order to press for more Union action in areas at the margins of existing Union competences, but also in order to challenge blockages in the legislative process at the level of the Council of Ministers. However, not all elements of new governance necessarily mean a departure from hard law, since governance techniques common in the Union such as comitology and the social dialogue, which can give rise to formally binding measures can also be included under European Governance. A White Paper, COM(2001) 428, 25 July For more details see the Commission s website: (visited: 15 June 2005). For commentary on the White Paper see C. Joerges, Y. Mény and J.H.H. Weiler (eds.), Mountain or Molehill? A Critical Appraisal of the Commission White Paper on Governance, Jean Monnet Working Paper No. 6/01, ( visited: 15 June 2005). See most recently, Report on European Governance ( ), SEC(2004) 1153, 22 September

12 this heading. The whole topic of new governance has infused the study of the law of the European Union in recent years, 50 and the practice of new governance has been studied in a number of policy spheres including economic policy, 51 employment policy, 52 social inclusion policy, 53 pensions policy, 54 health care policy, 55 immigration policy, 56 health and safety, 57 and most recently fundamental rights. 58 One of the most characteristic forms of new governance is the so-called open method of coordination. The phrase OMC was first introduced at the Lisbon European Council meeting of Heads of State and Government in 2000, when it was applied specifically to suggesting how the Union could reach the strategic goal of becoming the most competitive and dynamic knowledge-based economy in the world capable of sustainable economic growth with more and better jobs and greater social cohesion. 59 What is involved are systems of governance promoting mutual learning For a general review, see J. Scott and D. Trubek, Mind the Gap: Law and New Approaches to Governance in the EU (2002) 8 European Law Journal, 1-18; G. de Búrca, The constitutional challenge of new governance in the European Union, (2003) 28 European Law Review, D. Hodson and I. Maher, The open method as a new mode of governance: the case of soft economic policy co-ordination (2001) 39 Journal of Common Market Studies, D. Trubek and J. Mosher, New Governance, Employment Policy, and the European Social Model, in J. Zeitlin and D. Trubek (eds.), Governing Work and Welfare in a New Economy. European and American Experiments (Oxford: Oxford University Press, 2003), 33-58; S. Smismans, EU Employment Policy: Decentralisation or Centralisation through the Open Method of Coordination?, in R. Toniatti, F. Palermo and M. Dani (eds), An Ever More Complex Union. The Regional Variable as Missing Link in the EU Constitution, (Baden- Baden: Nomos, 2004), K. Armstrong, Tackling Social Exclusion through OMC: Reshaping the Boundaries of European Governance, in T. Börzel and R. Cichowski (eds.), The State of the European Union. Vol. 6. Law, Politics and Society (Oxford: Oxford University Press, 2003), C. de la Porte and P. Nanz, The OMC a deliberative-democratic mode of governance? The cases of employment and pensions, (2004) 11 Journal of European Public Policy, T. Hervey and J. McHale, Health Law and the European Union, (Cambridge: Cambridge University Press, 2004), A. Caviedes, The open method of co-ordination in immigration policy: a tool for prying open Fortress Europe?, (2004) 11 Journal of European Public Policy, Using the so-called National Contact Points on Integration as a resource, as well as NGOs and other partners within civil society, the Commission has worked in conjunction with the Migration Policy Group (an NGO) to prepare a Handbook on Immigration and Integration for practitioners to draw together benchmarks for national policies and to promote the sharing of ideas. The handbook is available from the website of DG Justice and Home Affairs: (visited 13 June 2005). For an introduction, see the Commission Press Release, IP/04/1349 of 19 November S. Smismans, Towards a New Community Strategy on Health and Safety at Work? Caught in the institutional web of soft procedures, (2003) 19 International Journal of Comparative Labour Law and Industrial Relations, N. Bernard, A New Governance Approach to Economic, Social and Cultural Rights in the EU, in Hervey and Kenner, Economic and Social Rights, ; G. de Búrca, New Modes of Governance and the Protection of Human Rights, in P. Alston and O. de Schutter (eds.), Monitoring Fundamental Rights in the EU. The Contribution of the Fundamental Rights Agency (Oxford: Hart Publishing, 2005), 25-36; S. Smismans, How to be fundamental with soft procedures? The Open Method of Coordination and Fundamental Social Rights, URGE Working Paper 2/2005. For further details, see the Presidency Conclusions, Lisbon European Council, 23 and 24 March 2000, point 37: (The) open method of coordination involves: fixing guidelines for the Union combined with timetables for achieving the goals which they set in the short, 12

13 and closer policy coordination at the national and sub-national level, via benchmarking, exchanges of best practices, periodic monitoring and reporting, and recommendations. Common principles and objectives are established at the Union level but they are not formally binding. There is no single template for open coordination within the Union, but rather a set of family resemblances which link together a number of governance mechanisms linked to the Lisbon objectives. 60 According to Stijn Smismans, 61 these coordination procedures of national policies are called open both because of their assumed openness to the participation of stakeholders, and because of their openness in terms of objectives and instruments, which can more easily be adjusted to changing needs than traditional regulatory policy based on legislative standards. Kenneth Armstrong describes the parent of the family of the various OMCs now under development as being the employment policy coordination strategies constituting the European Employment Strategy, launched at the Luxembourg European Council meeting in November 1997 and formalized in Title VIII of the EC Treaty, as inserted by the Treaty of Amsterdam. 62 Gender mainstreaming has had quite a significant impact in this field, although Jill Rubery has expressed the fear that that the open method of coordination could be just too open, 63 to make it an effective mechanism for securing equality. Equality concerns can end up slipping through the fingers, like sand. There are also doubts about the effectiveness of OMC: 64 does it actually bring about changes in relation to national policies and can it affect, for example, employer behaviour? 65 b) Mainstreaming and the Constitutional Treaty Reflected in both the macro level treaty/constitutional reform processes and many of the meso and micro level governance reform processes has been an increased concern with policy consistency and with ensuring that these policies are infused with the general or transversal principles which the Union, its institutions, and indeed its medium and long terms; establishing, where appropriate, quantitative and qualitative indicators and benchmarks against the best in the world and tailored to the needs of different Member States and sectors as a means of comparing best practice; translating these European guidelines into national and regional policies by setting specific targets and adopting measures, taking into account national and regional differences; periodic monitoring, evaluation and peer review organised as mutual learning processes ( visited 13 June 2003). K. Armstrong, Inclusive Governance? Civil Society and the Open Method of Coordination, in S. Smismans (ed.), Civil Society and Legitimate European Governance, (London: Edward Elgar, 2005, forthcoming); available under the aegis of the ESRC Seminar Series on Implementing the Lisbon Srategy: Policy Co-ordination through Open Methods, (visited 13 June 2005). Smismans, How to be fundamental, 1. Armstrong, Inclusive Governance, 6 (page numbers refer to draft manuscript). J. Rubery, Gender mainstreaming and the open method of coordination: is the open method too open for gender equality policy, Paper prepared for the ESRC Gender Mainstreaming, Leeds, October See for example, C. Radaelli, The Open Method of Coordination: A new governance architecture for the European Union, SIEPS Report, 2003/1. K. Grosser and J. Moon, Gender Mainstreaming and Corporate Social Responsibility: Reporting Workplace Issues, No ICCSR Research Paper Series, 1. 13

14 Member States, are supposed to observe. A number of examples can be found in the existing EC Treaty, including Article 3(2) EC, already referred to in Section 1a). In similar terms, Article 6 EC requires that environmental protection requirements must be integrated into the definition and implementation of the Community policies and activities referred to in Article 3, in particular with a view to promoting sustainable development. These provisions could be said to establish principles of mainstreaming within Union policies, namely the principle that all policies, laws and activities should reflect bring into the mainstream some deeper principle or value. An important innovation of the Constitutional Treaty is that it greatly extends the range of these transversal principles, going beyond principles of gender mainstreaming and the mainstreaming of environmental requirements, which themselves are lifted more or less unchanged from the EC Treaty into the Constitutional Treaty (Articles III-116 CT and III-119 CT). There is a broadly drafted provision requiring the institutions to take into account a widely defined range of requirements related to the social policy objectives articulated in Article I-3 CT (Article III-117 CT). The wording of Article III-118 CT is much stronger as it requires that in defining and implementing its policies the Union should aim at combating discrimination. Even then, however, the words are slightly weaker than those used in relation to gender equality, where the Union is mandated to eliminate inequalities. Article III-118 needs to be viewed against the wider background of the ongoing constitutionalisation of equality in the European Union, 66 especially the significant strengthening of provisions aimed at combating discrimination not only in relation to sex, but also in relation to other grounds, under the Treaty of Amsterdam. This was hinted at in Section 1a), but must now be developed in more detail. Article 13(1) EC, added by the Treaty of Amsterdam, provides: Without prejudice to the other provisions of this Treaty and within the limits of the powers conferred by it upon the Community, the Council, acting unanimously on a proposal from the Commission and after consulting the European Parliament, may take appropriate action to combat discrimination based on sex, racial or ethnic origin, religion or belief, disability, age or sexual orientation. This provision does not encompass a principle of non-discrimination as such certainly not one which binds the Union institutions or the Member States but it does contain a legal basis for action, albeit of a limited nature, as action requires the unanimous consent of the Member States, and involves the European Parliament only marginally in the adoption of legislation, through the consultation process. However, action after the entry into force of the Treaty of Amsterdam in 1999 was surprisingly swift, reflecting a high degree of sensitization at that point in time amongst Member States especially regarding issues related to racism and xenophobia. A number of measures were adopted, notably a Directive establishing a general framework for 66 M. Bell, The Constitutionalisation of the Principle of Gender Equality, S. Millns and M. Mateo Diaz (eds.), The Future of Gender Equality in Europe, (Palgrave: Basingstoke, 2005, forthcoming); Shaw, The EU and Gender Mainstreaming. 14