Judicial Rulemaking and the Institutionalization of European Union Sex Equality Policy

Rachel A. Cichowski

in The Institutionalization of Europe

Published in print August 2001 | ISBN: 9780199247967
Published online April 2004 | e-ISBN: 9780191601088 | DOI:
 Judicial Rulemaking and the Institutionalization of European Union Sex Equality Policy

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An examination is made of the impact of the European Court of Justice (ECJ) on the institutional evolution of European Union sex equality policy, following the provision in the Treaty of Rome (Art. 119 EEC, now Art. 141) that men and women would receive equal pay for equal work – a provision aimed at protecting businesses from unfair competition. This same provision now bestows a positive right on individuals throughout the Member States, and is a judicially enforceable right that remains the backbone of an ever-expanding European social-justice policy. Over time, strategic action on the part of litigants and their lawyers and the ECJ’s judicial rule-making capacity has constructed a supranational space in which women can not only demand the right to equal pay but can also receive protection as pregnant workers. This dynamic process is the focus of the analysis presented, and involves an examination of three basic mechanisms of institutional evolution: the process by which self-interested private litigants and their lawyers are able to activate the European Union (EU) legal system through the Art. 177 (now Art. 234) procedure (which allows national individuals to invoke EU law before national courts); the ECJ’s authoritative interpretation of Art. 119 (focusing on how it became directly effective in national legal systems); and the feedback effects of this judicial rule-making in terms of how the litigation environment has been changed, and the EU and national-level policy consequence. In particular, the latter are traced through the development of EU pregnancy and maternity rights.

Keywords: equal pay; European Court of Justice; European policy; European Union; European Union legal system; institutional evolution; institutionalization; litigation; maternity rights; national legal systems; national policy; pregnancy rights; sex equality; social-justice policy; supranational policy; Treaty of Rome

Chapter.  12421 words. 

Subjects: European Union

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