The Treaty of Rome is forty years old. For forty years its very famous article 119 has served as the basis for the European construction of the principle of equality between men and women. Seven directives, five recommendations, three decisions, twelve resolutions, the implementation of action programs, the adoption of codes of conduct, and the large number of precedents established by the Court of Justice have allowed us to make the transition from the principle of equal pay to the principles of equal treatment and equality of opportunity in the labor market and have had a direct and determining influence on all the progress that has been made toward those goals in each member state. There is, however, a big difference between the recognition of a right and its implementation, and the legal advances that have been made are themselves under threat.
Poverty is being feminized in all the member states. 70 percent of the 36 million Europeans living below the poverty line are women; 55 percent of the chronically unemployed are women, as are 90 percent of single parents, who are particularly affected by extreme poverty, and 80 percent of those in part-time work, most of them in precarious jobs that are not covered by the social welfare system. Discrimination in the workplace is exacerbated by structural economic changes, and the new jobs are being created by cutting-edge technologies. Traditional values and prejudices based upon the archaic principle of a negative and preegalitarian difference between the sexes are projecting new discriminations for the future, in addition to those values and prejudices that have never changed. Another alarming sign: the budget for the fourth medium-term community action program on equal opportunities for women and men has been cut by half by the council, and the third antipoverty program has been tabled.
For a few years now, a certain interpretation of the principle of equality between men and women on the part of the Court of Justice of the European Communities has been working against the interests of women. In the name of an abstract concept of equality, the court has challenged national measures aimed at compensating for or limiting the inequalities suffered by women as a result of their activities as mothers and their responsibilities for children and other vulnerable individuals. The recent and very controversial Kalanke ruling,
1 as many will recall, has placed drastic restrictions on affirmative action. The proposed amendment of the 1976 directive on equal treatment of men and women, which was put before the European Commission as a result of that ruling in an attempt to clarify its implications, tends in fact to ratify it. The Committee on Women’s Rights has persuaded the European Parliament to postpone discussion of this proposal until the findings of the Intergovernmental Conference have been made public.
The treaty is the Union’s primary and foundational law, the basis of its values and its identity. Now, as things stand, everyone agrees that the legal basis for equality is quite inadequate. Women do not appear in the treaty as subjects of law, and the principle of equality is restricted to a mere social right. Hence the extreme fragility of the gains that have been made and hence the worsening position of women throughout the Union. The European Parliament’s Committee on Women’s Rights sought to see the principle of equality between men and women enshrined as a fundamental right at the heart of the European project, which would make it a decisive contribution to the democratization of the Union and of the countries that are about to join it.
We have therefore defined the inclusion in the treaty of a broad and coherent legal basis for equality between men and women as the highest priority; this would allow its implementation in concrete situations. For my own part, I would add that equality must be discussed in the light of the irreducible difference that exists between men and women, for the latter are still responsible for gestation and, to a large extent, for mothering. This positive difference, which is necessary, fecund, and vital, must not lead to discriminations, but it must not be denied, either. As matters stand, instead of adding up the various forms of wealth produced by women—procreation, domestic labor, professional activities—the economy deducts them all from women’s paid work and their future in the workplace.
Recognizing that equality is a basic right and obliging the Union to adopt positive measures in all domains, ensuring in particular that women are part of the decision-making process on equal terms with men, would be no more than minimal reparation for the prevailing injustice and a very small step toward recognizing the debt that is owed to women.
At the close of the Amsterdam summit, equality between men and women became one of the community’s missions, as introduced by articles 2 and 3 of the treaty. This is a first step beyond the restrictive framework of article 119, extending its field of application to all community actions and policies, but it does not go so far as to make equality a basic right in explicit terms.
We had further recommended that the treaty should recognize the principle of “parity-based democracy” elaborated by the Council of Europe. The increased participation of women in the decision-making process is a basic element of the necessary democratization of European institutions. The European Parliament stressed the need for such democratization during the preparatory session of the intergovernmental conference.
2 The recommendation that was unanimously adopted by the council on December 2, 1996, further stressed the need for democratization. Only parity can bring about the balanced participation of men and women in the government of the world; it is both an assertion of equality and a promise of something more than equality.
Qualitative parity implies a project for women and guarantees the representation of their specific interests. It is highly regrettable that neither the Irish presidency, the Dutch presidency, nor the member states have recognized it.
Proposals for affirmative action have also been extremely inadequate. In order to move from de jure equality to de facto equality, positive measures are required. They must be able to be adapted without restriction, and the resulting equality must take precedence over strictly equal treatment in every individual case.
Now, despite the apparent consensus as to the need to recognize the inadequacy of formal equality, and despite the support of the European Parliament,
3 no new provision to this effect has been included in the revised treaty, and this constitutes a major regression. The terms used in the Agreement on Social Policy were simply integrated into article 119; these provide for the nonprohibition of specific advantages intended to promote employment among the underrepresented sex and not the formula “to improve the position of women in the workplace.” This may pave the way for discrimination against women in sectors where they are in the majority.
As for article 119, it now includes the notion of equal pay for work of equal value, but our demand for new and additional provisions covering all domains of social, economic, and family life, as specific goals with respect to access to education and training, working conditions, and the right to social security, was not accepted.
I also regret the fact that the demand put forward by the Committee on Women’s Rights and Parliament that sexism should be condemned on the same grounds as racism has not been satisfied to date. I will mention one victory that makes me particularly happy, however, given my commitments in this area; the struggle against human trafficking has been recognized as a priority for the Union on the same basis as drug trafficking. I greatly regret the refusal to extend the right of asylum to women who are persecuted because of their sex, as the United States and Canada have been doing for several years now.
Although significant progress has been made, it has to be said that the draft treaty falls far short of satisfying our demands, especially where the implementation of real equality is concerned. Many of the priorities we defined—basic rights, parity, positive measures, obligation of result—have at best, and despite the support of the European Parliament, been adopted only partially, not in terms that would allow the spiral of regression to be overturned and become a spiral of progress. There is therefore still a great deal to be done.