1. Competences of the “Union” and Sex Equality: A Comparative Look at the European Union and the United States Barbara Havelkova Dubrovnik; April 2009

2. 1. How does a “federal” system impact gender equality (principle/right)? 2. Who is obliged to observe it? 1. Negative freedom 2. Center/units/individuals (vertical) 3. Legislative/executive/judiciary (horizontal) 3. Is anyone obliged to counteract its breach? 1. Positive obligation on the government (central/state) 2. Should you? 4. Do you have to power/competence to do so? 1. Secondary legislation 2. Can you?

3. Content  Intro of trajectories  Constitutional right to gender equality  Construction of legislative competences  Secondary legislation (statutory rights)  Judicial review  Discussion

4. Intro  US Special position of race Special position of race  EU Special position of sex Special position of sex (Nationality – a different story – economic rights of movement – trans-border) (Nationality – a different story – economic rights of movement – trans-border)

5. Constitutional rights  US 1868 Fourteenth Amendment Equal Protection Clause binds the states 1868 Fourteenth Amendment Equal Protection Clause binds the states 1791 Due Process Clause of the Fifth Amendment binds the Union 1791 Due Process Clause of the Fifth Amendment binds the Union  EU Case-law-based fundamental right and principle Case-law-based fundamental right and principle

6. Issues  US Is there a positive obligation on the government? (DeShaney case) Is there a positive obligation on the government? (DeShaney case) Does Constitution bind private actors? (Shelley v. Kraemer) Does Constitution bind private actors? (Shelley v. Kraemer)  EU Center bound it all its activities (but standard of scrutiny minimal) (Rinke) Center bound it all its activities (but standard of scrutiny minimal) (Rinke) States are bound ““within the scope of Community law” (Mangold, Bartsch) States are bound ““within the scope of Community law” (Mangold, Bartsch) Horizontality? (Mangold, Bartsch) Horizontality? (Mangold, Bartsch)

7. “Scope of Community Law”  AG Sharpston in Bartsch (69) 1. implement EC law 2. invoke some permitted derogation under EC law 3. otherwise fall within the scope of Community law because some specific substantive rule of EC law is applicable to the situation -> MEMBER STATES ARE NOT BOUND BY THE EUROPEAN EQUALITY PRINCIPLE THE SAME WAY THE US STATES ARE BOUND BY XIVTH AMENDMENT!

8. Charter?  Art. 51 (1) EUCFR: "The provisions of this Charter are addressed to the institutions, bodies and organs of the Union with due regard for the principle of subsidiarity and to the Member States only when they are implementing Union law".

9. Competences  US Commerce Clause & XIV Amendment Commerce Clause & XIV Amendment Violence against Women Act? (United States v. Morrison)Violence against Women Act? (United States v. Morrison)  EU The counterpart of the Interstate Commerce Clause in the EC Treaty (Article 100; today 94) & the substantive equal pay Article 119 (today 141) OR the “residual power” Article 235 (today 308) The counterpart of the Interstate Commerce Clause in the EC Treaty (Article 100; today 94) & the substantive equal pay Article 119 (today 141) OR the “residual power” Article 235 (today 308) EC kept strictly to economic and social issuesEC kept strictly to economic and social issues

10. Art. 13 TEC  “ ”  “Without prejudice to the other provisions of this Treaty and within the limits of the powers conferred by it upon the Community, the Council, acting unanimously on a proposal from the Commission and after consulting the European Parliament, may take appropriate action to combat discrimination based on sex, racial or ethnic origin, religion or belief, disability, age or sexual orientation.” Limited competence provision Limited competence provision Doesn’t confer any right as such Doesn’t confer any right as such

11. Charter?   51 (2) This Charter does not establish any new power or task for the Community or the Union, or modify powers and tasks defined by the Treaties.   52 (2) Rights recognized by this Charter which are based on the Community Treaties or the Treaty on European Union shall be exercised under the conditions and within the limits defined by those Treaties.

12. Lisbon  Interesting competence development in cross- border crime area  Art. 69 B “by means of directives adopted in accordance with the ordinary legislative procedure […] minimum rules concerning the definition of criminal offences and sanctions in the areas of particularly serious crime with a cross-border dimension” aiming among others at “trafficking in human beings and sexual exploitation of women and children”

13. Secondary legislation  US Statutes (Civil Rights Act) Statutes (Civil Rights Act)  EU Directives Directives

14. Judicial review  US Certiorari – not all cases reach to Supreme Court Certiorari – not all cases reach to Supreme Court  EU Preliminary questions procedure Preliminary questions procedure

15. Addresses  US the federal government (by virtue of the Fifth Amendment), the federal government (by virtue of the Fifth Amendment), the states (through the Fourteenth Amendment) the states (through the Fourteenth Amendment) individuals directly (through the Civil Rights Act) individuals directly (through the Civil Rights Act)  EU the center binds itself (case-law based fundamental right), the center binds itself (case-law based fundamental right), the states (the fundamental right in implementing EC law; Article 141 and the directives), the states (the fundamental right in implementing EC law; Article 141 and the directives), individuals (both directly by virtue of Article 141’s horizontal direct effect, and by national law implementing the directives) individuals (both directly by virtue of Article 141’s horizontal direct effect, and by national law implementing the directives)

16. Discussion & Questions  Barbara.havelkova@gmx.de