Women's Rights, the European Court, and Supranational Constitutionalism

Abstract

This analysis examines supranational constitutionalism in the European Union. In particular, the study focuses on the role of the European Court of Justice in the creation of women's rights. I examine the interaction between the Court and member state governments in legal integration, and also the integral role that women's advocates -both individual activists and groups -have played in the development of EU social provisions. The findings suggest that this litigation dynamic can have the effect of fueling the integration process by creating new rights that may empower social actors and EU organizations, with the ultimate effect of diminishing member state government control over the scope and direction of EU law. This study focuses specifically on gender equality law, yet provides a general framework for examining the case law in subsequent legal domains, with the purpose of providing a more nuanced understanding of supranational governance and constitutionalism.

The asymmetry of European integration, or why the EU cannot be a 'social market economy'

“…Faced with the prospect of haphazard judicial interventions against existing national regulations, and with the threat of Treaty-violation prosecutions launched by the Commission, the relaxation of the unanimity rule to facilitate the adoption of common European standards must have appeared as a lesser evil. This is by now well understood (Stone Sweet, 2003, 2004Alter, 2009;Schmidt, 2009b, forthcoming). What is less obvious, however, is the effect of judicial decisions on the substantive direction of subsequent European legislation.…”

“…At the same time, however, the Court has, from early on, protected the social rights of migrant workers against discrimination on grounds of nationality, and it has expanded the guarantee of equal pay for men and women (Art. 141 ECT) into a workplace-oriented regime of gender equality (Cichowski, 2004). In highly innovative-or even 'artistic' (Hilpold, 2008)-decisions, it has also approximated the status of mobile students to that of migrant workers, and, in the case enforcing access to Austrian universities, 21 it has even ruled that Austrian taxpayers should pay for the education of German medical students who fail to qualify under numerus-clausus requirements at home.…”

The European Court of Justice, State Non-Compliance, and the Politics of Override

“…3 Variations on the method have been applied relatively systematically, within and across legal-policy domains (e.g., Cichowski 1998;2004;McCown 2003;Nyikos 2000;Stone Sweet 2004). The results have been remarkably consistent.…”

Legitimität im europäischen Mehrebenensystem

“…Dies gilt seit langem für Entscheidungen zur Durchsetzung und Erweiterung der Gleichheit von Männern und Frauen am Arbeitsplatz entsprechend Art. 141 EG (Cichowski 2004 ). Es gilt heute auch für die nicht-arbeitsmarktbezogenen Rechte der EU-Bürger auf Freizügigkeit und Nichtdiskriminierung aus Gründen der Nationalität (Wollenschlä-ger 2007 ).…”