Saturday, 23 February 2008

EU TFEU: Gender equality

A new European political star was born. In retrospect the defining moment must have been when she addressed a packed audience at her final election rally with these resounding words:

If I am elected, I am going to do my utmost to repeal paragraph 1 of Article 3, leave paragraph 2 unnumbered and replace the words ‘the activities referred to in this Article’ by ‘its activities’.

[Wild cheers.]

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Am I pulling your leg? Yes and no.

No politician in her right mind would address even her most devoted followers like this.

On the other hand, this is the direct result of the decisions made by the leading lights of European Union politics, the heads of state or government.

Unbelievable, you say. You need proof, do you?

Can there be anything more convincing than the verification offered by the Official Journal on the unanimous agreement of our national leaders?

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Here is what the intergovernmental conference (IGC 2007) had to say in the Treaty of Lisbon (ToL) on Article 3 of the Treaty establishing the European Community (TEC), renamed the Treaty on the Functioning of the European Union (TFEU). See OJ 17.12.2007 C 306/48:

14) Paragraph 1 of Article 3 shall be repealed. Paragraph 2 shall be left unnumbered, and the words ‘the activities referred to in this Article,’ shall be replaced by ‘its activities,’.

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You are excused if you have not grasped their noble intentions. For that we need an excerpt from the current Article 3 TEC (in the latest consolidated version of the TEU and the TEC, OJ 29.12.2006 C 321 E/44-45):

Article 3 TEC

1. For the purposes set out in Article 2, the activities of the Community shall include, as provided in this Treaty and in accordance with the timetable set out therein:

(a) the prohibition, as between Member States, of customs duties and quantitative restrictions on the import and export of goods, and of all other measures having equivalent effect;

(b) a common commercial policy;

(c) an internal market characterised by the abolition, as between Member States, of obstacles to the free movement of goods, persons, services and capital;

(d) measures concerning the entry and movement of persons as provided for in Title IV;

(e) a common policy in the sphere of agriculture and fisheries;

(f) a common policy in the sphere of transport;

(g) a system ensuring that competition in the internal market is not distorted;

(h) the approximation of the laws of Member States to the extent required for the functioning of the common market;

(i) the promotion of coordination between employment policies of the Member States with a view to enhancing their effectiveness by developing a coordinated strategy for employment;

(j) a policy in the social sphere comprising a European Social Fund;

(k) the strengthening of economic and social cohesion;

(l) a policy in the sphere of the environment;

(m) the strengthening of the competitiveness of Community industry;

(n) the promotion of research and technological development;

(o) encouragement for the establishment and development of trans-European networks;

(p) a contribution to the attainment of a high level of health protection;

(q) a contribution to education and training of quality and to the flowering of the cultures of
the Member States;

(r) a policy in the sphere of development cooperation;

(s) the association of the overseas countries and territories in order to increase trade and promote jointly economic and social development;

(t) a contribution to the strengthening of consumer protection;

(u) measures in the spheres of energy, civil protection and tourism.

2. In all the activities referred to in this Article, the Community shall aim to eliminate inequalities, and to promote equality, between men and women.

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What a delightful way to refresh our memories concerning the existing activities of the European Community (EC), rewritten elsewhere in the Lisbon Treaty.

Having scrapped paragraph 1 and eliminated the number from paragraph 2, we seem to end up with the following:

Article 3 TFEU (ToL), to be renumbered Article 8 TFEU

In all its activities, the Union shall aim to eliminate inequalities, and to promote equality, between men and women.

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We have a sentence which makes sense. Rather noble and delightful in the end, don’t you agree?

However demanding the quest for equality, one could almost say of the IGC 2007: Easier done than said.

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We take a look at the intermediary stages, with the European Convention and its draft Treaty establishing a Constitution for Europe, under Title I Clauses of general application (OJ 18.7.2003 C 169/29):

Article III-2

In all the activities referred to in this Part, the Union shall aim to eliminate inequalities, and to promote equality, between men and women.

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We turn to the Treaty establishing a Constitution for Europe, where the corresponding Article is (OJ 16.12.2004 C 310/55):

Article III-116

In all the activities referred to in this Part, the Union shall aim to eliminate inequalities, and to
promote equality, between women and men.

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We have seen that we have an unbroken line of provisions from the current TEC, via the draft Constitution and the Constitution until the Lisbon Reform Treaty.

Article 3 TFEU (ToL) addresses all of the institutions and all of the activities of the EU.

Eliminating gender inequality (sex discrimination) is a general principle of Union law.

Promotion of equality requires positive action and secondary legislation.



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Domestic violence

The Lisbon Treaty takes up a third aspect of gender equality at a political level.

The Final Act of the Treaty of Lisbon contains the relevant Declaration 19, which the IGC 2007 took over word for word from the Constitutional Treaty (where it was numbered 13. Declaration on Article III-116). See OJ 17.12.2007 C 306/255:

19. Declaration on Article 3 of the Treaty on the Functioning of the European Union

The Conference agrees that, in its general efforts to eliminate inequalities between women and men, the Union will aim in its different policies to combat all kinds of domestic violence. The Member States should take all necessary measures to prevent and punish these criminal acts and to support and protect the victims.

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Part and parcel of the EU legal system, gender equality is something every acceding country has to buy into.


Ralf Grahn