Announcements

-Response questions due both Wednesday and Friday this week in quiz section.

The European Court of Justice and Women’s Rights

I. The ECJ and Individual Rights

A. Van Gend en Loos (1963): direct effectB. Costa (1964): supremacyC. Marshall (1986): direct effect of directives

II. From Economic Rights to Women’s Rights

Development of Art. 119 (now Art. 141)

A. French concern for unfair competitionB. Art 141 was inserted into the Treaty for economic reasons, but was placed in the position of having social consequences.

III. Art 141 comes to Life: Defrenne Decisions

A. Background: Test case by an activist lawyer

B. The Defrenne I Decision (1970) -foreshadowed direct effect

(III. Art 141, cont.)

C. The Defrenne II Decision (1976)1. Main Question referred to ECJ:

Is Art 119 directly effective?2. ECJ Decision: Art 119 is directly effective3. Member State Government dissent

IV. ECJ, Gender Equality and Procedural Law

A. Von Colson Decision (1984) - real and effective judicial remedy B. Marshall II Decision (1993) - full compensation

V. ECJ, Gender Equality and Substantive Policy Change

A. Positive Action: Kalanke Decision (1995)1. Background: German Law promoting equally qualified women in under represented occupations is questioned by man who didn’t get the job.2. Question referred to the ECJ:Is the German law in violation of EU Equal Treatment law?

(V. ECJ, Gender Equality A. Positive Action, cont.)

3. ECJ Decision:- if equally qualified women automatically get priority then the German law involves discrimination on grounds of sex (violation of EU law)

4. European Commission and women’s rights community outcry

5. Marschall Decision (1997) -ECJ overturns Kalanke

(V. Substantive Policy Change, cont.)

B. Pregnancy: Webb Decision (1996)1. Background: woman hired to replace pregnant woman becomes pregnant and is fired.2. Questions referred to ECJ:-Is it lawful to dismiss on grounds of pregnancy or whether greater weight should be attached to the reasons she was recruited?

ECJ Webb Decision (1996)Is it unlawful to dismiss Mrs. Webb on the

grounds of pregnancy or should greater weight be attached to the reasons she was recruited?

Given what you know about the general tensions/conflicts in EU legal integration how should the ECJ decide the case? Think about the following issues:

Economic interests vs. social interestsDomestic law (MS interests) vs. EU law (EU

interests)

(V. Substantive Policy Change, B. Pregnancy, cont.)

3. ECJ Decision: Person’s sex was reason for dismissal so the dismissal is in violation of EU law.