Abstract
Many different versions of equality have been proposed and defended, but they can be grouped according to the emphasis that they give to three different perspectives: historical, economic, and remedial. The remedial perspective expands on the historical perspective to consider the continuing effects of past discrimination. This perspective is most frequently invoked to justify programs of affirmative action. Here we focus on the programs of affirmative action in Spain in the previous years within the legal framework of the European Union. It is examined in this study whether affirmative action measures, particularly quotas, violate the principle of equality. This article aims to contribute to the Europe-wide debate on the converging concepts of equality.
This article has been elaborated in the framework of the
research Project “Principio de no discriminación y nuevos
derechos” (DER2011-26903).
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Of course, it is possible to have different views of merit and of the related positive conception of equality, and to endorse different institutional arrangements to ensure that employees are selected according to merit. Merit might be interpreted more broadly, as it has been, for instance, by John Rawls, who would require “full equality of opportunity”: providing individuals not only with “careers open to talents”, but also with the same opportunity to develop their talents, regardless of differences in social and class background (Rawls 1971).
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Council Directive 76/207/EEC of 9 February 1976 on the implementation of the principle of equal treatment for men and women as regards access to employment, vocational training and promotion, and working conditions.
Art. 1:
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The purpose of this Directive is to put into effect in the Member States the principle of equal treatment for men and women as regards access to employment, including promotion, and to vocational training and as regards working conditions and, on the conditions referred to in paragraph 2, social security. This principle is hereinafter referred to as “the principle of equal treatment.”
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With a view to ensuring the progressive implementation of the principle of equal treatment in matters of social security, the Council, acting on a proposal from the Commission, will adopt provisions defining its substance, its scope and the arrangements for its application.
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Directive 2002/73/EC of the European Parliament and of the Council of 23 September 2002 amending Council Directive 76/207/EEC on the implementation of the principle of equal treatment for men and women as regards access to employment, vocational training and promotion, and working conditions. Vid. Official Journal L 269, 05/10/2002, pp. 0015–0020.
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International Convention on the Elimination of All Forms of Racial Discrimination. Adopted and opened for signature and ratification by General Assembly resolution 2106 (XX) of 21 December 1965 entry into force 4 January 1969, in accordance with Article 19.
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Article 2.2: “States Parties shall, when the circumstances so warrant, take, in the social, economic, cultural and other fields, special and concrete measures to ensure the adequate development and protection of certain racial groups or individuals belonging to them, for the purpose of guaranteeing them the full and equal enjoyment of human rights and fundamental freedoms. These measures shall in no case entail as a consequence the maintenance of unequal or separate rights for different racial groups after the objectives for which they were taken have been achieved”.
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According to Committee for the Elimination of Racial Discrimination (CERD) doctrine, the special measures or affirmative action measures concept is based on the principle that laws, policies and practices that are adopted and applied for meeting the obligations established in the Convention should be complemented, when circumstances so dictate, by the adoption of temporary special measures aimed at guaranteeing that underprivileged groups can fully and equally enjoy their human rights and fundamental liberties. Special measures form part of the set of provisions established in the Convention that seek to eliminate racial discrimination.
In General Recommendation No. XXXII, CERD expressed its concern at the fact that affirmative action measures often tend to get confused with the constitutional rights of groups that are traditionally discriminated against, and it pointed out that the obligation to adopt special measures differs from the general positive obligation that states party to the Convention have of guaranteeing the human rights and fundamental liberties of persons and groups under their jurisdiction in a non-discriminatory manner; this is a general obligation which derives from the provisions established in the Convention taken as a whole, and is one they all have, the Committee stated.
In line with international case law and doctrine, CERD stresses the temporary nature of special measures, and clearly states that this means there is a need for a continuous follow-up system on application and results which uses quantitative or qualitative evaluation methods, as the case might be. The Committee thus tells states party to the Convention that they should provide information in their periodic reports about the following matters: the terminology applied to the special measures, as understood in the Convention; the justification for the special measures being adopted, including relevant data and statistics and information about the general situation the beneficiaries find themselves in; a brief description of how the disparities that need remedying arose and the expected results of applying the measures; who the beneficiaries of the affirmative action will be; the series of consultations which led to the measures being adopted, including those with the beneficiaries and civilian society in general; the nature of the measures and how they promote progress, development and protection for the groups and individuals they apply to; areas of action or sectors where the special measures have been adopted, and the institutions responsible for applying the measures; the mechanisms that exist for carrying out follow-up on and evaluation of the measures and the reasons why these mechanisms are considered adequate, together with involvement of the beneficiaries in the institutions applying the measures; and provisional results of application, plans for adopting new measures and the justification therefore, and information about the reasons why measures have not been adopted in view of the situations which seemed to justify their being adopted.
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On 18 December 1979, the Convention on the Elimination of All Forms of Discrimination against Women was adopted by the United Nations General Assembly. It entered into force as an international treaty on 3 September 1981 after the twentieth country had ratified it. By the tenth anniversary of the Convention in 1989, almost one hundred nations have agreed to be bound by its provisions.
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The Framework Convention for the Protection of National Minorities, drawn up within the Council of Europe by Ad Hoc Committee for the Protection of National Minorities (CAHMIN) under the authority of the Committee of Ministers, was adopted by the Committee of Ministers of the Council of Europe on 10 November 1994 and opened for signature by the member States of the Council of Europe on 1 February 1995. Non-member States may also be invited by the Committee of Ministers to become Party to this instrument.
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In my opinion, it could be useful to recall the Resolution CM/ResCMN(2013)4 on the implementation of the Framework Convention for the Protection of National Minorities by Spain, adopted by the Committee of Ministers on 10 July 2013 at the 1176th meeting of the Ministers’ Deputies. The Committee of Ministers, under the terms of Articles 24–26 of the Framework Convention for the Protection of National Minorities (hereinafter referred to as “the Framework Convention”) adopted the following conclusions with respect to Spain: “Spain has taken important steps to develop its legal and institutional framework against discrimination. A comprehensive Bill on Equal Treatment and Non-Discrimination has been elaborated, in consultation with civil society organisations which, if adopted, would widen protection against discrimination and remedy current shortcomings of the legislation in force.
The Council for the Promotion of Equal Treatment of all Persons without Discrimination on grounds of Racial or Ethnic Origin was established in 2009 as an independent body in charge of monitoring the situation in the field of discrimination and raising awareness of these issues in society as a whole. The Council established a Network of assistance to victims of discrimination, operating at the local level with the support of various NGOs.
A Comprehensive Strategy against Racism, Racial Discrimination, Xenophobia and other Related Forms of Intolerance was adopted at the end of 2011. Special Prosecutors against discrimination and hate crime have been appointed at regional and State levels. The Spanish Observatory of Racism and Xenophobia continues to carry out research and actions to raise public awareness of these problems. The authorities have undertaken substantial work to improve the management of the various challenges arising out of cultural and religious diversity, notably through the “Observatory of Religious Pluralism”. Policies to support the integration of immigrants in society and promote tolerance and intercultural dialogue continue to be implemented.…
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Adopts the following recommendations in respect of Spain:
The authorities are invited to take the following measures to improve further the implementation of the Framework Convention:
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Take more resolute measures to implement effectively the policies aimed at improving the situation and the integration of the Roma, in close co-operation with Roma representatives; ensure that these policies are adequately resourced and are not disproportionately affected by budgetary restrictions
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Eliminate the practice of “ethnic profiling” by the police which targets persons belonging to some minority groups; increase training of the police to combat racism and discrimination, on the basis of existing good practices
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Consult with representatives of the Berber community regarding ways and means of improving the situation of the Berber community in keeping with the spirit of the Framework Convention (…)”
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The applicant complained that he and his family had been evicted from a local authority gypsy caravan site, invoking Articles 6, 8, 13 and 14 of the Convention and Article 1 of Protocol No. 1.
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Judgment of the Court (Eighth Chamber) 22 November 2012. (Article 157 TFEU – Directive 79/7/EEC – Directive 97/81/EC – Framework Agreement on part-time work – Directive 2006/54/EC – Contributory retirement pension – Equal treatment for male and female workers – Indirect discrimination on grounds of sex). Case C-385/11, Isabel Elbal Moreno v Instituto Nacional de la Seguridad Social (INSS), Tesorería General de la Seguridad Social (TGSS).
“9 On 8 October 2009, aged 66 years, Ms Elbal Moreno – the applicant in the main proceedings – applied to the INSS for a retirement pension. Previously, she had worked exclusively as a cleaner for a Residents’ Association part-time for 4 h a week (10 % of the 40-h statutory working week in Spain) for 18 years.
10 By the decision of 13 October 2009, Ms Elbal Moreno’s application for a pension was refused on the ground that she had not completed the minimum contribution period of 15 years, required for entitlement to a retirement pension, as provided under Article 161(1)(b) of the LGSS.
11 A complaint lodged by Ms Elbal Moreno on 30 November 2009 was dismissed by decision of the INSS on 9 December 2009. Whereas, in Ms Elbal Moreno’s case, proof was required of a minimum contribution period of 4931 days, the decision recognized that she had completed a contribution period of 1362 days.
12 Following the dismissal of her complaint, Ms Elbal Moreno brought an action before the Juzgado de lo Social de Barcelona (Social Court of Barcelona) in which she submitted that the Seventh Additional Provision of the LGSS, under which her application for a pension had been refused, entailed a breach of the principle of equality. That provision requires a part-time worker to pay contributions for a longer period than a full-time worker, even with the correcting factor represented by the 1.5 multiplier, in order to obtain a pension which is already proportionately lower. Ms Elbal Moreno also submitted that that rule entails indirect discrimination, since it is an indisputable statistical fact that women workers are the principal users of this type of contract (approximately 80 %).
(…)
29 In that respect, it should be noted that, according to the settled case-law of the Court, indirect discrimination for the purposes of Article 4 of Directive 79/7 arises where a national measure, albeit formulated in neutral terms, works to the disadvantage of far more women than men (see, inter alia, Brachner, paragraph 56).
(…)
32 It follows that such legislation is contrary to Article 4(1) of Directive 79/7, unless it is justified by objective factors unrelated to any discrimination on grounds of sex. That will be the case where the measures chosen reflect a legitimate social-policy objective of the Member State whose legislation is at issue, they are appropriate to achieve that aim and they are necessary in order to do so (see, to that effect, Brachner, paragraph 70).
(…)
38 Consequently, the answer to Question 4 is that Article 4 of Directive 79/7 must be interpreted as precluding, in circumstances such as those of the case before the referring court, legislation of a Member State which requires a proportionally greater contribution period from part-time workers, the vast majority of whom are women, than from full-time workers for the former to qualify, if appropriate, for a contributory retirement pension in an amount reduced in proportion to the part-time nature of their work”.
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This Law is in force but is being appealed before the Constitucional Court by the Partido Popular. The appeal focuses mainly on the articles which regulate the parity conditions for the electoral lists for candidates to political office in Spain.
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To amend the Directive 76/207/CEE about equal treatment for men and women as regards access to employment, vocational training and promotion, and working conditions.
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Vid. Council Directive 2004/113/EC of 13 December 2004, implementing the principle of equal treatment between men and women in the access to and supply of goods and services.
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The Law also follows the recommendations of the Committee of CEDAW. Cfr. Observaciones finales del Comité para la Eliminación de la Discriminación contra la Mujer: Spain. A/54/38; 30°. y 31° Session Periods, 12–30 January and 6–23 July, 2004: paragraph “Principales esferas de preocupación y recomendaciones”.
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Although Law 3/2007 does not make direct reference to Directive 2006/54/EC, the Spanish Government considers that with Law 3/2007 for equality, the Recast Directive has already been transposed in Spain. Regarding Directive 86/378/CEE, regulation in Spain has no changed with Law 3/2007 of equality, except the matter related to collective insurance that is one of the instruments that can be used to guarantee the managerial obligations as for pensions. On this point, the Government is allowed to elaborate a Royal Decree in order to introduce some proportionate differences using the possibility of Article 5.2 of Directive 2004/113/EC.
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There are several decisions by the Spanish Constitutional Court to which I would like to refer because they are inspired by the goal of promoting the reconciliation between family life and the careers of mothers in the workforce. The first one is the decision 128/1987, of July 16, which has a special significance for the Spanish Constitutional jurisprudence on affirmative actions. The second one is the decision 109/1993, March 25. This case concerned the demand of a male worker against a rule that allowed as a worker’s right time off for mothers to nurse their children. This case provoked a great debate that led to amending the Law 3/1989, March 3. This Law extended maternity leave and established special measures to promote the equal treatment of women in the work force, saying as follows: “This leave can be taken equally by the father or by the mother when both of them work”. Despite this amendment, the decision of the Spanish Constitutional Court STC 109/1993, March 25, FJ 5°, affirmed that the rule was not discriminatory to men that work. This decision was based on the biological reality and in the necessity to adopt special measures in favor of disadvantaged groups, such as women in the work force. Ibid. FJS 4° and 6°.
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In this sense, Ollero affirms: “the principal disadvantages of the female citizens, as the discriminated gender, can lead to them being put in a box, with the apparent intention to protect them, as though they were in need of tutelage; in reality this will perpetuate a vicious circle of dependency”.
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Some of the most important and specific legal norms in the scope of the equality of opportunity between men and women in Spain are the following: L.O. 39/1999, para promover la Conciliación de la Vida Familiar y Laboral de las personas trabajadoras; L.O. 1/2004, de Medidas de Protección Integral contra la Violencia de Género; L.O. 3/2007, para la Igualdad Efectiva de Mujeres y Hombres; L.O. 13/2007, de Prevención y Protección Integral contra la Violencia de Género.
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del Llano, M.C.H. (2016). Discrimination and Equality: Affirmative Action in Spain and in the European Union. In: Arnold, R. (eds) The Convergence of the Fundamental Rights Protection in Europe. Ius Gentium: Comparative Perspectives on Law and Justice, vol 52. Springer, Dordrecht. https://doi.org/10.1007/978-94-017-7465-9_4
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