The Principle of Equality in EU Law.

By: Rossi, Lucia SerenaContributor(s): Casolari, FedericoMaterial type: TextTextSeries: eBooks on DemandPublisher: Cham : Springer, 2017Copyright date: ©2017Description: 1 online resource (322 pages)Content type: text Media type: computer Carrier type: online resourceISBN: 9783319661377Subject(s): Equality before the law-European Union countries | Equality of statesGenre/Form: Electronic books.Additional physical formats: Print version:: The Principle of Equality in EU LawDDC classification: 342.24085 LOC classification: K1-7720Online resources: Click here to view this ebook.
Contents:
Intro -- Preface and Acknowledgments -- References -- Contents -- Contributors -- Abbreviations -- Part I: Equality and States: Are Some States More `Equal´ than Others? -- Chapter 1: The Principle of Equality Among Member States of the European Union -- 1.1 Introduction -- 1.2 Equality Among States and Sovereignty in International Law and in EU Law -- 1.2.1 The Principle of Equality Among States in International Law -- 1.2.2 The Principle of Equality and International Organizations: The Representation Tests and the Voting Rules -- 1.2.3 How the Principle of Equality Has Evolved Among EU Member States: The `Classic´ Tests of the Representation in the Insti... -- 1.2.4 The Need for a Third Test: The Role of the `Guarantee Institutions´ and the Ability to Ensure the General Interest -- 1.3 The Relation Between the Principle of Equality Among Member States and the Other Fundamental Principles of the European Un... -- 1.3.1 Equality and Uniform Application of the EU Law: Putting Limits on Differentiated Integration -- 1.3.2 The Principle of Equality Among EU Member States: From the Court´s Case Law to the Inclusion in Article 4 TEU -- 1.3.2.1 A Systematic Reading of the Principles Contained in Article 4 TEU: Equality, Conferral, and Sincere Cooperation -- 1.3.2.2 Equality, National Identities, and European Identity -- 1.3.3 Equality and Solidarity -- 1.4 Conclusions: The Principle of Equality in a Union of States with Shared Sovereignty -- References -- Chapter 2: Equality Among Member States and Differentiated Integration in the EU -- 2.1 Introduction -- 2.2 The Many Faces of Equality -- 2.2.1 General -- 2.2.2 Equality as a Principle of EU Law -- 2.2.2.1 A Plethora of References to Equality in the EU Treaties -- 2.2.2.2 Functions of the Equality Principle -- 2.2.2.3 Meaning of Equality.
2.2.2.4 Equality of Member States as a Constitutional Principle of EU Law -- 2.2.2.5 Equality and Solidarity Between the EU Member States -- 2.2.3 Equality as a Principle of International Law -- 2.2.3.1 Sovereign Equality of States -- 2.2.3.2 Equality as a Fundamental Human Right -- 2.2.4 Equality as a Principle of National Constitutional Law -- 2.3 Assessing the Impact of Equality on Differentiation Mechanisms -- 2.3.1 Differentiation at the Level of Primary Law -- 2.3.1.1 Constraints Flowing from EU Law -- 2.3.1.2 Constraints Flowing from International Law -- 2.3.1.3 Constraints Flowing from National Constitutions -- 2.3.2 Differentiation at the Level of Secondary EU Law -- 2.3.2.1 Differentiation Outside the Legal Framework of Enhanced Cooperation -- 2.3.2.2 Differentiation Within the Framework of Enhanced Cooperation -- 2.3.3 Differentiation at the Level of the Member States -- 2.4 Concluding Remarks -- References -- Chapter 3: The Acknowledgment of the Direct Effect of EU International Agreements: Does Legal Equality Still Matter? -- 3.1 Introductory Remarks -- 3.2 The `Functionalist Approach´: Direct Effect as a Tool for Strengthening the Implementation of the EU Equality and Non-disc... -- 3.2.1 The Jurisprudence on Non-discrimination Provisions Enshrined in EU Bilateral Agreements -- 3.3 The `Protective Approach´: When Direct Effect Risks Jeopardising Equality within the EU Legal Order -- 3.4 The General Attitude Towards Direct Effect Stemming from the Most Recent Practice of EU Political Institutions: `No Direct... -- 3.4.1 The Denial of Direct Effect Via International Law -- 3.4.2 The Denial of Direct Effect Via EU Law -- 3.4.3 A Critical Appraisal -- 3.4.3.1 International-Law Remedies -- 3.4.3.1.1 Incorporating Private Enforcement Mechanisms -- 3.4.3.1.2 Individual Remedies Under IHRL -- 3.4.3.2 EU-Law Remedies -- 3.5 Conclusion.
References -- Part II: The Structural Aspects of the Principle of Equality in the EU -- Chapter 4: The Procedural and Institutional Dimension of EU Anti-discrimination Law -- 4.1 Introduction -- 4.2 The Procedural Side of EU Anti-discrimination Law: The First Timid Steps -- 4.3 The Procedural Turn in EU Anti-discrimination Law -- 4.3.1 Access to Judicial and/or Administrative Procedures -- 4.3.2 Partial Shift in the Burden of Proof -- 4.3.3 Victimisation -- 4.3.4 Sanctions, Penalties, Compensation and Reparation -- 4.4 Equality Bodies: The Public Law Model in EU Anti-discrimination Law -- 4.5 Extension of the Institutional Approach to Nationality Discrimination: EU Directive 2014/54 -- 4.6 Conclusion -- References -- Chapter 5: Lessons from the Recent Case Law of the EU Court of Justice on the Principle of Non-discrimination -- 5.1 Introduction -- 5.2 Useful Clarifications Concerning the Definition of the Characteristics That Justify the Prohibition Against Discrimination -- 5.2.1 The UN Convention on the Rights of Persons with Disabilities as a Source for the Definition of Disability -- 5.2.2 The Extensive Interpretation of the Scope of Protected Characteristics: Discrimination by Association -- 5.3 A Test of Comparability That Justifies Certain Instances of Social Progress -- 5.3.1 The Test of Comparability and Direct Discrimination Based on Sexual Orientation -- 5.3.2 Some Widely Accepted Differences in Treatment -- 5.4 Arrangements Concerning the Burden of Proof -- 5.5 The Right of Asylum and Persecution for Sexual Orientation -- 5.6 Conclusion -- References -- Chapter 6: Differentiating Equality? The Different Advancements in the Protected Grounds in the Case Law of the European Court... -- 6.1 Introduction -- 6.2 Non-discrimination on the Ground of Nationality: The Zambrano and Dano Cases -- 6.2.1 Zambrano, or the Vector of EU Citizens´ Rights.
6.2.2 Dano, or the Vector of the Member States´ Prerogatives -- 6.3 Non-discrimination on the Ground of Sex: The Test d´Achats Case -- 6.4 Non-discrimination on the Ground of Race: The Deckmyn and CHEZ/Nikolova Cases -- 6.5 Non-discrimination on the Ground of Sexual Orientation: The Römer, Maruko, and Hay Cases -- 6.6 Non-discrimination on the Ground of Disability: The Glatzel Case -- 6.7 Non-discrimination on the Ground of Age: The Mangold, Bartsch, and Kücükdeveci Judgments -- 6.8 Conclusion -- References -- Part III: Equality in Specific Policy Domains of the EU -- Chapter 7: Equality for Citizens in the EU: Where Did All the Flowers Go? -- 7.1 Two Fundamental Constitutional Elements: Equality and Citizenship -- 7.2 Unequally Treated Citizens? -- 7.2.1 Exceptions, Limitations and Conditions -- 7.2.2 A Preference for Deserving Citizens Rather Than Rotten Apples -- 7.2.3 The Poor Are Always with Us -- 7.2.4 Internal Situations -- 7.3 Problems of Fragmentation and Hierarchy -- 7.3.1 A Variety of Sources -- 7.3.2 Changing Case Law on Access to Benefits -- 7.3.3 Extra Protection Is Only for Workers While in Employment -- 7.3.4 Hard Workers (Usually) Welcome -- 7.3.5 Vertical or Horizontal Effects -- 7.4 An Inclusive Approach to Citizens Within the EU -- 7.5 Concluding Remarks: Reflections on the Achievements of Citizenship -- References -- Chapter 8: Access to Healthcare in the European Union: Are EU Patients (Effectively) Protected Against Discriminatory Practice... -- 8.1 Preliminary Remarks -- 8.2 Discriminations in the Field of Healthcare -- 8.3 The Applicable EU Regulatory Framework -- 8.4 The Principle of Equal Treatment of Persons Irrespective of Religion or Belief, Disability, Age, or Sexual Orientation: Ex... -- 8.5 Combating Single and Multiple Discriminations in the EU: Possible Future Developments -- 8.6 Final Remarks -- References.
Chapter 9: Reverse Discrimination in EU Law: An Internal Market Perspective -- 9.1 Introduction -- 9.2 Reverse Discrimination within the Internal Market -- 9.3 The Original Irrelevance of Reverse Discrimination Under Internal Market Law -- 9.4 The Possible Relevance of Reverse Discrimination: A Cross-Border Hypothetical Test -- 9.5 The Possible Relevance of Reverse Discrimination: The Potential Usefulness Approach -- 9.6 A New Path Towards the Possible Relevance of Reverse Discrimination? The Actual Usefulness Test -- 9.7 The Evolving ECJ Case Law and the Link Between the `Personal´ and the `Market´ Dimension -- 9.8 Conclusion -- References -- Chapter 10: Human Trafficking, Equality, and Access to Victims´ Rights -- 10.1 Introduction -- 10.2 The Existing Legal Framework -- 10.2.1 Overview of the Trafficking Directive -- 10.2.2 Main Features of the Residence Permit Directive -- 10.2.3 Approach of the Victims´ Rights Directive -- 10.3 Critical Analysis of Equality and Access to Victims´ Rights -- 10.4 Final Remarks -- References -- Table of Cases -- Permanent Court of International Justice -- International Court of Justice -- Court of Justice of the European Union (Former Court of Justice of the European Communities) -- General Court of the European Union (Former Court of First Instance) -- European Court of Human Rights -- National Courts -- Belgium -- Czech Republic -- France -- Germany -- Italy -- Portugal -- The Netherlands -- United Kingdom -- Index.
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Intro -- Preface and Acknowledgments -- References -- Contents -- Contributors -- Abbreviations -- Part I: Equality and States: Are Some States More `Equal´ than Others? -- Chapter 1: The Principle of Equality Among Member States of the European Union -- 1.1 Introduction -- 1.2 Equality Among States and Sovereignty in International Law and in EU Law -- 1.2.1 The Principle of Equality Among States in International Law -- 1.2.2 The Principle of Equality and International Organizations: The Representation Tests and the Voting Rules -- 1.2.3 How the Principle of Equality Has Evolved Among EU Member States: The `Classic´ Tests of the Representation in the Insti... -- 1.2.4 The Need for a Third Test: The Role of the `Guarantee Institutions´ and the Ability to Ensure the General Interest -- 1.3 The Relation Between the Principle of Equality Among Member States and the Other Fundamental Principles of the European Un... -- 1.3.1 Equality and Uniform Application of the EU Law: Putting Limits on Differentiated Integration -- 1.3.2 The Principle of Equality Among EU Member States: From the Court´s Case Law to the Inclusion in Article 4 TEU -- 1.3.2.1 A Systematic Reading of the Principles Contained in Article 4 TEU: Equality, Conferral, and Sincere Cooperation -- 1.3.2.2 Equality, National Identities, and European Identity -- 1.3.3 Equality and Solidarity -- 1.4 Conclusions: The Principle of Equality in a Union of States with Shared Sovereignty -- References -- Chapter 2: Equality Among Member States and Differentiated Integration in the EU -- 2.1 Introduction -- 2.2 The Many Faces of Equality -- 2.2.1 General -- 2.2.2 Equality as a Principle of EU Law -- 2.2.2.1 A Plethora of References to Equality in the EU Treaties -- 2.2.2.2 Functions of the Equality Principle -- 2.2.2.3 Meaning of Equality.

2.2.2.4 Equality of Member States as a Constitutional Principle of EU Law -- 2.2.2.5 Equality and Solidarity Between the EU Member States -- 2.2.3 Equality as a Principle of International Law -- 2.2.3.1 Sovereign Equality of States -- 2.2.3.2 Equality as a Fundamental Human Right -- 2.2.4 Equality as a Principle of National Constitutional Law -- 2.3 Assessing the Impact of Equality on Differentiation Mechanisms -- 2.3.1 Differentiation at the Level of Primary Law -- 2.3.1.1 Constraints Flowing from EU Law -- 2.3.1.2 Constraints Flowing from International Law -- 2.3.1.3 Constraints Flowing from National Constitutions -- 2.3.2 Differentiation at the Level of Secondary EU Law -- 2.3.2.1 Differentiation Outside the Legal Framework of Enhanced Cooperation -- 2.3.2.2 Differentiation Within the Framework of Enhanced Cooperation -- 2.3.3 Differentiation at the Level of the Member States -- 2.4 Concluding Remarks -- References -- Chapter 3: The Acknowledgment of the Direct Effect of EU International Agreements: Does Legal Equality Still Matter? -- 3.1 Introductory Remarks -- 3.2 The `Functionalist Approach´: Direct Effect as a Tool for Strengthening the Implementation of the EU Equality and Non-disc... -- 3.2.1 The Jurisprudence on Non-discrimination Provisions Enshrined in EU Bilateral Agreements -- 3.3 The `Protective Approach´: When Direct Effect Risks Jeopardising Equality within the EU Legal Order -- 3.4 The General Attitude Towards Direct Effect Stemming from the Most Recent Practice of EU Political Institutions: `No Direct... -- 3.4.1 The Denial of Direct Effect Via International Law -- 3.4.2 The Denial of Direct Effect Via EU Law -- 3.4.3 A Critical Appraisal -- 3.4.3.1 International-Law Remedies -- 3.4.3.1.1 Incorporating Private Enforcement Mechanisms -- 3.4.3.1.2 Individual Remedies Under IHRL -- 3.4.3.2 EU-Law Remedies -- 3.5 Conclusion.

References -- Part II: The Structural Aspects of the Principle of Equality in the EU -- Chapter 4: The Procedural and Institutional Dimension of EU Anti-discrimination Law -- 4.1 Introduction -- 4.2 The Procedural Side of EU Anti-discrimination Law: The First Timid Steps -- 4.3 The Procedural Turn in EU Anti-discrimination Law -- 4.3.1 Access to Judicial and/or Administrative Procedures -- 4.3.2 Partial Shift in the Burden of Proof -- 4.3.3 Victimisation -- 4.3.4 Sanctions, Penalties, Compensation and Reparation -- 4.4 Equality Bodies: The Public Law Model in EU Anti-discrimination Law -- 4.5 Extension of the Institutional Approach to Nationality Discrimination: EU Directive 2014/54 -- 4.6 Conclusion -- References -- Chapter 5: Lessons from the Recent Case Law of the EU Court of Justice on the Principle of Non-discrimination -- 5.1 Introduction -- 5.2 Useful Clarifications Concerning the Definition of the Characteristics That Justify the Prohibition Against Discrimination -- 5.2.1 The UN Convention on the Rights of Persons with Disabilities as a Source for the Definition of Disability -- 5.2.2 The Extensive Interpretation of the Scope of Protected Characteristics: Discrimination by Association -- 5.3 A Test of Comparability That Justifies Certain Instances of Social Progress -- 5.3.1 The Test of Comparability and Direct Discrimination Based on Sexual Orientation -- 5.3.2 Some Widely Accepted Differences in Treatment -- 5.4 Arrangements Concerning the Burden of Proof -- 5.5 The Right of Asylum and Persecution for Sexual Orientation -- 5.6 Conclusion -- References -- Chapter 6: Differentiating Equality? The Different Advancements in the Protected Grounds in the Case Law of the European Court... -- 6.1 Introduction -- 6.2 Non-discrimination on the Ground of Nationality: The Zambrano and Dano Cases -- 6.2.1 Zambrano, or the Vector of EU Citizens´ Rights.

6.2.2 Dano, or the Vector of the Member States´ Prerogatives -- 6.3 Non-discrimination on the Ground of Sex: The Test d´Achats Case -- 6.4 Non-discrimination on the Ground of Race: The Deckmyn and CHEZ/Nikolova Cases -- 6.5 Non-discrimination on the Ground of Sexual Orientation: The Römer, Maruko, and Hay Cases -- 6.6 Non-discrimination on the Ground of Disability: The Glatzel Case -- 6.7 Non-discrimination on the Ground of Age: The Mangold, Bartsch, and Kücükdeveci Judgments -- 6.8 Conclusion -- References -- Part III: Equality in Specific Policy Domains of the EU -- Chapter 7: Equality for Citizens in the EU: Where Did All the Flowers Go? -- 7.1 Two Fundamental Constitutional Elements: Equality and Citizenship -- 7.2 Unequally Treated Citizens? -- 7.2.1 Exceptions, Limitations and Conditions -- 7.2.2 A Preference for Deserving Citizens Rather Than Rotten Apples -- 7.2.3 The Poor Are Always with Us -- 7.2.4 Internal Situations -- 7.3 Problems of Fragmentation and Hierarchy -- 7.3.1 A Variety of Sources -- 7.3.2 Changing Case Law on Access to Benefits -- 7.3.3 Extra Protection Is Only for Workers While in Employment -- 7.3.4 Hard Workers (Usually) Welcome -- 7.3.5 Vertical or Horizontal Effects -- 7.4 An Inclusive Approach to Citizens Within the EU -- 7.5 Concluding Remarks: Reflections on the Achievements of Citizenship -- References -- Chapter 8: Access to Healthcare in the European Union: Are EU Patients (Effectively) Protected Against Discriminatory Practice... -- 8.1 Preliminary Remarks -- 8.2 Discriminations in the Field of Healthcare -- 8.3 The Applicable EU Regulatory Framework -- 8.4 The Principle of Equal Treatment of Persons Irrespective of Religion or Belief, Disability, Age, or Sexual Orientation: Ex... -- 8.5 Combating Single and Multiple Discriminations in the EU: Possible Future Developments -- 8.6 Final Remarks -- References.

Chapter 9: Reverse Discrimination in EU Law: An Internal Market Perspective -- 9.1 Introduction -- 9.2 Reverse Discrimination within the Internal Market -- 9.3 The Original Irrelevance of Reverse Discrimination Under Internal Market Law -- 9.4 The Possible Relevance of Reverse Discrimination: A Cross-Border Hypothetical Test -- 9.5 The Possible Relevance of Reverse Discrimination: The Potential Usefulness Approach -- 9.6 A New Path Towards the Possible Relevance of Reverse Discrimination? The Actual Usefulness Test -- 9.7 The Evolving ECJ Case Law and the Link Between the `Personal´ and the `Market´ Dimension -- 9.8 Conclusion -- References -- Chapter 10: Human Trafficking, Equality, and Access to Victims´ Rights -- 10.1 Introduction -- 10.2 The Existing Legal Framework -- 10.2.1 Overview of the Trafficking Directive -- 10.2.2 Main Features of the Residence Permit Directive -- 10.2.3 Approach of the Victims´ Rights Directive -- 10.3 Critical Analysis of Equality and Access to Victims´ Rights -- 10.4 Final Remarks -- References -- Table of Cases -- Permanent Court of International Justice -- International Court of Justice -- Court of Justice of the European Union (Former Court of Justice of the European Communities) -- General Court of the European Union (Former Court of First Instance) -- European Court of Human Rights -- National Courts -- Belgium -- Czech Republic -- France -- Germany -- Italy -- Portugal -- The Netherlands -- United Kingdom -- Index.

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