Reconceptualising European Equality Law: A Comparative Institutional Analysis

European Union Law › Discrimination Law

Reconceptualising European Equality Law: A Comparative Institutional Analysis

By Johanna Croon-Gestefeld
Hart Publishing February 2017

Specifications

ISBN-13
9781509909667
Publisher
Hart Publishing
Publication
February 2017
Format
Hardback
Jurisdiction
U.K. ? Countri(es) for reference only

Also available as

Paperback

Details

This important new book seeks to widen the understanding of the principle of equality within European law. Firstly, it deconstructs the European Court of Justice's adjudication of cases in the field. It then explores how the Member States' courts decide on the question of equality.

This detailed rigorous research allows the author to argue for a reconceptualised equality doctrine. Such an adaptation, the author argues, will provide judges, practitioners and academics with the tools to balance institutional considerations against legalist interpretation.

Theoretically ambitious, while grounded in practical application, this is a significant restatement of one of the key principles of European law: the equality doctrine.

Table of Contents

1. Introduction
I. Equality: A Fundamental Principle Based on not so Stable Fundaments
II. The Need for Reconceptualising Equality Law or the Rationalist Human Rights Paradigm
III. EU Law as the Laboratory of Constitutional Theory
IV. The Institutional Choice Approach to EU Equality Law

2. The Notion of Equality
I. Why Equality?
II. What Kind of Equality?
III. The Relationship of Equality and Non-discrimination

3. Equality Testing: Different Kinds of Scrutiny
I. Three Standards of Scrutiny
II. Traditional Interpretive Explanation
III. Changing Perspectives: A Comparative Institutional Explanation
IV. Conclusion

4. Differential Treatment of EU Citizens
I. Non-discrimination on Grounds of Nationality: A Leitmotiv of the TFEU
II. Article 18(1) TFEU: A Relative Right to Equal Treatment
III. Challenges to the Equal Treatment of EU Citizens
IV. Equal Treatment of EU Citizens: An Institutional Choice Reconstruction
V. Conclusion

5. Reverse Discrimination
I. Reverse Discrimination: Its Definition, Egalitarian Tune and Relevance
II. The European Court of Justice's Handling of Reverse Discrimination
III. The Fundamental Boundaries Concern-or Institutional Choice in the Supranational Context

6. Affirmative Action for Women
I. The European Union Jurisprudence
II. The American Experience
III. Translating the American Experience to the European Debate
IV. Comparative Institutional Analysis of Affirmative Action

7. Conclusion
I. Breaking down the Divides
II. The Four Conceivable Relations between Equality Review and Institutional Choice
III. More Coherence through Doctrinal Adaptation
IV. Summary of the Thesis in Eight Points
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