Editorial: Mainstreaming Equality in EU Law and Beyond

1. Introduction

This Special Issue addresses the topic of mainstreaming equality. Put simply, mainstreaming equality entails that all policy fields must take a core principle into account, namely equality.¹ The concept and practice of mainstreaming is extensively studied in political science literature, mostly from a gender perspective.² The analysis has turned on policy instruments, institutions, and political actors. However, there is much less EU legal literature studying the concept of mainstreaming,³ and hardly any literature beyond the fields of EU gender equality and non-discrimination law as such. The authors who participated in this project find the core idea that an equality perspective should be an integral part of all law- and policymaking compelling, and worth investigating further from various legal perspectives.

Section 2 of this editorial discusses the origins of the concept of mainstreaming and the ways in which it has further developed in EU law over the past three decades. Most of the progress has been made in relation to gender equality, although even here there is still a world to win. Mainstreaming equality is, however, greatly underdeveloped in other areas. Section 3 will touch upon the high aspirations that exist for the concept – both in scholarship and in official EU policy – and the difficulties of putting the concept into practice. Section 4 concludes the editorial by introducing the articles in this Special Issue, and briefly reflecting on some overarching themes.

2. The origins of the concept of mainstreaming and legal basis in EU law

The origins of the concept of equality mainstreaming are in the international women’s rights movement, and the practice of mainstreaming has been transnational from the beginning.⁴ The term appeared for the first time in international texts concerning the role of women in development following the United Nations Third World Conference on Women held in Nairobi in 1985. At the Fourth World Conference on Women, held in Beijing in 1995, international commitment to gender mainstreaming was formalized in the Beijing Declaration and Platform for Action. After some years of preparation,⁵ and following the Beijing Conference, the European Commission adopted gender mainstreaming as official policy with the 1996 Communication on ‘Incorporating Equal Opportunities for Women and Men into all Community Policies and Activities’.⁶

There is no uniform definition of gender and/or equality mainstreaming in EU law or policy. The European Institute for Gender Equality (EIGE) refers to the definitions by the Council of Europe and the United Nations Economic and Social Council (ECOSOC).⁷ The ECOSOC definition of 1997 is as follows:

The 1998 Council of Europe definition in particular has been influential, prepared for the Council of Europe by a ‘Group of Specialists on Mainstreaming’, and it holds that:

Verloo, who was the chair of the Group of Specialists, explains that this definition ‘positions gender mainstreaming as a process, a process of changing policy routines’.¹⁰

Around the same time, the concept was introduced in EU primary law with the 1997 Treaty of Amsterdam which provided, in Article 3(2) EC, that ‘In all the activities referred to in this Article, the Community shall aim to eliminate inequalities, and to promote equality, between men and women’. With the inclusion of this mainstreaming provision, the Treaty of Amsterdam constitutionalized a much more proactive approach to equality on the part of the Community.¹¹ EU equality law then officially became three-dimensional,¹² consisting of (1) anti-discrimination; (2) positive action (Article 141(4) EC);¹³ and (3) gender mainstreaming. At the same time, the Treaty expanded the discrimination grounds on which the EU could take action from sex to also include racial or ethnic origin, religion or belief, disability, age and sexual orientation (Article 13 EC, now Article 19 TFEU).

The adoption of Article 3(2) EC has been described as a ‘watershed’ moment, as it entails a commitment to a (potentially) transformative strategy.¹⁴ By committing to mainstreaming, the EU recognizes that legislation and litigation are not enough to tackle structural inequalities.¹⁵ Ashiagbor has remarked that ‘[m]ainstreaming … presupposes a “hybrid” approach to regulation, which combines “old governance” mechanisms such as directives with new governance methods, such as the adoption of ambitious employment targets for women or targets on the provision of childcare’.¹⁶

Currently the obligation to mainstream equality is laid down in Articles 8 and 10 TFEU, which form part of the ‘horizontal clauses’.¹⁷ Article 8 TFEU covers gender mainstreaming and is largely similar to Article 3(2) EC already quoted above: ‘In all its activities, the Union shall aim to eliminate inequalities, and to promote equality, between men and women’.¹⁸ Article 10 was added with the Treaty of Lisbon, which entered into force in 2009, and includes a wider commitment to combating discrimination on six grounds, adding that: ‘in defining and implementing its policies and activities, the Union shall aim to combat discrimination based on sex, racial or ethnic origin, religion or belief, disability, age or sexual orientation’. Admittedly these provisions establish obligations on the Union, not on the Member States.¹⁹ Yet these provisions entail that combating discrimination is relevant to all areas of EU law, even in the areas where there are no specific equal treatment provisions – and even in the areas that one might not necessarily associate with equality, such as competition, agriculture, and commercial policy (Article 3(1) EC).

3. High aspirations but difficult to put into practice

The ultimate goal of mainstreaming equality is of course to achieve equality, as per the ECOSOC definition quoted above. Equality is, however, a deeply contested concept, thereby making mainstreaming also necessarily a contested process.²⁰ Indeed, one of the criticisms that have been levelled at the EU’s mainstreaming efforts is that it is not clear what kind of equality they seek to achieve.²¹ In the 1990s Rees distinguished three main models of gender equality which mainstreaming aims for: equality as sameness; equality as difference; and equality as transformation.²²

Officially, EU institutions seek to mainstream multiple dimensions of equality. The EU Gender Equality Strategy 2020–2025 (GES), for example, uses highly ambitious language when it comes to gender mainstreaming, stating that:

Thus, the GES recognizes that core EU issues all have a gender dimension. The stated aim to redistribute power, influence and resources, while promoting fairness and creating opportunities, refers to multiple dimensions of equality.²⁴

However, it has proved difficult to bring the transformative aspirations of equality and diversity mainstreaming into practice, as this Special Issue will also show.²⁵ Considerable confusion continues to exist as to what mainstreaming precisely means and who is responsible for implementing it.²⁶ Concerning the EU institutions, scholars have found that implementation of gender mainstreaming is uneven across the various Directorates-General of the European Commission,²⁷ with the market-oriented Directorates-General less receptive than, for instance, the Directorate-General for International Partnerships (DG INTPA)²⁸ – which also raises the issue of (in)coherence between internal and external action. Moreover, mainstreaming beyond gender, taking a holistic and intersectional perspective, remains difficult.²⁹ Mainstreaming is at risk of becoming a box-ticking exercise rather than a substantive requirement.³⁰ What is more, equality mainstreaming tends to lose out against other priorities particular when these are constructed as ‘crises’, such as (restricting) migration and climate change.³¹

4. The articles in this Special Issue and cross-cutting themes

While the contributions in this Special Issue vary in form and focus, they have in common that they reflect on the challenges of mainstreaming equality in different areas of law. Several of the articles identify EU law as both part of the problem and of the solution, exploring the ambivalent role which law can play in both maintaining (or, in the case of migration, creating) and reducing inequality.

Frans Pennings and Sonja Bekker examine how equality can be streamlined in employment relationships, focusing on improving the position of self-employed persons. In their article entitled ‘The Increasing Room for Collective Bargaining on Behalf of Self-employed Persons’, they take Principle 5 of the European Pillar of Social Rights (EPSR) as the starting point.³² Pennings and Bekker argue that this is a mainstreaming provision, streamlining as it does equality in employment regardless of the type of employment relationship. Asking how equality can be realized in practice, the article then investigates the potential of collective bargaining in realizing a better position for the self-employed. Pennings and Bekker identify EU competition law as an obstacle in this regard. Using an innovative socio-legal method, which included interviews, they are cautiously optimistic and consider that the possibilities of realizing decent working conditions for the self-employed have increased.

In ‘Fair Working Conditions for Workers Providing Informal Care for the Elderly in Poland and in the Netherlands’, Agnieszka Furmańska-Maruszak and Susanne Heeger also depart from the EPSR, in particular Principle 9 covering ‘fair working conditions in balancing work and life’. The authors zoom in on a particular group of workers which is numerically quite large,³³ but which has not received sustained attention in legal scholarship, namely people (more often women than men, mostly between the ages of 45–65) who combine paid employment with unpaid care for elderly people. They analyse to what extent EU law and policy facilitate fair working conditions for this group in Poland and the Netherlands. The main EU instruments in this regard are the EPSR and the European Care Strategy³⁴ (both soft law instruments) and the Work-Life Balance Directive.³⁵

In ‘Gender Quota for Corporate Directors: a Task for the Union? The revival of the Directive on Gender Balanced Company Boards’, Albertine Veldman shines her light on a very specific employment area where inequalities continue to exist, namely corporate boardrooms. After 10 years of negotiation, the EU recently adopted the Gender-Balanced Company Boards Directive.³⁶ Of the four articles in this Special Issue, this one is the closest to EU equality law in the narrow sense, as the Gender-Balanced Company Directive is based on Article 157(3) TFEU. Veldman welcomes the Directive because it may help to break the glass ceiling for women in the corporate world and thus further the mainstreaming of gender equality in employment by achieving a ‘critical mass’ of women in decision-making positions. She points out that ‘[u]nderlying the discussions about the need for European legislation on women on company boards are interesting questions relating to the concepts of equality and subsidiarity in the context of Union law’. Veldman argues that the Directive does fit the tasks and competences of the Union, implementing as it does equality between women and men – one of the Union’s core aims. She provides a detailed analysis of the EU legal framework on positive action in employment, most of which consists of Court of Justice of the European Union (CJEU) case law which is quite old, and comes to the conclusion that the new Directive does not really push the equality concept much further.

The final article in this Special Issue covers another area where inequalities are evidently pressing, namely migrants’ access to social benefits. In ‘Migrants’ Equal Access to Social Benefits under EU law: Fragmentation and Exclusion during the Covid-19 Crisis in Italy’, Virginia Passalacqua and Lorenzo Grossio are critical of the lack of clear and coherent criteria for third-country nationals’ equal treatment under EU law. EU law, they argue, creates ‘by-status fragmentation’, by dividing migrants into different categories according to their residence permits and granting highly unequal access to social benefits to these different categories of migrants. This may be exacerbated at the national level, as is the case in Italy the authors argue, creating ‘multilayered fragmentation’. Thus, there appears to be a great need to mainstream equality in the area of migration, but here too the potential of EU law is limited, as both the EU legislature and the CJEU have consistently held that EU non-discrimination law – which prohibits discrimination based on race and ethnic origins – does not apply to discrimination based on nationality.

Taken together, the articles in this Special Issue point to some positive developments. The adoption of the Gender-Balanced Company Board Directive signals a willingness of the EU legislature to take positive action to improve the position of women in employment. Similarly, the adoption of the Work-Life Balance Directive has potential to improve the working conditions of people who combine paid employment with unpaid care for the elderly. Pennings and Bekker show that collective bargaining is a way forward to realizing decent working conditions for the self-employed. The articles in this Special Issue also point to various obstacles to mainstream equality, however. The problem of legal fragmentation is explained in depth by Passalacqua and Grossio. What is more, their contribution illustrates that where EU law itself creates inequalities, the mainstreaming provisions will have limited effect.

Funding Information

I gratefully acknowledge the funding by NWO (VENI 451-17-029 4130).

Competing Interests

The author has no competing interests to declare.