Transforming EU equality law? : on disruptive narratives and false dichotomies

Abstract

With the adoption of the Race Equality Directive (2000/43/EC), the Framework Directive (2000/78/EC) and the Gender Directive on goods and services (2004/113/EC) and their subsequent interpretation by the Court of Justice, the landscape of EU non-discrimination law changed dramatically. At the same time, beyond this legal evolution, an important discursive shift reframed equality as a genuine fundamental right, in opposition to its historical function as a catalyst for market integration. The aim of this article is to critically interrogate what has been presented as the normative transformation of EU equality law in the aftermath of the 2000s. The present article deconstructs this disruptive narrative and contests the conventionally assumed radical dichotomy between market integration and human rights as overarching rationales for the Union’s commitment to equality. It explores the tension between an ambitious fundamental rights rhetoric and the pragmatic fluctuations of the substance of the principle of equality in EU law. It argues that the ‘new’ post-Amsterdam language of rights, under the guise of ‘progress’, covers an actual continuity in the normative grammar of EU non-discrimination law. Arguably, the very normative indeterminacy of equality facilitated its exploitation by different EU actors to advance their own strategic aims. This resulted in a form of hybridity of the principle of non-discrimination, with important consequences in terms of enforceable equality rights and their hierarchy. The demonstration offered here operates at three different levels: the analysis successively focuses on the material and discursive substance of equality, its normative foundations and its operationalization in order to explore the question of the transformation of EU equality law beyond disruptive narratives and false dichotomies.