THE PRINCIPLE OF EQUALITY IN THE COMMUNITY CONTEXT: P, GRANT, KALANKE AND MARSCHALL: FOUR UNEASY BEDFELLOWS?

Abstract

The importance of the principle of equality to the legal order of the European Union has been underlined by four important but contradictory cases: P v. S; Grant v. South West Trains; Kalanke and Marschall. These cases demonstrate various attempts by the Court to come to terms with what is meant by equality and to decide what protection should be provided by Community law. These, and earlier cases, offer various perspectives on the principle of equality. First, equality can be seen as a rallying cry, a political slogan but little else. Second, equality is a societal goal, a general aspirational principle of citizenship which may serve to inform specific legislative provisions, in particular non-discrimination, but otherwise has no legal force. Third, equality is a general principle of law which is designed to limit the activities of the Community legislature. Fourth, and perhaps most radically, equality is a free-standing, fundamental right enforceable against the Member States, like the equal protection of laws found in the Fourteenth Amendment of the US Constitution, and even against "private" employers. While it is possible to see elements of the first three perspectives in the Court's jurisprudence, the Court has not embraced the fourth. The article examines these developments and considers how the principles of equality and non-discrimination might be developed in the future.