The Differential Impact of Judicial Politics in the Field of Gender Equality.
Three National Cases under Scrutiny

Sabrina Tesoka

Max Planck Institute for the Study of Societies, Cologne

© Sabrina Tesoka, September 1999
European University Institute, Working Paper RSC No 99/18

ABSTRACT (*)

The paper investigates the proposition that the impact of European judicial politics on national modes of governance in the field of gender equality is partly mitigated by two major intervening variables: the existence of contrasted political opportunity structures and uneven access to justice in the European Union. In order to demonstrate this hypothesis, this study leads a systematic evaluation of these mediating variables in three member states. It aims at assessing the extent to which these factors constitute favourable stimulus and incentives or differently, conflict structures and contrarian forces for the expansion of Community judicial politics in the field of gender equality. The paper comes to the conclusion that the conceptualization of the complex dynamics of the emerging new European public policy space require a rethinking of the interactions between law and politics.

INTRODUCTION

The judicial activism of the European Court of Justice (hereafter 'ECJ') is transforming the Community legal order in a supranational direction. Gender equality is an area of Community social policy law which has experienced one of the most dynamic expansion (Hoskyns, 1996). This phenomenon is all the more interesting for it contrasts with the low or barely existent national levels of litigation on gender equality. In spite of obvious limits related to the predominance of an economic rationale and a certain integrationism, the jurisprudence of the quasi-supreme Court of the European Union undoubtedly questions the accommodation of sex inequalities that generally characterises most European welfare states (Orloff, 1996).

While there is a consensus that in order to understand Community gender policies, it is necessary to 'bring the courts back in', there is hardly any work addressing the essential question of the forms and variations of judicial politics in the field of gender equality in the European Union (Volcansek, 1986; Leibfried and Pierson, 1995). It is symptomatic that divergent national reactions towards these new Community norms have not been subjected to systematic inquiry. Obviously, both theoretical and empirical research on this issue need to be conducted.

Overcoming the persisting contentions between legal scholars and political scientists on the issue of the relationships between law and politics, the objective of this interdisciplinary work is to explain how and under which conditions does the Community judicial process influence national and transnational modes of governance in the field of gender equality. Precisely, it aims at accounting why the influence of the Community judicial process varies from one country to another, from one subject-matter to another, and often alters through time in a given member state (1).

The present paper assumes a link of causality between Community judicial politics on the one hand, and on-going changes in national and transnational modes of governance in the domain of gender equality, on the other. The study investigates the proposition that the impact of our independent variable is partly mitigated by two major intervening variables: the existence of contrasted political opportunity structures and uneven access to justice in the European Union.

In order to test this hypothesis, it is necessary to lead a systematic evaluation of these mediating variables in a few member states and assess the extent to which these factors constitute favourable stimulus and incentives or differently, conflict structures (2) and contrarian forces for the expansion of Community judicial politics in the field of gender equality. National political opportunity and incentives structures as well as access to justice will be successively examined according to specific criteria inspired respectively by political analyses on social mobilisation and legal works on access to justice.

Three member states present obvious cases studies because they illustrate contrasted experiences of the complex interactions between national patterns of governance on the one hand, and Community judicial politics, on the other (3).

The United Kingdom has been particularly well receptive to Community judicial politics insofar as British gender equality law as well as the Community legislation has been partially shaped through this unusual interaction. As in every member states, gender equality litigation is still relatively low in comparison with dismissals and redundancy claims in the domain of employment law. Nevertheless, Article 177 referral rate of British courts relative to sex discrimination cases is, by contrast with other domains of Community law, certainly one of the highest in the EU (4). Not only do British courts make a surprising number of referrals in the gender equality field but they also do cite ECJ rulings at a very high rate. The constant flow of British references to the ECJ is frequently explained by two crucial factors: striking inconsistencies between Community and national law, on one side, and the fact that the Convention of Human Rights is not part of domestic law, on the other. From this perspective, British judges and litigants are said to have been simply forced to use EC law. There certainly is some truth to the argument that it is amongst the member states with acute employment law problems that highest litigation rates as well as the greatest innovations in equality litigation procedures have occurred. This study does not deny that the impact of Community judicial politics partly rests upon a reactive basis to grievances on gender equality issues brought to the attention of the relevant bodies. It must be remarked, however, that while gender equality norms in most member states do not easily meet Community standards, a majority of EU countries still exhibit low litigation rates in this field (Prechal and Senden, 1997). Obviously, there are other intervening variables that mediate the impact of Community judicial politics in the UK.

In Germany, the influence of Community norms, in combination to the dynamic jurisprudence of the Federal Constitutional Court, have led to a concretisation of constitutional sex equality principles which had remained on paper for decades. It should be clear, however, that this impact is not due to a so-called open attitude of the German executive or legislator. As the majority of the other member states, Germany has interpreted Community directives in a rather minimalist way. The real channels of this influence has been the large number of German references to the ECJ. Germany's litigation rates are the highest in the European Union (5). Moreover, judgements are based on EC law in between 20-30% of cases. By contrast with Britain, however, Germany does not display any particular sex equality forum structure which would explain these litigation patterns. The conditions and forces which facilitate Community judicial politics in the field need to be specified. A second point needs to be clarified. In absolute terms, 177-based litigation in Germany is higher than in many other member states; but in terms relative to litigation levels in Germany, it is still quite low. Another distinctive feature of the German case is that such judicial developments are focused upon a relative small number of issues. By contrast with the British cases which touch upon equal pay, equal treatment, social security, pension, pregnancy, homosexuals' rights, etc., more than 80% of the German preliminary rulings references raise the question of indirect discrimination against women, especially part-time work, pensions and positive action (6). German cases relate to very specific and distinctive provisions of German employment law whose 'incompatibility' with Community standards is increasingly pointed out (Schiek, 1998).

France, as many member-states, has a history of equality laws (7) which preceded the passing of the Community equality Directives (Gardiner, 1997). The mere existence of the now-legendary Article 119 is mainly due to the French government's pressures during the negotiations of the Rome Treaty. Furthermore, a significant bulk of the contemporary French national legislation has been enacted in order to comply with European law, following EU membership. It must be noted however that the incorporation of Community norms into national employment law models has not been a very enthusiastic movement. On the one hand, French judges, lawyers and civil servants have generally tended to consider that 'nothing was needed' by way of compliance since the equality provisions in the French Constitution and national legislation were seen as providing sufficient protection. On the other hand, French government's responses to changes forced by Community institutions have generally been the tardy introduction of minimal changes necessary to avoid contravening EC law.

This integration has resulted in a rather disappointing situation, somewhat confirming the French predilection for symbolic rather than effective reform in equality politics. Gender equality litigation is barely existent in France both at a national (8) and a Community level (9). It might be argued that the high rate of full-time employment of women, the existence of more comprehensive child care facilities and more special protective legislation for women than in most other member states explain these very low litigation levels for the size of the country. In other words, French gender equality norms would be comparatively high. Such an explanation is immediately refuted by the gender pay gaps of 27% on the French labour market (10). As the current French constitutional debate reminds it, women's position in decision-making processes is also very critical (Gaspard and Servan-Schreiber, 1992). The limited number of gender equality cases is all the more paradoxical since France offers civil and criminal judicial channels which would potentially enable a various range of actors, from individuals to associations and trade unions, to bring gender equality cases before the courts. Another aspect of the French peculiar situation is that Community sex equality norms are invoked by employers and not by female workers. Until now, the few preliminary references in the field of sex equality only touched upon the question of the ban on night-work for women and the requirement not to dismiss pregnant women. French protective legislation for women is thus being challenged by litigants who are not supposed to be the main beneficiaries of gender equality legislation.

It would be worth making sense of the puzzles posed by these three member states. It will be done on the basis of a close examination of the intervening variables of the impact of Community judicial politics on these three countries. The study further enable us to draw more general conclusions regarding the complex dynamics of the European judicial public policy space.

II Exploring the structures of opportunity and incentives of the United Kingdom, Germany and France

The following descriptions do not pretend to be new, and much has been written on the respective political systems of France, Germany and the United Kingdom. However, the analysis of Community court cases that highlights the interactions between national structures and actors, on the one hand, and Community judicial dynamics, on the other, remains an unusual approach for it breaches conventional lines between the disciplines of law and political science (CURAPP, 1994; Wincott, 1995).

The British, German and French political systems will be examined in the light of some of the criteria identified by studies on political opportunity structures (hereafter 'POS') a concept which has been forged for the methodological analysis of political contexts of social mobilisation (Kitschelt, 1986; Tilly, 1986; Kriesi, 1991; Tarrow, 1996). Instead of providing a deterministic explanation, this perspective rather aims at assessing the receptivity or vulnerability of a given political system to actions of a challenging group. It simply explores the distribution of opportunities and incentives for action (Rootes, 1997). The interest represented by this point of view is thus rather obvious in relation to our research questions.

The paper particularly focuses on certain elements of the 'POS' analytical model because they appear to be more relevant to identify specifically the conditions, actors and channels which facilitate, or differently, resist more or less directly to the mobilisation of Community law and the Europeanization of gender equality. It would be interesting, for instance, to grasp the contrarian tendencies that re-assert and specify gender equality national standards against Community ones. Criteria for the evaluation of the first intervening variable, i.e., the distribution of structures of opportunity and incentive, include the state model, the national patterns of governance, the degree of openness (11) of the national political systems, the position of the judicial branch, state-society relations as well as the configuration of alliances in the three member-states under discussion.

The United Kingdom and France embody strong (12), and unitary states, although they are neither homogenous, unified or autonomous. Both countries are characterised by a high degree of centralisation and concentration. Consequently, these political systems are rather closed to their detractors and display very few access points. Differently, Germany, because of its federal structure and strong judicial power, whose role as a co-legislature is widely acknowledged, would be an 'open State'. It is also commonly characterised as a 'weak' state.

The domestic judicial systems of the three member states under issue also display cross-country variations (CEC, 1998). The United Kingdom has a common law jurisdiction with no constitutional review, and is characterised by the absence of a long-standing public law tradition to control administrative action. British political culture values minimal judicial interference in politics. Of significance is the fact that British institutions narrowly construe statutory interpretations by judges and subject all judicial decisions to Parliamentary overrule. Not least, it is a centralised judicial system. Certain elements have nevertheless reinforced the position of the judicial branch. As far as the positive factors are concerned, it is worth pointing to the particular impact of the American legal model, notably its emphasis on judicial activism, which is well-reflected in the British 1975 Sex Discrimination Act (Posner, 1996; Rawlings, 1995). Moreover, social actors' interest for public interest litigation and the general enthusiasm for the discourse of rights, as illustrated by the great success of Dworkin's theory of rights, are also to be considered (Dworkin, 1977). Not least, despite the 1990 and 1993 reforms aimed at reducing access to public funds for litigation, legal aid has been always valued in the United Kingdom. As far as negative factors are concerned, the long presence in power of a government opposed to social legislation and the doctrine of parliamentary sovereignty have contributed to confer a very significant role to the judicial arena in social politics. In the United Kingdom, the judicial ground seems to be perceived as a battlefield for expressing dissent and exerting pressures for change on the British government (Sunkin, 1994). When assessing the position of the judicial branch, a distinction must thus be made between the formal powers of the judicial branch, on the one hand, and the symbolic status of the judiciary in a given society, on the other.

(West) Germany is characterised by a political culture that accepts judicial review and authority. The Basic Law, and the Constitutional Court, whose access is also ensured for individuals in cases of an alleged breach of their fundamental rights, assume a central role. Moreover, it has a civil law jurisdiction with extensive forms of constitutional review and a well-established tradition of public law that stresses individual protection from arbitrary administration. Not least, the German judicial order is a decentralised system. There is no need to remark that such distinct features constitute favourable conditions for the development of judicial politics (Landfried, 1995). Interfering courts and societal actors may be more prone to resort to the Community judicial system because litigation and the language of rights are already part of their terminology and 'repertoire of action' (Tilly, 1975).

By contrast, France has a civil jurisdiction with limited forms of constitutional review, no individual access to the Constitutional court and a deeply-rooted distrust vis-à-vis judges' role in politics (Troper, 1980). It is well epitomised by constant limitations to judicial lawmaking, and a long tradition of public law that would tend to value administrative efficiency rather than the defence of individual rights and freedoms against government. French jurisdictions also seem to be characterised by a self-referential legal culture: Community sources are hardly cited in national judicial decisions. It must be remarked, however, that many factors have contributed to modify this initial configuration. Breaking with enduring practices, the Conseil d'Etat increasingly emphasises the protection of individual rights vis-à-vis the administrative authority. The highest administrative jurisdiction has also encouraged actions brought by public interest groups. Equally, the unexpected transformation of the Conseil constitutionnel must be stressed. Initially meant to be a political organ which validates the laws passed by the executive, this jurisdiction now effectively exerts its powers of judicial review and constitutional control (Stone, 1992). Not least, it is worth remembering that, as in most Western societies, French judges are also faced with a growing demand for justice: litigation strategies have been developed by French pressure groups in the domain of agriculture, environmental protection or rights of migrant workers (Garapon, 1996). Despite these significant changes, the judicial branch remains the weakest part of the French government.

The configuration of alliances is also very different in the three member states under scrutiny (Katzenstein and Mueller, 1987). Surprisingly for a 'closed' and unitary State, the United Kingdom is characterised by a very rich configuration of allies and support in the field of gender equality. Public agencies, trade unions and interest groups have been exceptionally active on the judicial ground in the field of gender equality.

Contrary to the usual patterns of a corporatist polity, the German configuration of allies in the field of gender equality appears to be relatively modest. Though numerous, women's movements are non-institutional and scattered. Unions have only supported a few number of gender equality cases, and their attitude towards Community jurisprudence on temporary work remains mitigated. Governmental initiatives in the domain of positive action for women under the auspices of the Länder remain controversial. Moreover, they do not always seem to serve the interest of women in courts. Loose affiliations of lawyers and advocacy coalitions, which have been notoriously active in very specific Länder (13), rather than powerful interest groups and agencies are at the core of gender equality litigation in Germany.

France's configuration of alliances in the field of gender equality is foremost distinguished by its mediocrity. France's long-lasting distrust toward corporatism and intermediation certainly is a unfavourable condition for the development of a network of non-public actors in the field of gender equality (Cohen-Tanugi, 1992). French women's groups hardly exist. Furthermore, it seems that the tardy concern expressed by the Socialist Party and Government for the promotion of women's rights did not lead to major practical effects. The failure of the French practice of State elitist feminism and the predominance of symbolic politics are increasingly denounced (Mazur, 1995). Neither unions, interest groups or even informal networks have been very supportive. In the opposite, there is a various range of French private and public agents that operate as a protective belt vis-à-vis Community norms and devolution in the field of social policy. They constantly oppose a certain model of gender equality, notably based on protective legislation for women, to a desexualised working environment and social life which would be allegedly promoted by some forces in the Community.

By way of a preliminary conclusion on the nature of the political opportunity structures, it can be said that according to the degree of openness, model and patterns of governance of the three national political systems concerned, the position of the judicial branch, and their prevailing patterns of state-society relations, it seems that the German political system provides more favourable conditions for mobilisation than the French, and to a lesser extent, the British one. It is true, however, that the German configuration of allies in the field is unexpectedly patchy and individually-based, especially in comparison with Germany's usual levels of intermediation and mobilisation in the social or labour field.

British opportunity structures in relation to gender equality are certainly not as closed to the Community judicial politics as it is often argued. The United Kingdom displays very strong conflict structures for intermediation and mobilisation. These contrarian impulses are, however, counterbalanced by a dense configuration of allies and support in the field of gender equality as well as an instrumentalisation of the judicial sphere. Public agencies, trade unions and interest groups have been particularly active in the field of gender equality insofar are they constitute exception to the rules by comparison with most of the EU member states.

At the other end of the spectrum, France's political opportunity structures betray the greatest number of contrarian impulses for the expansion of Community judicial politics in the field of gender equality. France is a 'closed State', the position of the judicial branch remains rather weak, and state-society relations are relatively underdeveloped. Moreover, the configuration of allies is especially weak in the field of gender equality. France is undoubtedly a case where the Europeanization of gender equality politics has encountered a vivid counter-action on the part of national legislatures, executives, courts but also emanating from a wide range of private and public actors. Actors in the field do not seem to have been attracted by the window of opportunity of the Community judicial order.

The identification of the favourable vs. contrarian forces and conditions for the penetration and expansion of Community judicial politics in the domain of sex equality politics enable us to gradually understand the uneven contexts within which the Community judicial process must operate (see table I). It also reveals the complex and patchy character of the Europeanization of gender equality politics in the three countries examined.

It would be worth supplementing these elements with the examination of the second complex of intervening variables: the key-question of access to justice.

Table I: First complex of intervening variables: Structures of Opportunity and Incentives in the United Kingdom, Germany and France in the field of gender equality

III- Effective access to justice in the United Kingdom, Germany and France: A "no frills" evaluation

The availability of equality litigation channels is a vital factor for the penetration and development of judicial politics: an effective access to justice in the field of gender equality facilitates the mobilisation of law. Despite the presence of equality litigation procedures in all EU member states, it seems that certain national systems are more 'open' than others as well as better equipped to provide effective and easy access to justice (Cappelletti et al., 1978-9). Access to justice certainly does mediate the impact of judicial politics on national and transnational modes of governance in the field of gender equality. This argument is worth being further substantiated.

An important element is, of course, the position or attitude of national judges vis-à-vis the ECJ, as well as the nature of the dialogue between the national jurisdictions. Far from being confined to the role of a transmission belt, national courts and tribunals assume a key-role in the inception and the conclusion of the 177 preliminary procedure. Any national judge may take the initiative to refer a case to the ECJ. In face with the request of one of the parties to resort to the preliminary ruling procedure, judges of first instance courts and intermediate ones are in the position to allow or prevent a case to be referred to the ECJ. As a result of a "process of hybridization", particularly encouraged by the ECJ, national judges are now endorsing both the functions of a national judge and of a Community one. There is no doubt that national judges have been empowered by the process of European legal integration (Maher, 1998).

The empowerment of national judiciaries does not necessarily lead to a dialogue or a collaboration between the Community jurisdiction and the national jurisdictions. Certain national judicial systems display more signs of resistance although a swift classification of a national judicial system as being a 'resistant' or differently an 'obedient' is unsuitable. The relationships between the ECJ and the national judiciaries in the three member states concerned is marked by numerous conflicts and incidents of resistance. The contrast between British and German jurisdictions, on the one hand, and the French ones, on the other, is nevertheless striking: while the firsts do refer cases to the ECJ and frequently quote the Community jurisprudence in their judgements, the lasts hardly refer cases to the ECJ and do not cite the caselaw of the European Court. Access to the Community judicial sphere is certainly more difficult in France than it seems to be in the United Kingdom and Germany.

Though important, the attitude of national judges is not a sufficient circumstance to ensure an effective access to justice. The conditions, actors and channels that facilitate, or differently, hinder access to justice in the field of gender equality, may be further assessed through the analysis of a cluster of factors that have been forged by legal works on access to justice (Blom, et al. 1995; Verwilghen, 1993). They include, first of all, the nature of the competent judicial institutions in the field of gender equality. The 'user-friendly' character of the structures concerned is here an important consideration. Secondly, the locus standi; a notion which relates to the range of private and public actors which may bring a claim and stand before the competent courts. Thirdly, the existence and forms of gender equality law forums. It relates to the presence of public space for debate and legal action in the field of gender equality. Fourth, the availability of legal aid (14). Fifth, the legal status of collective agreements in the member states (15). The question of the justiciability of these last documents inevitably comes to the fore.

The United Kingdom and the discovery of the Eurolaw game

There is no specialist equality tribunal in the UK. The competent jurisdictions in sex equality matters are the British Industrial Tribunals, the Employment Appeal Tribunal, then the Court of Appeal and the House of Lords. Since the Industrial Tribunals only have jurisdiction over specified statutory rights, cases related to contracts of employment fall within the competence of ordinary courts. It is worth noting that the Industrial Tribunals, the courts in which gender equality cases start, are generally perceived as well-versed in EC law and willing to apply it. It is confirmed by their growing enthusiasm in making a significant number of references. Of interest is that the House of Lords and the English Court of Appeal exhibit a rate of preliminary references which is comparable to the ones of the Industrial Tribunal. This 'user-friendly' attitude is often contrasted with the ones of the first and second instance appellate courts, i.e., the Employment Appeal Tribunal and the Court of Appeal. In the United Kingdom, first instance courts and courts of final appeal seem to act as 'user-friendly' structures for gender equality litigation.

The British judicial system offers a medium-range system of locus standi. While common interest groups cannot bring a gender equality case before national jurisdictions, Citizen's Advice Bureau, trade unions and, not least, the EOC are entitled to do so.

On the question of the existence and forms of a gender equality forum, the United Kingdom presents an exceptional situation. Two equality agencies, the Equal Opportunities Commissions for Great Britain, (hereafter EOC) and for Northern Ireland, (hereafter EOC NI), assume litigation and quasi-judicial functions. The EOCs were created by the Sex Discrimination Act 1975 as a quasi-autonomous non-governmental organisation in charge of the task to work towards the elimination of discrimination and disposed of a wide variety of powers relative to research, education and publicity. It is permitted to grant assistance to complainants and has also the power to conduct formal investigations into an organisation where it suspects institutionalised discrimination. In both cases, non-discrimination notices may be issued by the respective agencies. Employers have then time to appeal to the Industrial Tribunals. Ultimately, an injunction from the traditional court system can be obtained to prohibit persistent discrimination.

It seems that the EOCs became progressively aware of the potential offered by EC law as a vehicle for challenging discriminatory practices in Great Britain. It has developed a strategic perspective as to the targets to focus upon and the claimants to support. This element is reinforced by the modest financial resources of the EOCs which require them to be particularly selective when 'choosing' the cases they will fund. Cases supported by the EOC represent about one third of all references heard by the European Court of Justice on matters relating to equal pay and equal treatment at the workplace.

Although on a different scale, the British unions are also involved in equality litigation. They devote a substantial amount of funding and expertise to appealing cases relative to equal pay and equal value issues. From this perspective, their behaviour clearly differ from the one of their European counterparts: while in every member states, the trade union movement has the potential to assist its members in litigation, it hardly supports gender equality cases, with the possible exception of the Irish and the Danish unions (Bercusson and Dickens, 1996).

Last but not least, litigants in the UK do benefit from the support of pressure groups. It is common knowledge that Community cases on the respective issues of transsexualism and homosexuality have been the object of a particular involvement on the part of Stonewal. British common interest groups, such as the National Council of Civil Liberties, are also becoming increasingly involved. Some of them, however, such as the Women's Legal Defence Group Fund, ran into financial difficulties and collapsed. The British gender equality forum is at the origins of most strategic litigation and test cases that are brought before the ECJ. The British arena is also characterised by informal connections between the EOCs and practitioners working on equality issues or the judges and academics, which certainly denote networking patterns in the judicial sphere. The diffusion of European law equality principles is facilitated by the large number of references from British courts, and by the widespread reporting and analysis of the impact of Community case law on British legislation. Among these publications, the Equal Opportunities Review a periodical is precisely devoted to national and supranational discrimination law developments. It regularly produces reports on sex equality law and practice in the UK and comments relevant ECJ decisions.

Regarding the question of the availability of legal aid, there is no provision at all for financial assistance before the Industrial Tribunals, although free legal advice is available and costs cannot be awarded against a losing party. Applicants can represent themselves or be represented by any other person such as a trade union official or Citizens' Advice Bureau volunteer. In addition to the legal advice and the financial assistance which may be provided by the EOC, financial assistance can also be offered by the Commissioner for Protection against Unlawful Industrial Action in certain circumstances. Legal aid is available for actions before the Employment Appeal Tribunal and the ordinary courts. Employers are requested to pay their own costs. Before the Industrial Tribunals, costs are not recoverable for a successful party in order to maintain the informality of the system and elude a paradoxical situation where an unsuccessful employee does not have to pay the employer's costs. Legal aid is nevertheless available at later stages of the judicial process, that is to say the appellate courts. It must be said, however, that despite this crude absence of financial assistance at the first stage of the judicial process, Great Britain is the only member state to allow semi-public equality agencies to assist litigants in the judicial process. The system seems to be relatively effective if one considers that most of the British landmark cases in the field of Community gender equality law have been funded by the EOC.

The question of the justiciability of British collective agreements has been at the centre of controversies between Community institutions and the British government. Under renewed pressure from the European Commission, the United Kingdom has introduced interesting changes in the Trade Union Reform and Employment Rights Act 1993. It is thus now open to an individual to bring an allegedly discriminatory clause of a collective agreement, or other source of working conditions, to an industrial tribunal in order to establish that it would, if applied to her, inflict discrimination upon her. The tribunal can then declare the clause to be void as it applies to her. Individuals can thus take preventive actions. Nevertheless, there is neither any access to parties other than individuals or any mechanisms to amend a discriminatory provision.

Germany's experience of litigation 'à la carte'

Regarding the nature of the competent jurisdictions in sex equality matters, the first instance court, the Labour Court, has jurisdiction on every civil dispute, both individual and collective, emanating from the employment relationship, even as regards certain public sector workers. The Landesarbeitsgericht, which is controlled by the Länder, is the Labour court of appeal. The Bundesarbeitsgericht (BAG) is competent for final appeals. Certain categories of public servants may take equality cases to the Administrative Courts but German administrative law only applies to a restricted categories of Beamte officials. Generally, the German Constitutional Court has been very active in the field of gender equality. There unquestionably is an active advocacy coalition which has also used the constitutional arena as a battleground for the promotion of equality between men and women in Germany. Since the mid-80s, there has been a steady increase in sex equality litigation levels and an increasing willingness of German courts, especially first instance ones, to refer major gender equality issues, even in the absence of the parties at the hearing of the case. At times, German judges have even used the threat of a preliminary reference to the ECJ as a means of forcing employers to agree on a settlement. Some of these first instance courts, which have been labelled as 'employees-friendly', have been accused of circumventing more prohibitive national intermediate and high courts through the wide use of preliminary rulings. To date, the first instance labour courts have made 18 out of 35 references to the ECJ. Of interest is that the vast majority of Article 177 references in the field have been made by courts composed of the new generation of German judges who have benefited from a better education in Community law and within which the number of women judges is significantly higher.

In terms of locus standi, however, the German legal system is rather restrictive. The Labour inspection, whose functions are restricted to health and safety issues, do not have any functions in relation to equality law enforcement. Unlike other areas of law, there is neither a common group interest access (16) or an equality public agency, whether federal or Länder based, which would be empowered to assist litigants, and litigate in its own name in equality cases. It is true that German unions have locus standi and possess the necessary resources to support cases. While they frequently assist individuals, they are hardly involved in equality litigation and seem to prefer cases of socially unjust dismissals. Not least, a case can be also brought by a Works Council to the Labour Courts if rights have been infringed. The backing of such an action is not negligible since the opinion and the argumentation of the Works Council are very useful for an individual who chooses to litigate upon them. Until now, Works Council do not seem to have assumed a particular role in gender equality litigation at a Community level.

By contrast with the UK, Germany only displays a few gender equality forum. It is true that women's representatives have been appointed in the Federal and Länder administration. Nevertheless, their objective is only to inform, control and eventually refer a case to the hierarchy. There clearly is a network of women's lawyers which publishes a journal, Streit, but they have not developed co-ordinated litigation strategy vis-à-vis the ECJ. The driving force of EU-level litigation is a cluster of German advocates, academics and judges who have developed a real litigation strategy in the field of gender equality. The existence of informal links between judges, practitioners and academics with a growing expertise in EC law is increasingly pointed. Among those, Ninon Colneric, Klaus Bertelsmann, Heide Pfarr, and recently, Spiros Simitis appear to lead an intensive information-litigation campaign in the field. This informal network is trying to exploit the possibilities of Community law in order to circumvent certain German norms and courts (Pfarr and Bertelsmann, 1989). Far from operating a general and radical move towards the Community judicial arena, such actors do rather make a selective shift towards the ECJ and only target a certain category of cases.

Regarding legal aid, it must be remarked that the financial limits of legal aid are very low. This element is particularly negative if one considers that while the parties are not required to have a legal assistance in the first instance, they must be represented in the Landesarbeitsgericht and in the Bundesarbeitsgericht. Legal aid is paid out of court budgets either without any contribution or on the basis of instalments from the claimant. Moreover, under the Beratungshilfegesetz, legal aid is not granted for litigious cases relative to employment (17). Furthermore, under the Labour Court Act, even a successful claimant must pay her legal costs in order to avoid that an unsuccessful employee has to pay the employer's costs. As in Great Britain, employers pay their own costs also. It must be noted however that costs of a labour dispute are known to be considerably lower than costs in civil proceedings. Nevertheless, the availability of legal aid remains problematic and depends on the support of unions or interest groups whose lack of interest in these matters is well-known. There is no need to say that non-members of a union are especially in a difficult position.

The question of the challenge to the provisions of a collective agreement is a highly problematic issue. It suffices to remind that encroachments upon the application of the equality principle on the basis of bargaining autonomy were even long seen as acceptable; a position which was indirectly supported by Article 9 of the Grundgesezt. Although German unions can challenge discriminatory provisions in collective agreements before the Labour Courts, this possibility has not been used in sex equality cases. Works council can themselves litigate but in defence of their rights to consultation and co-determination rather than upon some substantive breach of the law by an employer. Community judges recurrently question the non-justiciable status of collective agreements on the ground of that it prevents sex discriminatory provisions to be challenged in courts.

French Symbolic Politics at Work

As far as the nature of the competent jurisdictions is concerned, female workers can bring a claim before the Conseil de Prud'hommes (hereafter CPH), the competent organ of judicial adjudication in individual labour disputes (18). The proceeding before the CPH normally starts with a settlement endeavour. The lay judges attempt to settle a case amongst themselves and only call in a judge if this is not possible. Appeals are taken to the Social Chamber of the Cour d'Appel and then, on a point of law, to the Social Chamber of the Cour de Cassation. Disputes concerning collective agreements and the internal works rules are dealt with by professional judges in the civil system (19). These are the Tribunal d'Instance (TI), and the Tribunal de Grande Instance (TGI). Criminal proceedings involve the Tribunal correctionel for breaches of moderate gravity, and the Tribunal de police for infractions of minor importance. Appeals go to the Criminal Chamber of the Appeal Court which are composed of professional judges with no particular labour law specialisation. On point of law, last appeals go to the Criminal Chamber of the Cour de Cassation. Furthermore, cases may be brought by public servants against employment regulations to the administrative courts.

It must be remarked that the Conseil de Prud'hommes, which is the court in which sex discrimination cases start, has been sometimes criticised for not being as sympathetic to equality cases as to more traditional employment law disputes (Marguerye, 1983). Precisely, the composition of this jurisdiction seems to be a critical element: they are constituted of male representatives of traditional trade unions whose neglect to gender equality issues is frequently noted. The CPH does not seem to exploit all the possibilities offered by the French Labour Code and the Civil Code. They hardly appoint a "conseiller rapporteur" or call for an expert in the few sex equality cases they have to handle. One must not leap to an easy conclusion that the existing 270 Conseils de Prud'hommes are against gender equality litigation. However, the question of the inclination of the social parties which compose these jurisdictions is worth being raised.

Penal sanction and labour inspection are also two other powerful devices of employment law. However, criminal courts are certainly not 'user-friendly' arena for gender equality claims. Moreover, labour inspector's level of expertise and enforcement of Community law is so low that they are rather useless on these questions, as is the Public Ministry. Furthermore, as in most member states, the labour inspectors do not appear to devote much effort towards dealing with equality questions and rather focus on the enforcement of penal provisions. It is difficult to state with precision the amount of litigation related to sex equality but it seems that it is numerically insignificant. Publication of and information relative to cases below Cassation level is not systematically reproduced and their dissemination depends on articles on labour law journals or in publications by employer organisations and trade unions. By contrast with the UK or Germany, leading labour law journal in the field have hardly published analyses of sex equality litigation. The consciousness about the importance of European equality law is at last timidly increasing. Reference is more frequently made to Community law in legal writing, in the arguments submitted in litigation by the parties and in the judgements of the courts. This last point is far from being meaningless: the utilisation and circulation of Community law indirectly partake to the access to the courts. Nevertheless, French opportunity structures remain refractory to the effective utilisation of sex equality rights. It still constitutes a reactionary forum for the expansion of judicial politics in the domain of gender equality.

Another distinctive feature in the French system that needs to be demystified is the apparent generous system of locus standi. Associations and common interest groups can litigate autonomously but only in the criminal courts. The absence of access to the civil, and particularly labour courts is a crucial problem. Moreover, the fact that the group is required to be in existence for five years, surely prevents spontaneous groups to exploit the potential of Community law. Not least, since French women's groups have low membership, and are not supported by social actors, their power and resources are rather limited to use such a procedure. It is really a 'vicious circle'.

Last but not least, French trade unions have also access to justice. French unions have wider powers in the judicial arena than other European trade unions. They can act both for members and even non-members so long as the individual has been informed of the action and has not made any objection. Moreover, unions may attack discrimination at source by seizing the Tribunal de Grande Instance or, in certain instances, the criminal courts. French unions' activity remains absolutely low in this domain. It is true that unions are maybe more comfortable in traditional forums for negotiation or quasi-judicial structures than in courts. Litigation is certainly not a major element in their repertoire of actions. Nor are most unions really at ease with the legal terminology that is particularly favoured at the EU-level. It also seems that French unions remain anxious to protect the collective labour law system from what is perceived as 'alien individual rights'. Whatever their reasons are, French unions do not provide an adequate support for access to justice in the field of gender equality.

Financial assistance is seen as a real problem since legal aid only assist those who are very poor (20). There is no guarantee that a successful claimant will retrieve all her legal costs from her employer. Hence, individuals are - and need to be - supported by unions and associations. It is true that in each country under discussion, it is obviously impossible for a modestly paid worker, with no or little legal expertise, to contemplate an equality action without agency or union support. Given the complexity of many equality cases, as reinforced by the intervention of the Community judicial machinery, costs is certainly an inhibiting factor. However, the French situation appears to be particularly critical: considering the rather unsympathetic attitudes of trade unions as regards sex equality litigation, and the limited resources of women's interest groups, there is hardly any financial support available for litigation.

As far as the status of collective agreements is concerned, it is nearly impossible for an individual to challenge a collective agreement in France. However, an interested party, including a trade union, is able to challenge discriminatory provisions on grounds of nullity before the Conseil de Prud'hommes. This possible recourse does not seem to have excited much attention in the field of sex equality. It is often argued in this respect that the few women's rights groups conceive litigation as a dangerous device: benefits can easily be taken away from those who previously enjoyed them by a single judicial decision. Regarding the case of the public sector, employment regulation can be referred to the administrative courts for nullification. Surprisingly, there seems to be no mechanisms whereby a provision of a collective agreement or employment regulation may be amended.

To conclude, it can be said that, as demonstrated by the present description, the impact of judicial politics on modes of governance in the field of gender equality is partly mediated by effective access to justice in the countries concerned (see table II). High litigation rates and strategic mobilisations of the law are to be found in countries in which an effective access to justice is ensured. The study has highlighted the significant gap between formal procedures of access to justice, on the one hand, and effective access to justice, on the other. The French instance is rather illustrative in this respect. France's apparent generous system of access to justice is particularly ineffective: it is a refractory and user-unfriendly structure for gender equality litigation and the mobilisation of law. Contrary to what is often assumed, the British system of access to justice is relatively effective in comparison with other member states. Unexpectedly, Germany does not provide an exceptional 'supportive' judicial environment for EU-level litigation in the field of gender equality.

It also appears that access to justice in the three member states examined is foremost characterised by contrasted and difficult situations (Vogel-Polsky, 1997) that are often under-valued in the on-going debates on the catalytic effects of European law (Weiler, 1991, 1994). It must be remarked in this regard that equality litigation as it exists today in the respective member states is individual litigation (Lacey, 1992). Collective litigation or 'class-actions' are not possible before the ECJ. It thus implies that an individual must prepare and bring a case, which, needless to say, given the complexity of the law may prove to be very difficult without expert assistance. Furthermore, relevant information will often be in the hands of a person, such as an employer, who may be reluctant to place it at the disposal of the complainant. Apart from the procedural obstacles to be overcome, a major question relates to the financial implications of bringing a case for the assistance of a lawyer is hardly free of charge. Therefore, it is obvious that for litigation to take place, a private or public organisation other than the individual litigant must be actively involved in the pre-court and court stages of an equal treatment claim. Especially, this work highlights the fact that, unlike the British exceptional case, many gender equality campaigns are not actually mounted by cohesive interest groups employing legal advisers, but rather by loose affiliations of lawyers seeking to transpose into constitutional and justiciable rights certain equality objectives which were not included by the traditional policy-making avenues. Litigation in the field thus oscillates between a 'frontman' model of representation, on the one hand, and a litigation coalition model, on the other. The pre-court phase is also characterised by the absence of important coalitions. There are no massive concerted campaigns of individual rights litigation aimed at persuading judges to undertake a major change in public policy that legislatures and executives have refused. Therefore, the role of private and public organisations in pushing the Europeanisation of gender politics through constitutional judicial review must not be overstated (Mattli and Slaughter, 1998).

Table II: A second complex of intervening variables: Access to Justice in the Domain of Gender Equality

IV Conclusion

It is apparent that critical changes are now taking place in the Community judicial sphere (Ball, 1996). Relatively closed to individual litigants and notoriously reluctant to public interest litigation, the Community judicial arena has evolved into a system where the defence of the rights and freedoms conferred by Community law to nationals of the member states is an essential concern (De Bùrca, 1995). Undoubtedly, the Court's constitutionalisation of the treaties, the forging of the direct effect doctrine and the progressive 'enrolment' of national judges have been major factors in the opening up of the Community judicial sphere (Mancini, 1993). This mechanism seems to constitute a "virtuous circle" for it further allows judges to extend their field of action and litigants to bring their cases.

The dramatic increase of preliminary rulings relative to gender equality cases, and to a certain degree, legal actions by the Commission attest for a rising awareness of the potentials of Community law among a various range of private and public actors in the member states. Alongside legislative and administrative lobbying, litigation as a political weapon seems to progressively become a more significant component of the repertoire of action of the actors in the field.

Article 177 EEC has clearly marked the advancing instrumentalisation of the ECJ and Community law for the resolution of national disputes. This phenomenon rests notably upon the action of national judges. Sometimes it can even be related to the judicial activism of some national judges. Concurrently, through cases which generally oppose individuals to national public authorities, or even to private employers, European litigants, and foremost the private and public organisations that encourage and support them, seem to act as crucial agents of the implementation of Community law. Notwithstanding the fact that their possibilities for bringing a case are rather limited in the Community system, trade unions, diffuse interest groups and official or semi-officials agencies as well as loose affiliations of lawyers have regularly supported litigants before the ECJ. They display a growing expertise in Community law. In the area of gender equality, judicial politics must be related to a circumscribed and selective mobilisation of private and public actors in the member states (O'Neill, 1996). The presence of these 'repeat players' is thus worth being noted: by contrast with cases brought on an individual basis, interventions by such actors are more likely to be related to well-orchestrated litigation strategies of circumvention and contest of national laws, norms or practices. On this perspective, the Community judicial sphere appears as an instrument to serve social or political interests. Though of various forms, these practices of 'pressure through law' all point to the issue of the rising mobilisation of law in social life and the social usage of justice (Bouretz, 1991).

Our study has also emphasised the distinctive channels of judicial politics in the various national arena examined. The exceptional litigious profile of the major opponent to a social Europe certainly owes much to the litigation strategy which has been developed by a cluster of public and private actors: there is an active and significant equality forum, the EOC has developed a litigation strategy, women's groups and trade unions are lobbying and supporting litigation. Certain national judges have also significantly contributed to offer user-friendly structures for gender equality litigation at the EU-level. One of the major objectives of this 'Eurolawgame' is to open up the British national legal system to Community norms and principles: by removing certain issues from the national arena, it is assumed that, at last, courageous changes will be introduced (Rawlings, 1993). The case of the UK suggests that the conflict structures of a unitary and 'closed' state may be counter-balanced by the extremely active mobilisation of a various range of a public and private actors. It thus implies that Community legal developments on gender issues have successfully challenged the imagination of players in the field and provided them with a real window of opportunity for judicial action in the field. 'Unexpected events' do have their place in this study on the configuration of structures of opportunity and incentives in the member states.

As far as the German experience is concerned, our exploration has also disclosed interesting elements. Despite the existence of numerous 'predictors of success' for the expansion of judicial politics in the domain of gender equality, Germany's litigation rates in the field remain relatively low. The presence of an independent, decentralised judicial system, the existence of 'user-friendly' first instance labour courts and the strong juridification of the German society are mitigated by the critical absence of a real equality forum structure. The mobilisation in the area of gender equality is mostly individually-based, non- institutional and scattered. Both the British and German cases touch the question of the critical role of societal actors on controversial issues such as gender equality.

The French case has particularly confirmed the significance of the complex balance between contrarian impulses, on the one hand, and favourable forces, on the other. France is a unitary state, with a closed political system, which does not favour interest intermediation. In addition, the judicial authority is weak. Moreover, French elitist state feminism seems to have prevented rather than facilitated the emergence of grass roots women's movements. Not least, real access to justice in the field of gender equality is in fact very limited: adjudication and litigation in the field of sex equality are obviously still conceived in the frame of a 'traditional employment law model'. Not only has individual litigation failed to develop but the Community 'acquis' in the field of gender equality has not been integrated by the institutions or the social partners. The absence of a sound gender equality forum as well as the rather 'user-unfriendly' character of the existing channels for litigation are necessarily detrimental to gender equality litigation. There certainly are few incentives for litigants to bring gender equality cases before courts.

Though various and contrasted, these examples all point to the complex and somewhat 'messy' dynamics of this new supranational (judicial) public policy space. The judicial transformation of gender equality politics in a supranational direction is uneven, incremental and patchy. It is the locus of an on-going interplay between favourable conditions and incentives for the expansion of judicial politics in the field of gender equality, on the one hand, and contrarian impulses and conflict structures, on the other. There is no need to remark that the agency / structure problematique is especially salient. It would be particularly interesting to further explore the intervening variables that partake in the variations and diversity of judicial politics in the European Union. It is high time that studies on the impact of legal integration took this dimension seriously.

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Notes

(*) An earlier version of this paper was presented at the workshop on "Devolution and Social Policy", Sponsored by Brandeis Centre for German and European Studies, March 12-13, 1999, at Brandeis University, Waltham, Massachussets.

(1) On this see Proceedings of the Court of justice and of the Court of First Instance, Luxembourg, Press and Information Division of the ECJ and Annual report of the Court, Luxembourg, Press and Information Division of the ECJ.

(2) This term refers to the configuration of opponents which have the capacity to limit, undermine or repress mobilisation in the field of sex equality.

(3) The preliminary ruling procedure, based on Article 177 of the EC Treaty, enables a national judge to refer questions of interpretation of Community law to the ECJ during the proceedings of a national trial. Interaction between the Community judicial arena and national ones cannot be entirely assessed through the number of preliminary rulings. The following example is rather illustrative: Spanish judges have not resorted to this procedure in the field of sex equality but they frequently make reference to Community law and jurisprudence in their decisions. Differently, French judges have used the preliminary ruling procedure on three occasions but they hardly refer to Community sources in their decisions. Preliminary rulings do nevertheless provide a sound and verifiable indicator of the nature of the relationships between Community judges and national ones.

(4) To date, 32 preliminary cases have been brought by the United Kingdom. By contrast with the exceptional situation of sex equality cases, British courts have exceptionally low rates of participation in the preliminary ruling procedure in terms of their population base. UK litigants are only hyper-active in the social field with the exceptional percentage difference of 17.54%. (Stone Sweet and Brunell, 1998, 84-7).

(5) To date, 35 preliminary rulings have been brought by Germany before the ECJ. Germany exhibits low activity in the social field (-6, 28%) whereas it is hyper-active in agriculture (13.54%) and external policy (15.8%). As far as the extent to which each member state accounts for the share of all European litigation in the social field (Articles 117-122 EEC), German references, like British ones, reach 24%. Whereas UK total references in EU amounts to 6%, German total references amount to 30%. (Stone Sweet and Brunell, 1998, 84-7).

(6) The concept of indirect discrimination developed by the Court has been a powerful weapon in the hand of part-time workers, predominantly women to the extent that it constitutes nearly 70% of the German preliminary references.

(7) Sex equality provisions in the French legislation date back to 26 October 1946 since the preamble of the French Constitution held that women were guaranteed in all fields equal rights to men.

(8) During the period 1983-1993, the Cour de Cassation decided four cases relative to equal value, two handled by the Criminal Chamber and two dealt with by the Social Chamber. Cass. Soc. 16 March 1989; Cass. Soc. 19 February 1992; and Cass. Crim. 31 May 1988; Cass. Crim. 6 November 1990.

(9) Only 3 preliminary rulings have been brought by France. While France's total preliminary references reach 17% of the share of all European litigation, it exhibits a percentage of 4% in the social field. French litigants are over-active in the field of competition (13.72%), for instance, their activity in the social domain amounts is (- 12,90%).

(10) Le Monde, 5. 11.1997.

(11) Access to policy decisions includes both the formal and informal channels to influence political decisions via direct participation, or indirect means such as lobbying or litigation. It can be assessed on a large scale ranging from open to closed.

(12) It refers to an institutional strength.

(13) The geographical origin of German preliminary rulings is interesting, most references being issued from North- West Germany. In the 1980s, four of the 6 references on gender issues came form Hamburg and Oldenburg. In the overall period, 20 references out of the 35 total German references have been made by Niedersachen, Bremen, Schleswig-Holstein, and not least Hamburg, whose number of references amount to 11.

(14) Generally, all the EU member states provide systems of legal aid for equality law litigants. Nevertheless, this financial assistance is often set at extremely low levels of remuneration since there is an underlying presumption that unions will support worthwhile complaints by their members. Furthermore, legal aids levels in the sex equality cases are certainly not comparable to those available in other civil proceedings.

(15) Whereas the situation varies from one country to another, no member states has introduced measures to provide for the amendment of discriminatory clauses of collective agreements. Courts in many member states do not have the power even to declare a discriminatory clause to be a nullity and in others a declaration of nullity is only inter pares.

(16) In some Länder, however, if an interest group has already been involved in the administrative procedures and is dissatisfied with the outcome, it may litigate in the administrative courts against the administrative authority. It seems nevertheless that such groups do not have standing in private law actions.

(17) Social security cases are being handled by specialised jurisdictions and are subject to legal aid.

(18) These labour courts hear private law actions by private sector and some public sector workers. Collective disputes are thus handled by the Tribunal d'Instance (TI), which is a jurisdiction with a unique judge, and the Tribunal de Grande Instance (TGI), a collegial jurisdiction..

(19) Cases relating to social security come before a specialised jurisdiction, the 'Tribunal des affaires de sécurité sociale'.

(20) In the procedure before the Prud'Hommes parties are theoretically held to appear in person. They can be assisted by a lawyer, their partner, a representative of a trade union, an employee or an employer of the same branch of activities. Representation before courts of appeal or the Cour de Cass. are not compulsory.

Working Papers of the Robert Schuman Centre
Robert Schuman Centre