Limits of the classic method: Positive action in the European Union after the new equality Directives

Article abstract:

A rather traditional version of the equality paradigm, based on individual rights and identity-neutral justice, has so far controlled the ECJ's decisions on positive action for women in the workplace. The same paradigm inspires the new equality directives, and will probably continue to guide the Court in the scrutiny of States' positive action measures in favour of racial, ethnic or religious groups. Against this trend, this article advocates a drastic revirement in the supranational adjudication of positive action disputes, leading to broader State autonomy in the experimentation of new formulae for the mainstreaming of marginalised groups. Alternative forms of European governance are apt to ensure, better than supranational judicial review, the co-ordination of national policies in this respect.

The argument builds upon three analytical pillars: a) a critique of the ECJ's positive-action case law, based on the Court's over-reliance on the prescriptive power of the group/individual rights dichotomy; b) a re-conceptualisation of positive action as identity-based redistribution. Rather than exceptional aberration from the canon of individual equality and blind justice, positive action can be conceived of as one among many forms of allocation of resources in favour of identity-defined groups; c) a collection of examples of identity-based redistribution, sharing the essence, if not the form, of positive action. These examples show how measures targeting ethnic or religious groups for redistributive purposes are not at all new or uncommon in both national and supranational policies. They are natural adaptations of welfare canons to the diversity of social landscapes. The dominant rhetoric of identity-blind justice fails to capture such realities and thwarts the debate on the problems of a multicultural Europe.