The study, focused on the European Union law, deals with the puzzling relationship between the prohibition of every discrimination founded on sex in employment (and social) matters (art. 157 TFEU, secondary EU law, and art. 23 of the EU Charter of Fundamental Rights) and the faculty, now recognized to the Member States by primary European law (art. 157 par. 4 TFEU, art. 23, par. 2 of the EU Charter) to provide the under-represented sex with special (compensatory) advantages. The question discussed in the essay is whether the case law of the European Court of Justice deems these "positive actions" as a normative exception to the prohibition of every discrimination (therefore of restrictive interpretation) or as a normative expression of the general principle of equality. At present the case law suggests an holistic approach. The equality principle, in that vein, is structured not only in a negative, but in a positive dimension too. The unwritten European Union law recognizes a substantial or "true" meaning of the equality, whose fulfilment is entrusted to the national (or European) legislator. However the negative dimension of the principle mandates a careful delimitation of the special privilege attributed to the under-represented sex, and may conveniently force (by virtue of the substantial strand of the equality) its extension to the disadvantaged person of the opposite sex.

Le azioni positive di genere alla luce del principio di eguaglianza. Un solo principio dalle multiformi applicazioni nel diritto dell'Unione - o più principi?

AMADEO, STEFANO
2013

Abstract

The study, focused on the European Union law, deals with the puzzling relationship between the prohibition of every discrimination founded on sex in employment (and social) matters (art. 157 TFEU, secondary EU law, and art. 23 of the EU Charter of Fundamental Rights) and the faculty, now recognized to the Member States by primary European law (art. 157 par. 4 TFEU, art. 23, par. 2 of the EU Charter) to provide the under-represented sex with special (compensatory) advantages. The question discussed in the essay is whether the case law of the European Court of Justice deems these "positive actions" as a normative exception to the prohibition of every discrimination (therefore of restrictive interpretation) or as a normative expression of the general principle of equality. At present the case law suggests an holistic approach. The equality principle, in that vein, is structured not only in a negative, but in a positive dimension too. The unwritten European Union law recognizes a substantial or "true" meaning of the equality, whose fulfilment is entrusted to the national (or European) legislator. However the negative dimension of the principle mandates a careful delimitation of the special privilege attributed to the under-represented sex, and may conveniently force (by virtue of the substantial strand of the equality) its extension to the disadvantaged person of the opposite sex.
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Utilizza questo identificativo per citare o creare un link a questo documento: http://hdl.handle.net/11368/2734692
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