Emanuela Lombardo. Universidad de Zaragoza 2

Transcription

1 Integrating or Setting the Agenda? Gender Mainstreaming in the two European Conventions on the Future of the EU and the Charter of Fundamental Rights 1 Emanuela Lombardo Universidad de Zaragoza 2 lombardo@unizar.es Paper for the ECPR Conference, Marburg, September 2003 Section: Gender and Power Panel: International Institutions and Gender Equality First draft, comments welcomed. Please do not cite without permission. Table of contents Introduction...p. 1; 1. Gender mainstreaming in the EU: a strategy to suit any vision?...p. 2; 2. The dilemma of integrating vs. setting the agenda...p. 4; 3. Limits in the definition and application of gender mainstreaming: a literature review...p. 6; 4. Definition and requirements of gender mainstreaming...p. 7; 5. Gender mainstreaming in the European Union...p. 11; 6. The application of gender mainstreaming in Convention I and II...p. 13; 6.1 Requirement n. 1 for gender mainstreaming: a broader concept of gender equality...p. 14; 6.2 Requirement n. 2 for gender mainstreaming: incorporating a gender perspective into the mainstream...p. 18; 6.3 Requirement n. 3 for gender mainstreaming: women s representation in decision-making...p. 24; 6.4 Requirement n. 4 for gender mainstreaming: prioritising gender equality objectives and framing policies of special relevance for women...p. 25; 6.5 Requirement n. 5 for gender mainstreaming: shift in institutional and organisational culture...p. 27; Conclusions...p. 31; Table 1...p. 33; Bibliography...p. 35. Introduction Is gender mainstreaming in European Union (EU) politics applied from an integrationist or an agenda-setting approach? This question is explored with reference to the two European Conventions that have been held in recent years: the first in 1999, concerning the drafting 1 I wish to thank the Spanish Secretaría de Estado de Educación y Universidades for supporting this research at the University of Zaragoza. Many thanks also to all participants in the MAGEEQ Project (Mainstreaming Gender Equality in the European Union) for their thought-provoking discussions and their advice on relevant literature on gender mainstreaming (see ). 2 Área de Ciencia Política, Departamento de Derecho Público, Facultad de Derecho, Universidad de Zaragoza C/Pedro Cerbuna 12, Zaragoza Spain. Tel:

2 of the Charter of Fundamental Rights; and the second, regarding the debate on the Future of the EU that took place in Brussels from February 2002 to July 2003 as a preparation for the forthcoming 2004 Intergovernmental Conference. The procedures used for the drafting of the Charter and the current debate on the Future of the Union are considered more open and democratic methods of deliberation than the usual decision-making process, as proceedings have been made public, the mode of discussion has been more deliberative, and feed-back has been sought from civil society. Can the two conventions be deemed open and democratic when analysed from a gender perspective? One source of evidence for their democratic credentials could be the extent to which they have applied gender mainstreaming, allowing a gender perspective to set the agenda rather than being merely integrated into existing policies, playing a minor role in defining the goals and means of EU policy. This paper examines the Conventions treatment of gender mainstreaming, taking as a starting point five basic requirements that feminist literature has identified as indicators of a proper application of the mainstreaming strategy: a shift towards a broader concept of gender equality, the incorporation of a gender perspective into the mainstream, equal representation of women, the prioritisation of gender objectives and gender-sensitive issues such as social policy, and a shift in institutional and organisational culture that should affect policy process, mechanisms, and actors. The paper explores first the concept of gender mainstreaming (1.), thereafter discussing the integrating or agenda-setting approach (2.), the limits of its definition and application (3.) and the necessary requirements of the strategy (4.). After a brief overview of current EU legislation in the area of gender mainstreaming (5.), it considers the way in which mainstreaming has been applied to Convention I and II (6.). This analysis, developed from section 6.1 to 6.5, focuses on the extent to which the two European constitution-making processes have satisfied the five requirements of gender mainstreaming described above. It is argued that the two constitutional Conventions have applied an integrating rather than an agenda-setting approach to mainstreaming. A more precise definition of the content of gender mainstreaming and an improved monitoring of its implementation are deemed necessary. 1. Gender mainstreaming in the EU: a strategy to suit any vision? Since it opened its way in the European political arena after the UN Fourth World Conference on Women in Beijing 1995, the concept of gender mainstreaming has raised high expectations, though also some doubts, on the part of institutional and academic feminism, and low resistance, though also some misunderstanding, on the part of ordinary politicians. Feminists welcomed it as an opportunity to come out of the ghettoisation of women s policies, due to the disadvantages these had in terms of a limited impact on mainstream policy areas and the definition of broad political objectives, a generally low level of funds, and a difficulty to involve men in taking responsibility for the achievement of gender equality. The prospect of introducing a gender perspective into all EU policies and programmes, at all levels and stages of the policy-making process, in order not only to analyse their effects on women and men before decisions are taken, but also to implement, 2

3 evaluate, and review policies taking gender into account was something that everyone concerned with gender policy wanted to hear. The potential of the strategy seemed enormous. It could promote a shift towards a more holistic approach to gender policy, covering a wider range of areas than the existing family and household ones, and extending responsibility for gender equality to areas, such as finance, defence, and transport, that had remained practically immune to the influence of gendered approaches. It could favour the framing, implementation and evaluation of policies with reference to the analytical category of gender, that would push policymakers to pay attention to the interdependence existing between the female and the male condition and the role one sex plays in determining the opportunities and lifestyles of the other sex. It could lead to a prioritisation of gender equality objectives in the political agenda, for example by giving more relevance to social policy measures and by destining increased financial and human resources to gender issues. It could imply the importing of gendered approaches to policy-making, that, as Jo Shaw argues (2000), would not only lead to the inclusion of substantive policies of a women-friendly nature (such as social and household policy areas), but it would also mean introducing in the policy-style new modes of interaction based on trust, solidarity, care, and interconnection (rather than competition and separation among actors). It could also enhance the representation of women in decision-making processes and institutions. The list of the potential meanings of gender mainstreaming is virtually endless. It did not take long for feminists to realise that the concept of gender mainstreaming was an empty signifier that could be filled with a multitude of meanings (Council of Europe 1998), which meant that the way in which gender mainstreaming could be achieved in practice was far from clear (Mazey 2000). Though promising in principle, the extreme vagueness of the mainstreaming strategy could prove difficult to apply to the reality of European patriarchal socio-political contexts. Governments and politicians, who did not feel as threatened by gender mainstreaming as they had been with positive actions and quotas, talked about the importance of integrating equality in all policies and then acted very little to implement the new strategy. As a result, many of the gender policies implemented in the European countries after 1995 were a mere continuation of previous policies (Behning and Serrano Pascual 2001). In the worst cases, though, gender mainstreaming was interpreted as an indication to replace specific gender policies and structures, in spite of the warnings of the group of experts on mainstreaming of the Council of Europe who made clear that the latter interpretation was a misunderstanding of the concept (Council of Europe 1998). Even in the European Union, that is generally considered one of the most women-friendly polities, mainstreaming was taken at first as a good excuse for both diluting gender expertise (gender experts could cease to be required as everyone suddenly became an expert in gender) and dismantling the infrastructures created to support gender policies. The fact that gender equality was now included in the mainstream policy led to the wrong assumption that special funds and specific programmes for women should now disappear as there was no further need for 3

4 them 3. Scholars in gender studies warned about the possibility that the dilution of gender expertise could be accompanied by a dilution of responsibility in gender policy design and implementation, with the risk that gender mainstreaming could become everyone s responsibility but no-one s job (Gregory 1999). 2. The dilemma of integrating vs. setting the agenda The most striking aspect of the introduction of gender mainstreaming in the EU arena is that European governments and politicians did not perceive the revolutionary potential of gender mainstreaming as feminist did, either because the definition of the concept is so vague that those who are not gender experts cannot grasp all its implications or due to the way in which gender mainstreaming campaigners have framed the strategy in their effort to persuade decision-makers to accept it. With regard to the latter, Pollack and Hafner-Burton (2000), in their study on the application of gender mainstreaming in the European Commission, argue that gender advocates have strategically framed gender mainstreaming so to make it fit with the dominant frame of a given Directorate General (DG), in order to avoid potential resistance, particularly on the part of DGs such as Competition and Science, Research and Development that are more market-oriented and less familiar with gender issues. Gender campaigners adopted the strategy to sell gender mainstreaming to the most reluctant DGs as an effective means to the ends pursued by policy-makers, rather than as an overt challenge to those ends, emphasising the gains in efficiency rather than in equality that would derive from the introduction of gender in their policy areas (Pollack and Hafner-Burton 2000: ). This had the advantage of introducing gender mainstreaming, though in a watered-down version, in departments that would have probably rejected straight away a strategy that did not fit with their policy frames, with the hope that discourses on gender could have a transformative effect on EU policy-makers in the long run. However, the undesired effect of this strategic framing process was the adoption of an integrationist approach to gender mainstreaming on the part of the Commission, that subverts the radically innovative meaning of the strategy, diluting its revolutionary character. Integrationist approaches to gender mainstreaming introduce a gender perspective into existing policy paradigms without questioning them (Jahan 1995). This interpretation treats mainstreaming as a strategy of equality like any other, ignoring the transformative potential it has of existing institutional and organisational processes (Council of Europe 1998), including, among other things, institutional relationships, policy objectives, and working patterns. Jahan introduces another interpretation of gender mainstreaming that is more faithful to its revolutionary potential and calls it agenda-setting approach. The latter implies a 3 This happened in at least two occasions, that are the proposal for abolition of the Committee on Women s Rights in 1998 and the replacement of the NOW (New Opportunities for Women, a specific programme for promoting women s employment) with the EQUAL programme (a general initiative to combat discrimination which does not make any specific reference to women as a discriminated-against group). While the EP s Committee on Women s Rights fortunately is still alive and can apply its expertise to a variety of gender policy issues, the NOW programme has been replaced, depriving women of a specific fund destined to promote their difficult job situation. 4

5 transformation and reorientation of existing policy paradigms, by changing decisionmaking structures and processes, prioritising gender objectives among competing issues, reorienting the mainstream political agenda by rethinking and re-articulating policy ends and means from a gender perspective (Jahan 1995). In this approach women not only become part of the mainstream, they also reorient the nature of the mainstream (Jahan 1995: 13). Feminists face a difficult dilemma with respect to the marketing of gender mainstreaming to EU policy-makers. On one side of the dilemma stands a strategic compromise that, although could achieve the introduction of a watered-down version of gender mainstreaming and could eventually raise a certain gender awareness within mainstream institutional contexts, could nonetheless generate misunderstandings in the framing of gender equality that could affect policy implementation and not in the direction desired by feminist. Moreover, it could run the risk of wasting a great opportunity offered by mainstreaming with regard to the adoption of a more global approach to gender equality and the subversion of existing power relations between the sexes. On the other side of the dilemma stands a more straightforward approach to gender mainstreaming that consists of rendering explicit to decision-makers the revolutionary aims of the mainstreaming strategy in terms of challenging existing policy paradigms and power relations and rethinking the fundamental aims of the EU from a gender perspective. It could strategically be a failure, as most EU policy-makers are likely to reject a commitment to the achievement of gender equality that would determine a substantial change in the usual institutional and organisational processes, in the definition of political priorities, and in the participation of actors in the policy-making process. However, any success in the acceptance of the most radical agenda-setting form of gender mainstreaming on the part of political actors, as slow and difficult as it may be, could in the long run be more effective in achieving equality of outcome than the integrationist approach. This is so because the agenda-setting approach could frame policies in a way that would generate less ambiguities with regard to the changes that are required to arrive at a more equal society than those created by the integrationist form of mainstreaming, forced to address the wrong goals in order to be accepted. As all feminist political dilemmas, the question of how to strategically frame gender mainstreaming in order to reach ordinary policy-makers and at the same time preserve feminist revolutionary project of a society free from domination and discrimination is not easy to solve and should be left open to ongoing debates among scholars and practitioners in the field of gender policy. My concern in this paper is to assess the extent to which an integrationist or an agenda-setting approach to gender mainstreaming has been adopted both in the Convention that drafted the Charter of Fundamental Rights and the one that produced the draft Constitutional Treaty. Before engaging with this analysis, it is necessary to mention the limits of existing definitions of gender mainstreaming, the definition adopted by the Council of Europe and the main requirements of mainstreaming, as well as the current European legislation on the matter. 5

6 3. Limits in the definition and application of gender mainstreaming: a literature review If policy-makers have not perceived the revolutionary character of gender mainstreaming and have preferred to follow a more integrationist approach (when not directly getting rid of gender structures by mistake ), it cannot merely be the fault of EU gender advocates who strive to find the most adequate strategies that will allow gender mainstreaming to be accepted in the European patriarchal political contexts. The existing vague definition of gender mainstreaming is likely to have facilitated the creation of distortions both in the interpretation of the concept and in the implementation of policy measures. This vagueness has facilitated inactivity or inadequate provisions on mainstreaming of those policy-makers who lacked sufficient political will to take gender equality into serious account. As most gender policy literature acknowledge, a more precise definition of gender mainstreaming is necessary to minimise misunderstandings of the concept and set the conditions for effective policy implementation. The state of the art in research on gender mainstreaming produced by Mieke Verloo for the MAGEEQ project (Verloo 2002), after reviewing some of the main characteristics of existing studies in the area, concludes that a definition of gender mainstreaming has not been sufficiently elaborated and that the concept is still inadequately understood (Rees 1998). Although scholars in the field believe that the meaning of gender mainstreaming should be clarified, there exist only a few reflective works on the issue, such as Rees (1998) and the Final Report of the group of Specialists on Gender Mainstreaming of the Council of Europe (1998). Most studies merely describe initiatives for implementing gender mainstreaming and collect examples of good practices. Due to the lack of a general comprehension of gender mainstreaming in the European Member States, the concept is applied in different ways across the EU according to different normative ideas concerning the goal of gender equality (Behning and Serrano Pascual 2001) and the different national socio-political contexts that may favour or hinder implementation (Nott, Beveridge and Stephen 2000). The lack of a clear definition of the concept, however, is not the only limitation to a more effective application of gender mainstreaming, as works focusing on gender mainstreaming tools point out. Studies on Gender Impact Assessment, a method that informs decision-makers about potential implications of a given policy proposal for gender equality by identifying ex ante its positive and negative consequences for women and men (Verloo 1996; Rubery and Fagan 2000), detect a lack of expertise in gender mainstreaming evaluation and a poor attention to other structural inequalities (class, sexual orientation, race, ethnicity, age, physical ability). Gender mainstreaming is often described in the studies revised by the MAGEEQ report (Verloo 2002) as a case of policy adaptation moved by both the need to overcome the limits of existing policies (Mazey 2000) and the strategic choice of gender advocates to frame gender mainstreaming in accordance with the goals and policy frames of EU decisionmakers, i.e. market efficiency rather than equality of outcome (Hafner-Burton & Pollack 2000). The limitation of the strategy to labour market s objectives is also dependent on the 6

7 need to adapt gender mainstreaming to the EU policy-making context. Braithwaite s study on mainstreaming in the Structural Funds argues that the lack of a precise definition of objectives on how to reduce gender inequality facilitates the incorporation of the goal of gender equality into the usual labour market policy goals, i.e. employment and economic growth (1999). Considering the difficulties that gender mainstreaming is facing in being properly understood and implemented, Verloo s report for the Council of Europe (1999) rightly argues that an articulation of gender equality as an objective per se is missing from the EU policy context and that debates on what gender equality should be are necessary. Verloo s study also complains about the lack of consultation of civil society as part of the application of gender mainstreaming in the Member States. Finally, it denounces the meager number of works on gender mainstreaming in Central and Eastern Europe (Verloo 1999 and Bretherton 2001 are the only exceptions) and a main accent on North European countries. The existing uncertainties in the literature on gender mainstreaming with respect to both its definition and its implementation are translated in the language of policy-makers as a lack of clear objectives to achieve in order to comply with the new strategy. As a result, most of the transformative potential of gender mainstreaming is lost. 4. Definition and requirements of gender mainstreaming In spite of the lack of a precise conceptualisation of both a common understanding and a more reflective articulation of gender mainstreaming in existing literature that the MAGEEQ Report has highlighted, a definition of the strategy to use as a starting point for further analysis has been provided by the group of experts of the Council of Europe (1998). In the latter gender mainstreaming is described as: the (re)organisation, improvement, development and evaluation of policy processes, so that a gender equality perspective is incorporated in all policies at all levels and at all stages, by the actors normally involved in policy-making (Council of Europe 1998: 15). The definition and interpretation of gender mainstreaming by the Council of Europe and a number of reflective studies on the requirements necessary to apply gender mainstreaming (Jahan 1995, Verloo 1999, Hafner-Burton 2000, Beveridge, Nott and Stephen 2000, Shaw 2000) provide us a number of criteria to recognise gender mainstreaming when we see it. Drawing on this literature, I include five indicators of a shift in policy concepts and processes which could tell that a gender mainstreaming strategy has been applied in the European institutional context according to the agenda-setting approach. They will be my reference point to explore the extent to which gender mainstreaming has been included in the political agenda of the deliberative institution that drafted the Charter of Fundamental Rights (Convention I) and of the institutional body that has recently drafted the Constitutional Treaty (Convention II). The following five indicators should be visible if gender mainstreaming has been applied properly (the greater number of conditions present the more it shows that mainstreaming has been put into practice): 1. Shift in concepts: a broader concept of gender equality is employed. This includes not only formal legal equality but also equality de facto. The latter requires 7

8 the adoption of a whole range of different strategies, from equal opportunities to positive actions, with a view to achieve substantive equality. It requires a gender perspective and not a focus limited to women s issues (Council of Europe 1998: 169). This means, for example, that changes in men s lifestyles are necessary as the role of one sex significantly affects the opportunities and lifestyles of the other. This broader concept implies the adoption of a more holistic approach to gender policy, that explicitly targets patriarchy by tackling the multiple interconnected causes which create an unequal relation between the sexes to the disadvantage of women in the areas of family, paid work, politics, sexuality, culture, and male violence (Walby 1990). The translation of this approach to policy-making would require the extension of EU gender legislation to cover with binding provisions all areas not only within but also beyond the labour market. 2. Incorporation of a gender perspective into the mainstream political agenda, the mainstream consisting of the directions, organisations and ideas which make decisions about the policy and resources regarding general or specific policies such as, for example, education or on transport. Therefore, mainstreaming means that gender equality issues would have to be dealt with within work on education, or on transport (Council of Europe 1998). Reference to gender issues and considerations regarding the extent to which a given provision could affect women and men in different ways (and how this could be limited) should be found in all policy areas. Moreover, to be able to claim that a more agenda-setting approach has been employed, there must be evidence that the mainstream political agenda has been reoriented by rethinking and re-articulating policy ends and means from a gender perspective (Jahan 1995). 3. Inclusion and participation of women in decision-making bodies and processes. Gender mainstreaming requires the achievement of parity democracy, that is an equal representation of women and men in decision-making institutions. A growing number of EU provisions support a gender balance in the participation of women and men in the decision-making process and in committees and expert groups of the Commission 4. Commission Decision 2000/407 recommends that the participation of women should be at least of 40%. 4. Prioritising gender equality objectives and framing specific policies of special relevance for women (e.g. social and family policy) with the aim of achieving substantive equality. There should be evidence that gender equality objectives and 4 Council Recommendation 96/694 on the balanced participation of women and men in the decision-making process (OJ (1996) L 319/11); EP and Council Decision 182/1999 OJ (1999) L 26/1; Decision 2000/407 concerning a balanced participation of men and women in the committees and expert groups of the Commission OJ (2000) L 154/34; Commission Communication to the member states on the Decision concerning a balanced participation of men and women in the committees and expert groups of the Commission OJ (2000) C 203/4; Commission Communication on Incorporating equal opportunities for women and men into all Community policies and activities (COM(96)67final); Council Resolution of 29 June 2000 on the balanced participation on men and women in family and working life OJ C 218; EP Opinion of 24 May 1996 OJ C 166 and EP Resolution of 2 March 2000 OJ C 346 on women s representation in decision-making. 8

9 policies that are of special concern for women have been given relevance in the EU among competing objectives (in terms of financial and human resources, type of measures with respect for example to binding/non-binding legislation, direct effect 5, voting systems required to take decisions, i.e. unanimity 6 and European Parliament [EP] consultation 7 vs. qualified majority voting 8 [QMV] and EP co-decision 9, etc.). These policies should be framed according to the broader concept of gender equality described in point Shift in institutional and organisational cultures. This change involves three aspects: a) policy process; b) policy mechanisms; c) policy actors. a) A shift in policy process means that the policy process is reorganised so that the actors usually involved take a gender perspective into account, and gender equality as a goal is reached (Council of Europe 1998: 166). As the group of experts on mainstreaming of the Council of Europe clarifies, this can mean that the policy process is reorganised so that ordinary actors know how to incorporate a gender 5 Direct effect means that a right is enforceable by individuals in domestic courts both against the state and against private employers. 6 The term "unanimity" refers to the requirement for all the Member States meeting in the Council to be in agreement before a proposal can be adopted. Since the Single European Act, the unanimity requirement has applied in a much more limited area than before. In the context of the first pillar, voting by qualified majority is now the rule. The second and third pillars, however, still operate largely according to the intergovernmental method and the unanimity requirement. As some decisions are still taken by unanimity, and as this will become more difficult in an enlarged Europe, the Treaty of Nice has extended the scope of qualified majority voting to other areas and other provisions of Community policy and to a number of policies under the second and third pillars. See 7 The consultation procedure enables the European Parliament to give its opinion on a proposal from the Commission. In the cases laid down by the Treaty, the Council must consult the European Parliament before voting on the Commission proposal and take its views into account. However, it is not bound by the Parliament's position but only by the obligation to consult it. The Parliament should be consulted again if the Council deviates too far from the initial proposal. The powers of the Parliament are fairly limited under this procedure, in so far as it can only hope that the Commission takes its amendments into account in an amended proposal. See 8 A qualified majority is the number of votes required in the Council for a decision to be adopted when issues are being debated on the basis of Article 205(2) of the EC Treaty (former Article 148(2)). Until 1 November 2004, the date of the entry into force of the provisions in the Nice Treaty on Council decision-making, the threshold for the qualified majority is set at 62 votes out of 87 (71%), and Member States' votes are weighted on the basis of their population and corrected in favour of less-populated countries(...). Following the 2000 IGC and the Nice Treaty, the number of votes allocated to each Member State has been reweighted, in particular for those States with larger populations, so that the legitimacy of the Council's decisions can be safeguarded in terms of their demographic representativeness. Qualified majority voting is more effective for taking decisions than unanimous voting (that includes a veto risk). See 9 The codecision procedure (Article 251 of the EC Treaty, formerly Article 189b) (...) gives the European Parliament the power to adopt instruments jointly with the Council. The procedure comprises one, two or three readings. It has the effect of increasing contacts between the Parliament and the Council, the colegislators, and with the European Commission. In practice, it has strengthened the Parliament's legislative powers in the following fields: the free movement of workers, right of establishment, services, the internal market, education (incentive measures), health (incentive measures), consumer policy, trans-european networks (guidelines), environment (general action programme), culture (incentive measures) and research (framework programme). See 9

10 perspective or that gender expertise is included as a normal requirement for policy-makers (Council of Europe 1998: 165). The importing of gendered approaches into the analysis of EU law (Shaw 2000) should be visible at least at three levels: 1. Change of perspective in institutional behaviours so that the latter become based upon a set of assumptions which envision relationships between institutional settings and individual actors which are structured by connexity, associability and trust, rather than by choice, preference formation and maximisation, and the conceptual separation, even cleavage, between actor and institution (Shaw 2000: 414). 2. Change of method, by asking the woman question, as Feminist Standpoint Theory 10 recommends (Harding 1991), rather than the man question masqueraded as the person question (Shaw 2000: 414), so as to include the interests and perspectives of both sexes in the formulation and application of law. 3. Change in substantive policies, both in the way specified in point 4 and by engaging with embodied difference within law, legal institutions and legal processes (Shaw 2000: 413). b) A shift in policy mechanisms involves three elements: 1. the adoption of new approaches to policy-making that would emphasise horizontal cooperation on gender issues across all policy areas, levels, and departments; 2. the use of appropriate policy tools and techniques that would integrate the gender variable in all policies, monitor and evaluate the latter from a gender equality perspective (e.g. gender impact assessment, an analysis ex ante of the consequences that a given policy could have on gender in order to reorient or moderate the proposed measure if it results that this would negatively affect gender equality); 3. the opening of new, and reinforcing of existing, channels of consultation of and cooperation with civil society actors. c) Policy actors participating in the policy-making process broaden as to include, apart from ordinary policy-makers and public administration, gender policy experts and civil society actors (NGOs, interest groups, associations, social movements and representatives of workers and employers). To verify the extent to which gender mainstreaming has been included in the agenda of the two Conventions and the type of approach that has been adopted to apply it, i.e. integrationist or agenda-setting, some or all of the five elements described above must be observed. The following section will provide a brief summary of existing EU provisions on gender mainstreaming that will enable us both to verify the extent to which this body of law was applied in the experience of the two conventions and to detect changes with 10 The aim of this feminist epistemology is to introduce women s perspectives in all the areas from which female subjects have traditionally been excluded. The background idea of Feminist Standpoint Theory is that socially accepted knowledge in western societies has never been created by asking questions from women s point of view. Therefore, the introduction of women s perspectives into the dominant knowledge may offer a less partial and less distorted image of reality than the one hitherto presented to us by natural and social sciences. The goal of Feminist Standpoint Theory is to tell the story from the perspective of those who have not participated either in the project and the direction of society or in the production of knowledge (knowledge, it is argued, has been constructed by the dominant groups). Harding

11 respect to the existing acquis communautaire on mainstreaming that were introduced in the Charter and the Constitutional Treaty. 5. Gender mainstreaming in the European Union When the first Convention started its work on the Charter in 1999, gender mainstreaming was already part of the acquis communautaire with two Articles in the Treaty, two Action Programmes and a growing number of soft law provisions. The Treaty of Amsterdam (ToA) of 1997 recognised a prominent role to gender mainstreaming by introducing a new article 2 ToA establishing the promotion of equality between men and women as a task of the Community, and a new Article 3.2 ToA stating that in all its activities the Community shall aim to eliminate inequalities, and to promote equality, between men and women. Gender mainstreaming was also reflected in the Fourth and Fifth Commission s Action Programmes for Equal Opportunities between women and men ( and ). Interestingly, the term gender has appeared in recent years in the official acts of the EU, namely in the Fifth Action Programme for Gender Equality ( ) 11, suggesting that a shift is taking place from an equal opportunities approach to a more global and comprehensive one (at least at the level of language). Soft legislation on gender mainstreaming includes, among other documents, a Commission Communication 96/67 on Incorporating equal opportunities for women and men into all Community policies and activities and a Council Recommendation 96/694 on the balanced participation of women and men in the decision-making process that attempts to tackle the severe underrepresentation of women in decision-making bodies and committees (see footnote 4 for reference to other EU provisions on improving the political participation of women). The European Commission claims to have developed its own method for achieving gender mainstreaming that includes measures such as the dual approach (i.e. gender mainstreaming and specific actions), gender impact assessment and gender proofing, a mobilisation of all Commission services, anchoring responsibility, training and awareness raising among key personnel, monitoring, bench-marking and break down of data and statistics by sex 12. It has set up three different structures to promote gender equality issues, that are the Group of Commissioners on equal opportunities, the Inter-service group on gender equality, and the Advisory committee on equal opportunities for women and men. By involving different actors in the Commission, these structures should ensure the existence of a wider responsibility for gender issues in areas where it previously did not exist. The European Parliament has been active in monitoring the application of the mainstreaming strategy. In autumn 1999 the Committee on Women s Rights has began an initiative to monitor the commitment to gender mainstreaming of the nominee Commissioners through questionnaires and Hearings. In spite of the meager responses to the monitoring, the Committee on Women s Rights is determined to follow-up on their commitment to gender mainstreaming by requiring each Commissioner to draw a report on 11 COM(2000) 335 final. 12 See 11

12 the state of affairs and on implementing what they have committed to 13. Initiatives like this, which the principle of mainstreaming justifies, are designed to improve the accountability and transparency of political commitments in the field of gender policy by measuring progress in mainstreaming. The Fifth Framework Programme for equal opportunities between women and men ( ) is another advance in this direction as it includes five strategic objectives which should be measured and evaluated. On the whole, it appears that, at least among those concerned with gender policy issues, there is a growing trend for making decision-makers more accountable for mainstreaming through the use of monitoring and evaluation tools. Apart from the Articles on gender mainstreaming, the acquis communautaire on gender equality also includes Article 141 TEU (Treaty of the European Union) on the principle of equal pay for male and female workers for equal work or work of equal value 14, that in its paragraph encourages the Council to adopt measures to ensure the application of the principle of equal opportunities and equal treatment of men and women in matters of employment and occupation. Moreover, paragraph allows Member States to introduce positive actions, defined as specific advantages in order to make it easier for the under-represented sex to pursue a vocational activity or to prevent or compensate for disadvantages in professional careers. The aim of these measures is that of ensuring full equality in practice between men and women in working life. Finally, a non discrimination provision was introduced in the Amsterdam Treaty with Article 13. This allows the Council to take action to combat discrimination based on sex, racial or ethnic origin, religion or belief, disability, age or sexual orientation. Article 13, however, has no direct effect (unlike the non discrimination clause on ground of nationality included in Article 6) and requires unanimity in the Council and consultation of the European Parliament for measures to be adopted (again unlike Article 6 that allows for co-decision and qualified majority voting in the Council) 15. As this brief account of the EU initiatives to implement gender mainstreaming clarifies, both Convention I and II could draw on an existing body of legislation, practices, and structures aimed at the promotion of gender mainstreaming (and gender equality in general) at the time when their deliberations begun respectively in 1999 for drafting the EU Charter of Fundamental Rights and in 2002 for forging a European Constitutional Treaty. 13 See Follow-up on Gender Mainstreaming commitments in Public Hearings with Commissioners, PE , Meeting of the Committee on Women s Rights and Equal Opportunities, 22 March Article 141 TEU is directly effective. 15 The EU gender equality legislation also includes a number of Directives in the fields of equal pay (Directive 75/117/EEC that broadens the criterion of equal work to cover also work of equal value), equal treatment at work (Directive 76/207 EEC on equal treatment in employment related areas and its most recent version Directive 2002/73/EC, Directive 97/80 EC on the burden of proof, Directive 96/34/EC on the framework agreement on parental leave, Directive 92/85/EEC on health and safety of pregnant workers, women workers who have recently given birth and women who are breast-feeding), and equal treatment in social security (Directive 79/7/EEC on statutory social security and Directive 86/378/EEC that extends the principle of equal treatment also to private or occupational social security schemes, amended by Directive 96/97/EC). EU Soft legislation on gender equality includes a wide range of provisions (Recommendations, Decisions, Communications, Programmes, etc.) in areas that extend also beyond employment. 12

13 6. The application of gender mainstreaming in Convention I and II Both Convention I and II have opened a new procedure in the EU constitution-making process that consist of a deliberative stage preparing the ground for the decision-making phase that takes place in the EU Intergovernmental Conferences (IGC) 16. The task of Convention I ( ) was to draft a list of fundamental rights of the Union that the Nice IGC decided not to include in the text of the Treaty, thus leaving it as a non binding document. The Laeken mandate for Convention II (February 2002-July 2003) was much broader than that of Convention I. It asked Convention II to formulate proposals on the following three broad questions (the Laeken mandate included 64 questions, mainly focused on institutional reforms): how to get citizens closer to the European project and institutions, how to structure the European political space and politics in an enlarged Union, and how to transform the Union in a stabilising factor and a model in the new world order. Deliberations of the Convention II led to the formulation of a Draft Constitutional Treaty for Europe. The IGC that will decide on the text produced by Convention II will start its works in Autumn 2003 and end in the year The Convention method has been welcomed as a more democratic alternative to traditional diplomatic negotiations based on bargaining and on a strong defence of national interests. This is essentially due to the relative openness and transparency of deliberations (documents of the plenary and working groups are public and accessible on the world wide web, although Presidium debates and work are not public) and to a more deliberative mode of discussion based on achieving consensus, that stimulates Convention members to persuade other participants in the debate to accept a given proposal by providing arguments and reasons in favour of their position 17. This forces participants to go beyond the mere defence of their national interests through mechanisms of strategic bargaining and negotiating and to rely on the force of the better and stronger argument to justify and defend their standpoint (Eriksen and Fossum 2000). The Convention process has also been more open to civil society s contributions than traditional IGCs (see section on Requirement n. 5 for gender mainstreaming: shift in institutional and organisational culture points b) and c)). The more democratic character of the Convention method of EU institutional reform compared with classical IGCs would lead us to suppose that the last two constitutionmaking processes would also be more progressive as concerns the application of gender mainstreaming to the process and output of their deliberations (as one would expect them to be more progressive in relation to gender equality in general) than traditional reforms of the Treaty. The following part of the paper deals with the application of gender mainstreaming in the product of the two Conventions on the basis of the five requirements of 16 An Intergovernmental Conference (IGC) is the process by which the Treaty containing the law of the European Union is periodically changed through a joint meeting of Heads of Governments and States of the Member States and the President of the Commission. IGCs celebrated in the last decade include the IGC-1991 (that produced the Maastricht Treaty or TEU), the IGC (that produced the Amsterdam Treaty), and the IGC-2000 (that produced the Nice Treaty). The next IGC will base its work on the output of the Convention on the Future of Europe, that is the Draft Constitutional Treaty. 17 A more deliberative style of debate was also favoured by the organisational autonomy enjoyed by members of the Convention. 13

14 mainstreaming that feminist literature has helped me to draw (see section 4. Definition and requirements of gender mainstreaming ). A summary of the main gender legislation included in Table 1 (see p. 34 ) will help the reader to compare provisions on gender equality in the Treaty of European Union, the Charter, and the Draft Constitutional Treaty. 6.1 Requirement n. 1 for gender mainstreaming: a broader concept of gender equality The first indicator of gender mainstreaming that feminist literature has highlighted is a shift towards a broader concept of gender equality as described in point 1 of the section on Definition and requirements of gender mainstreaming. Let us see to what extent such a shift can be found in the result of the two conventions. Gender equality in the Charter. The Charter of Fundamental Rights includes equality among the values of the Union in the Preamble and explicitly refers to equality between women and men and non-discrimination on grounds of sex (among other reasons) respectively in Article 23 and 21.1, while it also mentions the sharing of work and family responsibilities in Article 33. In the same way as it opens opportunities for a broader concept of gender equality, the ambiguous framing of Article 23 also raises doubts concerning the real scope of equality provided by the Charter. Its first paragraph states: equality between women and men must be ensured in all areas, including employment, work and pay. The extension of gender equality to all areas, as affirmed in the first sentence, represents a progress compared to an acquis communautaire mainly centred on equality at work. However, the second sentence including employment, work and pay reorients the application of equality to the usual employment-related areas of EU gender legislation. The way in which judges will interpret the Article will be determinant in clarifying the ambiguity of the provision (Advocates Generals in the European Court of Justice have already used the Charter in their interpretations) and in redefining the extension of the concept of gender equality in the Charter. In the best of cases the interpretation of Article 23 would apply the concept of gender equality not only to the area of employment but also to family, politics, sexuality, culture and violence, that are all the areas of Patriarchy in which we encounter gender discrimination (Walby 1990). This would be a considerable shift towards a broader concept of equality and as a result towards a more serious consideration of gender mainstreaming. It is possible, though, that the principle of equality included in the Charter will apply to the areas that are specified in Article 23 (employment, work and pay) rather than to all areas that are not specified in the text. The ambiguous and general framing of the provision does not allow to foresee the implications of this concept of equality for progress in gender equality in the European context. If the vagueness of Article 23 makes it difficult to assess the extent to which it represents progress towards a broader definition of equality or maintenance of the status quo, its mismatch with the acquis communautaire on gender equality reveals some of the limits of the Charter s concept of equality. Unlike Article 141 TEU on equal pay, Article 23 CFR (Charter of Fundamental Rights) is not directly effective, it is a general statement of intent rather than a rights conferring measure (León et al. 2003: 13) and does not include any positive obligation to promote gender equality as do Articles 2 and 3.2 of the EC Treaty (Mc Crudden 2003). As regards the content of the measure, reference to positive actions included in Article 23 falls short of the acquis in two senses. First, the Charter treats 14

15 positive measures as a derogation from the principle of equality rather than as means to achieve substantive equality, as Article 141 TEU prescribes in the first sentence: With a view to ensuring full equality in practice between men and women in working life.... Second, while Article 141 TEU allows for positive actions both to make it easier for the under-represented sex to pursue a vocational activity and to prevent or compensate for disadvantages in professional careers, Article 23.2 limits the possibility to adopt positive actions only when one sex is under-represented and not as a preventive or compensatory mechanism even when no under-representation of one sex is evident (León et al. 2003: 13) 18. McCrudden (2003) believes that even Article 33 on the reconciliation of family and professional life fails to match the acquis represented by Directive 76/207 on equal treatment at work and Directive 92/85 on pregnant workers and Directive 96/34 on parental leave and the ECJ law cases on the matter. He argues that Article 33 CFR, in particular when read together with Article 34 CFR [Charter of Fundamental Rights], refers only to paid maternity leave, rather than paid parental or paternity leave (McCrudden 2003: 7) Further reference to gender equality can be found in Article 21.1 CFR that prohibits discrimination on a wide number of grounds among which sex. The list of types of discrimination prohibited in the Charter is wider than that of Article 13 TEU, as it includes 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. Despite this progress, decisions based on Article 21.1 CFR are subject to unanimity (rather than qualified majority voting) in Council and consultation (rather than co-decision) of the European Parliament, which means that agreement on a given proposal is more difficult to achieve and that the Parliament has a weaker role in the decision-making process. These are the current voting requirements for Article 13 TEU that have been maintained identical in the Draft Constitutional Treaty (Article III-8). Demands to create in the Constitutional Treaty a separate Article on nondiscrimination on grounds of gender (or sex) coming from the European Parliament s Committee on Women s Rights, the European Women s Lobby, gender experts and civil society remained unanswered. Claims in favour of a separate non-discrimination clause on gender that would resemble Article 12 TEU (Article III-7 Constitutional Treaty) on nondiscrimination on grounds of nationality (with decisions taken by QMV and co-decision) are based on the argument that women are not subjects like any other marginalised group referred to in Article 21.1 CFR. As clarified in the concept of multiple discrimination developed by gender theory at least two decades ago 19, women are exposed to discrimination first due to their gender and then also due to other reasons such as their race, sexual orientation, religion, ethnic origin, physical ability etc. To tackle the double or multiple discrimination suffered by women, a gender dimension should be integrated in all anti-discrimination measures. To this aim, the prohibition of discrimination on grounds of gender (or sex) should be included in a separate provision in its own right. 18 For further explanations on the mismatch between Article 23 of the Charter and Article 141 EC see McCrudden (2003) and León, Mateo, Millns (2003). 19 See Anthias and Yuval-Davis 1990; Harris 1991; Hooks 1981; Lorde