IGC 1997 : further promotion of rights and social welfare
On June 16th and 17th 1997, at the European Council Summit in Amsterdam, the governments of the fifteen EU member states concluded the Intergovernmental Conference (IGC) which opened last March with the aim of reforming the European institutions and adopting the new (revised) Union Treaty. It also ratified the “Stability and Growth Pact” which will be the framework for transition to a single currency in January 1999. Beyond the adoption of the Euro, the Union had to prepare for a decisive step : its enlargement to the countries which have applied to join, without weakening the EU identity. Its purpose also was to strengthen its means of action to face the challenges of globalisation and the rapid rise in unemployment and poverty. The aim was to promote social and economic action to balance the prevailing monetary policies and democratise the European institutions.
IGC : Equality of rights between men and women as a basic principle of the EU
Given the inadequacy of political will, these promises are far from having been fulfilled. However, the powers of the European Parliament have been considerably extended. And a resolution aiming at promoting employment was adopted as a result of the French Prime Minister, Lionel Jospin’s express request. For the first time, a chapter on employment and a social chapter have been included in the Treaty. The 1991 social protocol providing for workers’ protection has also been integrated. The European Commission thus has at its disposal a clear legal basis to implement job development initiatives.
As far as women are concerned, articles 2 and 3, as amended, now include the promotion of equality of rights between women and men amongst the EU missions, and these can be used to promote further gender progress. This advance is the result of the joint actions of all those involved in this struggle over the past two years : European MPs (both men and women), members of the Commission for Women’s Rights, NGOs… But it is still insufficient : the member states refused to include both equality as a fundamental right and parity as a basic principle of the Union, and they also rejected gender positive action to compensate for discrimination against women. In a general context of decline of women’s status and rights, in the EU and in the world, we are forced to realize that the legal basis indispensable to the promotion of the necessary progress is not yet in place.
The Treaty of Rome is forty years old and for forty years the well-known article 119 has provided the basis for the construction of the principle of equality between women and men in the EU. Seven directives, five recommendations, three decisions, twelve resolutions, the implementation of four action plans, the adoption of codes of practice, considerable jurisprudence from the Court of Justice have helped move from the principle of equal pay to that of equal treatment and equal opportunities in employment, thus positively influencing and accelerating gender progress in each of the member states.
Social cuts and unemployment strike women first
There is however a large gap between the recognition of a right and its implementation, and legal progress achieved in the past is also threatened. In all the member states, poverty mainly strikes women : 70% of the 36 million Europeans living in poverty are women. They make up 55% of the long-term unemployed, 90% of single parents, who live in still greater deprivation, 80% of part-time workers, mostly employed in flexible and insecure jobs not eligible for employment protection and social benefits. Discrimination in employment is still reinforced by structural economic changes and the new jobs created in high-technology. Cultural traditions and preconceived ideas fostered by the archaic principles of a negative, pre-egalitarian conception of gender generate new discriminations for tomorrow in addition to old ones which are still active in everyday life.
Another cause for concern is the Council’s decision to reduce by half the IVth EU Equal Opportunities Programme budget, and to adjourn the IIIrd Poverty Programme
Gender equality : a fundamental right
For the past few years, a biased interpretation of the equal rights principle by the European Court of Justice has worked against women’s interests. In the name of an abstract conception of equality, the Court has challenged national regulations designed to limit, or compensate for, unequal opportunities and discrimination against women linked to their activity of child-bearing and child-raising or the care of disabled persons.
Not very long ago, the highly controversial Kalanke judgment drastically reduced the possibility of recourse to positive measures (Kalanke judgment : The European Court of Justice in Luxembourg issued a judgment (7 october 1995) stipulating that an act of the Bremen Land which provided for positive recruitment of women dot not conform to European legislation. It provided that a woman of equal competence with a man should be given preference in recruitment by the public administration services where women were under-represented in the labour force, as long as the rate of employed women remained lower than 50% and parity in the labour force was not reached. Such a judgment, which was not prompted by juridical necessity, greatly challenged the progress realised in some European countries to promote and implement effective equality between women and men, which cannot be achieved without positive action). The amendment to the 1976 directive on equal pay proposed by the European Commission with the aim of clarifying the scope and implementation of the Kalanke judgment tends in fact to legitimate it. At the request of the Commission for Women’s Rights, the European Parliament accepted that the debate on the proposed amendment would be delayed until after the results of the IGC.
The Treaty is the primary law and princeps of the Union, the foundation of its values and identity. But, as it is, it is widely acknowledged that its legal basis for equality is too narrow : women are not included (written into) as legal subjects, and the equality principle is not conceived of as a fundamental right. Whence the extreme vulnerability of the existing rights, and the regression in the status of women witnessed throughout the Union.
The EP Commission for Women’s Rights would have liked the IGC to include gender equality as one of the fundamental rights in European integration, thus contributing decisively to the democratisation of the Union. We made a top priority of the inclusion in the Treaty of a broad and consistent legal basis for gender equality designed to facilitate its practical and effective implementation
Social and economic injustice done to women
I would also add that I am convinced equality must be rethought in the light of the inherent difference between men and women, the latter being responsible for child-bearing and still, to a large extent, for child care. But this necessary, vital and fruitful positive difference should neither be denied nor used to generate discrimination. Now, instead of the economy calculating the wealth produced by women – through procreation, domestic work, professional occupation – it subtracts this work from their waged labour and their career prospects. The recognition of equality as a fundamental right, the obligation for the EU to adopt affirmative action in all fields, especially in the political field, to enable women to participate in decision-making on equal terms with men, would be a minimal reparation for the injustice done to women and a slender recognition of this debt.
At the end of the Amsterdam Summit, equality between women and men has become one of the duties of the EU, written into articles 2 and 3 of the Treaty. This is the first step in tackling the restrictive scope of article 119 and extending its field of implementation to all EU actions and policies, though it does not go as far as expressly recognising it as a fundamental right. We also recommended that the Treaty should recognise the principle of “parity democracy” developed jointly with the Council of Europe.
Parity : the condition for democracy in politics
Increased participation by women in decision-making is a key factor in the much needed democratisation of European institutions. The European parliament underlined the necessity of such democratisation during the IGC preparatory sessions (Bourlanges-Martin Report, in 1995), and the Recommendation which was unanimously voted by the Council on December 2nd 1996 reasserted it once again.
Only parity can achieve a balanced participation of women and men in the government of human affairs ; it both affirms and extends the recognition of equality. But we have to go further than quantitative equality. It is necessary to achieve qualitative parity, as this offers promising prospects for women and guarantees that their specific interests are represented. While a restrictive conception of equality tends to assimilate women to men, and integrate or incorporate them into politics as it is, qualitative parity goes further : it thinks in terms of a transformation of the public sphere and a regeneration of the body politic because it is heterosexually defined. But neither the Irish or the Dutch Presidency nor the member states retained the proposal, which is most regrettable.
De jure equality versus de facto equality
The proposals for positive action are also totally inadequate. To move from de jure to de facto equality, positive measures are necessary and even vital. Such measures should be adopted without any restriction, and equality of outcome should prevail over strict equality of treatment in all individual cases. But, despite apparent consensus in recognition of the inadequacy of formal equality and despite the support of the European parliament (Dury-Maij-Wegen Report, 5 March 1996), no new measures have been adopted to this end in the revised Treaty, which means significant regression. Thus only the terms already present in the Agreement on social policy have been integrated in article 119 of the Treaty : they merely stipulate the non-prohibition of “specific positive measures designed to facilitate professional activity for the under-represented sex” instead of the suggested wording : “to improve women’s professional and occupational status”. This may lead to overt discrimination against women in the occupational sectors where women outnumber men.
Article 119 now includes the notion of equal pay for “work of equal value”, but our request for additional provisions, covering all the domains of social, political and economic life, with specific targets for access to education and professional training, better working conditions and extended rights to social security benefit has not been retained.
Women suffering gender persecutions are denied the right of asylum.
I also bitterly regret that the joint request – made both by the Commission for Women’s Rights and the Parliament – for the condemnation of sexism (sexual discrimination) on the same grounds as racism has not been retained to date. (France, we must admit, is lagging behind many other EU member states as concerns gender issues. Even the French Constitution does not mention the difference of sexes : it declares that “every human being is entitled to sacred and unalienable rights (…) irrespective of race, religion or belief…”, no reference at all being made to difference of sex. In 1989, I proposed an amendment to the preamble, and in 1993, I wrote to President Mitterrand to suggest the adoption of a new wording : “the French people reaffirms its attachment to the sacred and unalienable rights and to the fundamental liberties and freedoms of the human person, irrespective of gender, race, religion or belief “. But my request remained unanswered. I will however mention a positive result, which makes me particularly happy because of my personal involvement, the adoption by the EU of the fight against the enslavement of human beings, which is now covered by article K1. And a negative one, the refusal to grant the right of asylum to women suffering gender persecutions, which has been the practice in the United States and Canada for several years.
In conclusion, we must say that, despite significant progress in principles, the revised Treaty as planned is far from meeting our demands, particularly as concerns the promotion of effective equality. Many of the priorities we defined – fundamental rights, parity equality, positive measures, obligation of result – have, despite the support of the European Parliament, been at best partly retained, too partially to convert the spiral of regression into one of progress. There is still much left to be done.
this text has been published in
La Lettre européenne de votre député (3rd trimester, 1997, N°3)
January 1997 (English, French)
