Blockchain Papers

Or Brook, Katalin Cseres

The paper analyses how the substantive and procedural aspects of priority setting could implement considerations of gender equality and guarantee women’s equal market participation. Despite the EU’s robust constitutional framework and its horizontal clauses, gender equality remains an invisible issue in EU competition law. Notwithstanding the potential of priority setting rules and practices as a tool to combat inequality, currently they do not explicitly implement considerations of gender equality in the EU. Gender-sensitive indicators could be embedded across the priority setting rules and practice cycle. Four aspects of priority setting are particularly suitable for the consideration of gender equality: agenda setting, the substantive criteria guiding prioritization, conducting ex-post impact assessment of priority setting decisions, and the procedure in which prioritization decisions are being taken. The paper proposes to draft a new Recommendation on priority setting within the framework of the European Competition Network (ECN), nudging competition authorities to base their priority setting rules and practices on criteria based on sustainable, inclusive growth with a strong focus on gender equality. Women make major contributions to the economy, and their economic participation and unrestrained access to markets contribute vastly to inclusive growth and sustainable development.1 However, modern economies are characterized by gender divisions of labour, gender inequalities in income and wealth, gender hierarchies in industrial enterprises, gender differences in rights of ownership, and conditions of employment.2 While women represent remarkable spending power and economic influence, controlling the dominant share of global consumer expenditure, they are overrepresented among economically vulnerable groups of population with little to no economic independence.3 Women are known to have less income, wealth, and capital on average than men.4 Moreover, women are not only economically more vulnerable than men, but also have unequal access and unequal opportunities to participate in the economy. This is due to the fact that gender and gender relations, in interaction with other structures of social hierarchy, such as class, ethnicity, race, and age, shape economic relationships, preferences, choices, and decisions by businesses and consumers.5 Accordingly, gender differences influence the allocation of resources in the economy, and while the specific nature of gender relations varies among societies, the general pattern is that women have less economic autonomy, fewer resources at their disposal, and limited influence over decision-making processes.6 Women’s lack of equal participation in the economy and gender inequalities in markets have many causes including discriminatory laws, policies, and social norms coupled with shifts in the global economy and demographics, technological advances, and protracted crises.7 Part of this assemblage of barriers are the laws, policies, norms, and institutions that structure markets, which operate with a gender divide mirroring the broader organization of society along gender lines.8 Competition law is a fundamental area of the law to safeguard open and competitive markets, and to ensure that competition functions as an effective accountability mechanism against arbitrary use of private economic power at national and supranational (EU) levels.9 While debates on the optimal welfare standard guiding competition law enforcement have been long ongoing, and a large number of competition authorities adopt a consumer welfare standard globally, competition rules are generally aimed at protecting citizens from the negative impact of the undue acquisition and exercise of market power, whether private or public.10 Through preventing anticompetitive practices resulting from restrictive agreements between firms, abuses of dominant position, mergers which lead to excessive market power, and state aid that provides economic advantages to selected firms, EU competition law influences who has access and under what conditions to goods and services, and who can participate in markets. This raises the question of whether and how competition law and policy can address gender inequalities in markets and facilitate a more equal economy for women. Which tools and mechanisms EU competition law has to address the barriers to women’s access and participation in markets as consumers of goods and services, or as entrepreneurs? More concretely, this paper focuses on the question of how competition authorities in the EU can implement a gender lens in their priority setting rules and practices. Priority setting is the way competition authorities select which cases they pursue and which they disregard.11 Setting priorities entails administrative discretion on the side of the competition authorities and provides them with the freedom to choose their course of action and to make choices that best fulfil the public interest that the law protects. At the same time, competition authorities’ priority setting has vast socioeconomic consequences for economies and citizens’ welfare, and impacts wealth distribution across various groups of society, including women. The paper analyses how the substantive and procedural aspects of priority setting could implement considerations of gender equality, protect women as vulnerable citizens, and facilitate their equal market participation. It investigates this question against the EU’s legal and constitutional order and its underlying integration mechanisms that support the integration of gender equality as a constitutionally embedded fundamental right under EU law. By relying on the authors’ empirical research on priority setting rules and practices in the EU and its Member States, and the UK12 as well as the theoretical framework they developed,13 the paper offers a theoretical and a practical framework for embedding gender within competition law enforcement. In the European Union’s legal order, gender equality and competition law are both constitutional values.14 First, undistorted competition is a fundamental constitutional value in the EU legal order.15 EU competition rules are to control economic power, safeguard undertakings’ freedom of economic activity and consumers’ choice, and guarantee equal opportunities for all EU citizens to participate in the internal market. When competition is effective in markets, citizens benefit from lower prices, better products and services, and innovation. While the central concern of EU competition law is to target firm behaviour that can harm the competitive process and ultimately the economic interests of consumers,16 is also a central of the integration and as a fundamental of the EU’s internal equality is also a value of the on which the is and under is to the Member and a fundamental right in the of equality to a state in which access to rights or opportunities is not by Accordingly, can be as and women equal access and use of equal participation in and and from The of gender equality the of equal to substantive equality is to opportunities they are equality in the EU as a tool of economic and by the of the However, over the a fundamental value and of EU by the of horizontal clauses, the European of and the of the the EU various aspects of gender equality, and the a of a gender in all EU policies, while also specific to or gender the EU is as a global in gender equality, robust equal and and the gender policy and to address Competition law is not action as gender equality its at controlling excessive economic power to the for the and of competition has been the of consumer welfare the of economic in the of this standard is that not the welfare of all groups It to consumers within the market under and their economic while specific and of By on the of consumer welfare, competition law and policy do not the of such as age, race, and social income, or the potential of anticompetitive practices or the competition law that vulnerable consumers and citizens are by negative market consumers than known as the and are at a of negative impact on their the consumer welfare standard has due to its focus on and while to of broader social such as social and economic the rights of or the distribution of economic power within of that competition can and contribute to more equal distribution of wealth and that competition on other than such as or products and services, can contribute to and to this competition law the competitive process and economic power that the of a Despite on and little has been to gender inequalities and their with market mechanisms and excessive market While gender equality has been as a of economic growth and social and women’s economic and are as for and sustainable has been little consideration of how economic law and could address economic and implement gender EU competition and have not the question of how the enforcement of EU competition norms, institutions and decision-making impact women. This is as EU competition law is embedded in a constitutional gender equality has been a value of the EU legal order the of equal for of the of the the EU has not only a of equal and but has also a framework its for gender all of its policies, gender By use of the by social to and social from the of women’s this paper an based on the in EU competition law. The is a that to whether and enforcement tools women’s and the gender of rules and practices that or It the gender of a legal or social have women been of for whether the competition rules with their of consumer welfare standard of women’s in the of preferences, choices, and they markets and market power and and on an exercise is in its the and of women’s of social and power Women’s social are by of at the of race, social position, and Accordingly, can contribute to the that in with other an in markets and market The of the competitive process is a value of the EU’s legal and economic order, and as such an of of the on the European which among the EU of equality, of and for When the they to the EU’s economic and legal order, which as a explicitly the of undistorted by the competition law a in EU Member States, due to market the process of EU and strong supranational enforcement mechanisms of the European Moreover, the EU is the enforcement of the EU competition rules on anticompetitive agreements and of with the Member Competition authorities the based on their national procedural and within their and constitutional In this the of administrative and setting for the effective enforcement of the EU competition a fundamental of the EU legal order, competition law and by all Member States, and the of competitive markets is a value for all Member is also a of the EU legal order, as by equality between the Member and on equal between women and is also an of the EU as in that the EU is on of and that equality between women and equality is also a fundamental which is in of the of the EU equality rules an economic to of competition between within the the EU’s to equality law has and the of gender equality and the the EU’s gender equality have a policy from a preventing competitive within the for with to the of equal and to to the of and to a legal and framework with of the of the of in the EU constitutionally the to gender equality gender all policy and by gender equality and guiding legal of the EU. the of substantive equality the new various of and including an By a new on the social policy of the European integration the to the constitutional framework of including competition law and gender equality, a framework the economic and social of the legal By a competitive social market as an of the the on European the that social and economic interests be Accordingly, to a market economy with social by including both economic and social under the of market The of the horizontal also a of such have an to the EU’s to ensure between as not to the of policy and which be in all of EU By social and such as the of gender equality, they a constitutional to all of EU law and While all of the way integration has to remains the horizontal clauses, explicitly that the EU to gender inequalities and gender equality. Accordingly, the EU has to inequalities and gender equality all its and in its of Despite this robust constitutional and while the has that the of the be as and gender equality remains an invisible issue in the area of competition law. in their and on the of EU competition and no cases to gender equality in the practice of the or the a and in EU the horizontal have been as tools by the but their has been more in policy than in the of the Accordingly, their has been to a to the of and of equality within the EU legal The EU’s by that the gender by including a gender in all of policy in all EU policy internal and equality and competition law could be as of social and economic This also with the economic nature of the European integration and the constitutional between economic and social at EU However, social has in the EU’s constitutional framework and a inclusive internal market economic and social are at the EU is not a new equality considerations with the of a competitive market. of and wealth for many a central in the competitive markets in competition that that by economic power and equality of competition to economic The of equality of also central to the of competition which the and enforcement of EU competition While the in EU competition law from the a economic the of equality of competition law excessive state with the on the between the of competition law and has in the The of and of economic power in the of a large are as a of economic and social market power has been as to of Accordingly, both the constitutional framework and the of competition law in that EU competition law with the of competitive markets economic power is and economic opportunities are the EU’s constitutional framework is based on a competitive social market as well as the constitutional mechanisms in the horizontal clauses, both an to the of gender equality and competition law. This with the of gender equality as substantive equality in of women’s consumers and equal access to markets, and services, and their equal opportunities to participate in their of a The to the question of which EU competition law can in gender and how to and the integration of gender equality in competition law. In the framework of competition law and gender can a at various of the and enforcement. can by embedding the gender lens in the substantive of the competition law that the of the consumer and its with market power has been as a of but has not been what women’s preferences, choices, and consumer behaviour fulfil in the and market power and competitive in competition power and gender for that and access to services, or Accordingly, that for women can women gender equality and of equality in the of the competition law not First, raises value in and legal the of the power to of wealth in society to competition a that is to Competition as not have the to make value While they are who have the to they lack the to economic and the of the substantive competition law for between economic and This in legal the of a or the to be as competition law enforcement this to the that competition law and policy are not the tools to or other of the nature of the competition rules in the the substantive of the competition rules the of interests in to with legal as to the of that an from the competition in the many of can be by embedding gender equality considerations in the competition authorities’ as to the substantive competition law While competition authorities’ enforcement against anticompetitive practices can vast for society, competition authorities’ resources are limited and can target only a limited number of the of which potential they pursue and which they is of fundamental for all Setting priorities influences the of and impacts wealth distribution across various groups of competition authorities’ priority setting has vast socioeconomic consequences for economies and citizens’ welfare, including women. Accordingly, the power to the enforcement priorities provides an to gender within competition the substantive competition law Competition authorities for focus on markets or practices that women. priority setting provides for and public participation priority setting are law such as or policy law tools the competition authorities to the nature of social debates over and norms and which not be to them the substantive of the law. Competition authorities can interest groups and the general public on their priority setting and them to Despite the potential of priority setting rules and practices as a tool to combat inequality, currently competition authorities do not explicitly implement considerations of gender equality in the EU. a the allocation of enforcement and the and they are not among the of society and not who them markets have been to the of a consumer to their social position, economic or vulnerable citizens, for can be by anticompetitive practices in markets such as and Competition authorities do not or the impact of the on from demographics, social race, and Moreover, they limited for the of such vulnerable groups of society in their a groups are at a of anticompetitive priority setting the freedom and the power to choose which cases to pursue and which to and resources to the such power authorities the to focus on of economic and can be by the the or the competition as can contribute to enforcement Despite the of prioritization choices, research that is a large of priority setting and practices across national legal in the the question of what of competition law the European and the Member national competition authorities and how such decisions have not been in The and procedure for setting enforcement priorities have not been by the EU of the an on the Member to their competition authorities to their enforcement and to that they do not to be an enforcement However, this legal has not been by or EU law to Member or in setting the enforcement Moreover, competition authorities have and invisible priority setting practices. are by no or rules on how and they their enforcement and are not to or their prioritization In many competition authorities their enforcement priorities in a of their enforcement are to to by consumers or to and than conducting their prioritization are to focus the enforcement on a of anticompetitive behaviour in the interests of than of The EU’s of for that while the European priority to cases which have the potential impact on the internal market and on criteria to be in to ensure the of cases with the to competition or consumer welfare in the internal market and across all economic By relying on the authors’ this analyses how priority setting could implement considerations of gender equality and address practices that gender inequalities to First, gender equality can be in priority setting rules and practices by on the of markets, on anticompetitive practices in markets that to gender for spending of consumers’ such as services, and priority could be to markets and the of In the women are overrepresented in such as and priority setting could also focus on access to markets, anticompetitive behaviour that market access of and by vulnerable groups such as businesses that in access to and on anticompetitive practices that market access by women access to and Gender-sensitive indicators could be embedded across the priority setting rules and practice cycle. In empirical various aspects of the priority setting to their and in the and Four aspects of priority setting are particularly suitable for the consideration of gender equality: agenda setting, the substantive criteria guiding prioritization, conducting ex-post impact assessment of priority setting decisions, and the procedure in which prioritization decisions are being taken. First, gender equality considerations could a competition that a of enforcement that or practices are a an agenda than only to or of their impact on markets and It in whether to open an or to a and what enforcement tools to use in agenda could focus on and practices women a of their they are in the economy, they are for in social and with such as and In in of and social and of in are The substantive criteria for priority setting to or internal criteria guiding competition authorities’ decisions on whether to pursue or a agenda setting, this not to a specific or but to Setting substantive criteria structures the exercise of the competition authorities’ use of focuses enforcement on and the It both enforcement in cases of or and practices only a limited impact on consumers and It also functions as an accountability substantive criteria accountability and and of the of prioritization to broader While EU law not substantive criteria for Member States, such of the are by substantive by the national or as by only internal substantive by as internal control and by both internal and substantive and are not by or internal criteria at research has that or the competition authorities have competition law prioritization such have on practical of the for legal the of an the resources of the competition the legal the competition is well to an the potential of the and on economic growth indicators or of the the impact of the on the of the economy or the or on consumer In that prioritization decisions of the European and the of the EU Member are by economic growth on consumer welfare as the of their substantive prioritization Setting competition law enforcement priorities based on the consumer welfare standard or other growth indicators not who the of the are and the impact the competition law enforcement have on their priorities by the consumer welfare standard do not between the products or to an for between competitive harm in products markets and an competition authorities could their priorities with to broader growth the have that such as do not a of the conditions that Accordingly, is a for for not and economic growth but also in the of and such not only at the of the economic but also at the and conditions of of and have been from economic growth to inclusive and sustainable a and and to wealth across society and opportunities for In of gender and women’s have been The and the for are both and in the to The and In the the is a tool to the of gender equality. by the European for its in has and by a of gender equality, to the EU’s policy It both and and more effective to opportunities for The have been and in over the in substantive prioritization criteria that their competition law enforcement more with new of inclusive and sustainable The and competition authorities have both the economic that influence and ultimately better for all of The and a more inclusive and sustainable growth to of This is from the on broader and the of competition the with The prioritization the to the which explicitly that harm can be markets do not with in vulnerable in at of and the to markets well for vulnerable the for and its prioritization The of the of the make markets well for and and in the the competition is an economic process that the of It is a to a economy and in a and to contribute to in a that and businesses from the of markets. the assessment of is not limited to or in markets. The social interest in the of the including not only market markets, optimal of legal or and consumer but also public interests such as economic of and The also an enforcement of the large impact its have on a such as and in vulnerable or and impact prioritization choices, for by who can participate as in the participation and various functions in administrative that the of and administrative decision-making in modern not only and administrative authorities in the of markets, but their participation an of and accountability that the of the and the participation of is an mechanism the administrative use of and functions as a to are the to the of the competition or that could ultimately lead to the of the However, such a is of participation rights and no on the competition authorities to address them by a enforcement and is for and for technological in but is only of the considerations for modern public and a between procedural and be This could for between of participation and by to of who are in the public Women as in the public interest of gender equality, could be procedure to the could be which society to a anticompetitive which the competition to the of the by a in a that administrative are not only in the and equality of This women’s to participate in decision-making by being and access to by the participation rules in legal It the of the of law that by the of administrative decision-making be effective participation and of their legal competition authorities can gender equality considerations within impact ex-post assessment of prioritization assessment of competition law is limited in general and to prioritization are no for the of a competition in general and the allocation of enforcement priorities in the lack of such and the in and the impact of the enforcement the limited ex-post of competition law enforcement to focus on the number of in a or on growth indicators such as consumers’ the in resulting from the competition policy enforcement in the market by the of the Competition authorities little on the impact of their of cases and enforcement is little on the impact of the enforcement on the of or the of products or This by the EU of for the European for on than on and the of its enforcement for gender equality considerations within impact prioritization in with the EU policy on gender impact the European a of in its to gender the policy from policy to and While the not gender impact as a has the consideration of gender within its general impact assessment equality is not a of social but also a fundamental of sustainable and inclusive By equal opportunities in markets, can facilitate women’s potential as to and a competitive markets are to and in a including the interests and of women. While the of EU competition as a area of the EU legal and economic order, has been to protect competitive markets and goods and for a broader constitutional value that a social order well and of specific The and the constitutional of EU competition law are with the of equal which is a of gender equality as a constitutional and fundamental right in EU law. Despite this strong constitutional of the between competition law and gender equality, and mechanisms of gender the horizontal clauses, their invisible both in the EU and in national competition law This paper offers a but enforcement tool to gender equality in the enforcement of competition law. It how gender equality considerations could be in the priority setting rules and practices of competition authorities to how such could be in the substantive of the competition law While being of the administrative and constitutional across the EU Member States, but also the central and the in EU competition law policy across the the this paper is a of the Recommendation on the power to priorities in the framework of the the to priorities the could within the framework of the a that on the way prioritization criteria are the EU has its growth which is based on the of and inclusive growth and competitive the the on the of the its legal and economic order for a of the consumer and for the based on sustainable, inclusive growth and also social of The have no of interest to

Evelien Timbermont

No abstract is available for this record.

Juergen Breckenkamp, J Thirugnanamohan, A Stern, Oliver Razum · 5 authors

Abstract Background Trans* people's life satisfaction is correlated with established legal frameworks for gender recognition and access to trans*-specific health care (Transgender Europe [TGEU], 2021). TGEU's guidelines to human rights-based principles of trans*-specific health care highlight bodily integrity/autonomy, free self-determination of gender, quality, specialized and decentralized care, and the right to determine reproductive paths as important pillars of gender affirming health care. We conducted a policy comparison across Europe regarding access to gender-affirming health care to assess how adherence to human rights-based principles could be strengthened. Methods We compared access to health care across four main domains: legal framework (e.g., legally recognised genders), insurance coverage (e.g., out of pocket costs), access barriers (e.g., legal requirements to access gender-affirming surgery), and health care offers (e.g., hormone replacement therapy). Criteria were developed in guided brainstorming sessions. Three researchers rated 28 countries across 28 items based on available policy documents. Results The majority of European countries prescribes a medicalised gender-affirming process rather than a self-decided process. Psychiatric diagnosis is also required in most countries to access gender-affirming health care. Gender-affirming health care is partly financed by statutory health insurance in most of the countries. Not all countries authorise full gender-affirming health care. Especially where statutory health insurance-covered gender-affirming health care relied centralised on single outpatient clinics or hospitals, waiting times between 6-24 months are found. Conclusions Many European countries fail to fully comply with TGEU's guidelines to human rights-based principles of trans* health care. Given the negative impact of access barriers on life satisfaction, European countries should target these shortfalls in ensuring gender-affirming health care. Key messages • Non- or only partly covered trans* health care contributes to health inequality. • Regarding trans* people, European countries need to strengthen human-rights based access to gender-affirming health care.

Marc Veenbrink

Judgment of 28 January 2021, Qualcomm v Commission, C-466/19P, EU:C:2021:76, and Judgment of 2 February 2021, DB v Commissione Nazionale per le Società e la Borsa (Consob), C-481/19, E EU:C:2021:84 The Court of Justice of the European Union conformed and clarified in Qualcomm, the well-established scope and application of the freedom from self-incrimination; in DB v Consob, it ruled that this principle is applied in conformity with case law of the European Court of Human Rights and made a distinction between undertakings and natural persons. On 28 January 2021 and 2 February 2021, the Court of Justice (CoJ) of the European Union (EU) ruled in two cases on the freedom from self-incrimination. The first case, Qualcomm, was an appeal case brought before the CoJ by the undertaking at stake, whereas the second case, DB v Consob, concerns a preliminary reference procedure. The Qualcomm case also touches upon other aspects, such as the right of the Commission to request additional information after the statement of objections has been issued (see in particular paras 66–70). The focus of this contribution will be on the implications of the two cases on the freedom from self-incrimination in EU competition law proceedings. In 2010, the Commission started an investigation into an alleged predatory pricing practice of Qualcomm. The Commission issued an infringement decision in this case in 2019 (Qualcomm (Case AT.39711) Commission Decision of 18 July 2019). The case at hand relates to a decision taken on 31 March 2017 ordering Qualcomm to provide certain information, after Qualcomm refused to comply with a request for information on the basis of Article 18(2) Regulation 1/2003. Qualcomm challenged the decision of the Commission before the Union Courts. In DB v Consob, the CoJ had to rule on the scope of the freedom from self-incrimination in proceedings relating to insider dealing and market manipulation. The Italian Companies and Stock Exchange Commission, Consob, started an investigation against a natural person for insider trading and fined the person concerned €50.000 for delaying to come to a hearing and for failure to provide certain information when he was present at the hearing. Since the investigation is based on national law implementing a Directive, the national court decided to refer questions to the CoJ on the scope of the freedom from self-incrimination. Both the General Court and the CoJ dismissed the arguments of Qualcomm relating to the freedom from self-incrimination by referring to the ruling in the (perhaps infamous) Orkem case. In Orkem, the CoJ ruled that the Commission may ‘compel an undertaking to provide all necessary information concerning such facts as may be known to it and to disclose to it, if necessary, such documents relating thereto as are in its possession, even if the latter may be used to establish, against it or another undertaking, the existence of anti-competitive conduct’ (Case 374/87 Orkem v Commission, EU:C:1989:387, para 34). By contrast, the Commission cannot order an undertaking to provide answers that may involve an admission of guilt (Orkem, para 35). The information that Qualcomm had to provide was merely of a factual nature (para 145; and General Court in: Case T-371/17 Qualcomm v Commission, EU:T:2019:232, paras 187–189). Qualcomm also had to produce documents containing some of the information requested by the Commission. According to the undertaking at stake, this would infringe the freedom from self-incrimination, since the Commission can only compel an undertaking to provide pre-existing documents and thus, a contrario, cannot compel an undertaking to create new documents. Both Union Courts rejected this argument (CoJ, paras 146–147 and GC, paras 192–193). It may be necessary for an undertaking to put factual information into writing and to send that document to the Commission in order to comply with the obligation to cooperate. The freedom from self-incrimination will only be infringed in those circumstances when an undertaking has to produce documents containing an admission of guilt. Qualcomm confirms and clarifies established case law of the Union Courts and is in that regard nothing new under the sun. However, the established application of the freedom from self-incrimination in competition law does become interesting in light of the possible consequences following from the DB v Consob ruling. In DB v Consob, the CoJ had to rule for the first time on the scope of the freedom from self-incrimination for natural persons. The CoJ referred to ample case law of the European Court of Human Rights (ECtHR) in order to explain the scope and application of the freedom from self-incrimination. This is a logical approach due to the requirement in Article 52(3) of the Charter to provide at least the same level of protection as the ECHR rights when those rights correspond with Charter rights. Even though the freedom from self-incrimination is not explicitly referred to in Article 6 ECHR, the ECtHR has regarded this freedom to be part of the right to a fair trial (ECtHR, Funke v France, CE:ECHR:1993:0225JUD001082884, para 44). This also means that the freedom from self-incrimination is part of the right of a fair trial under the Charter (para 37). The CoJ ruled that, with reference to case law of the ECtHR, the ‘right to silence cannot reasonably be confined to statements of admission of wrongdoing or to remarks which directly incriminate the person questioned, but rather also covers information on questions of fact which may subsequently be used in support of the prosecution and may thus have a bearing on the conviction or the penalty imposed on that person’ (para 40). This is a notable distinction with the approach taken in competition law proceedings initiated by the Commission. According to the CoJ, this statement does not necessarily conflict with that approach, since (1) the Commission cannot oblige an undertaking to provide an admission of guilt (para 47) and (2) the Orkem ruling is applicable to (associations of) undertakings and not natural persons (para 48). Both reasons are discussed below. It is not uncommon in EU law to make a distinction between natural and legal persons with regard to the scope and application of certain fundamental rights. In the 2003 Volkswagen case, AG Colomer made a distinction between safeguards in criminal law and in competition law by reference to the nature of the accused in both procedures. Applying the same safeguards for individuals in criminal law proceedings to ‘powerful corporations with significant resources’ in competition law proceedings would, amongst others, be a ‘mockery’ to individuals (Opinion of AG Colomer in Case C-338/00 P Volkswagen v Commission, EU:C:2002:591, para 66). Directive 2016/343 also makes a distinction between natural and legal persons when it comes to the scope and application of the freedom from self-incrimination (Directive (EU) 2016/343 of the European Parliament and of the Council of 9 March 2016 on the strengthening of certain aspects of the presumption of innocence and of the right to be present at the trial in criminal proceedings [2016] OJ L65/1). The Union legislator decided to limit this directive to natural persons, since there are ‘different needs and levels of protection of certain aspects of the presumption of innocence as regards natural and legal persons’ (Directive 2016/343, Preamble, Recital 13; the freedom from self-incrimination is regarded to be part of the presumption of innocence, see Preamble, Recital 25). Reference is also made to case law of the CoJ that ‘recognised that the rights flowing from the presumption of innocence do not accrue to legal persons in the same way as they do to natural persons’ (Directive 2016/343, Preamble, Recital 13). In legal literature, however, different views exist as to whether the scope and application of freedom from self-incrimination can differ depending on the nature of the accused (see, for a short overview, Marc Veenbrink, Criminal Law Principles and the Enforcement of EU and National Competition Law: A Silent Takeover? (Wolters Kluwer 2020), 22–23). In DB v Consob, the AG made a distinction between the natural person in the case at hand and legal persons in competition law proceedings (DB v Consob, AG Pikmäe, para 96), whereas the CoJ correctly points to the difference between natural persons on one hand and (associations of) undertakings on the other (DB v Consob, para 48). It is clear that an undertaking can be a natural person as well. The ruling in DB v Consob, therefore, leads to the question whether a natural person, acting as an undertaking, should be treated differently from a natural person acting in a different capacity. Should the Commission then apply ECtHR case law or Orkem when it orders a natural person, being the undertaking, to provide information in a competition law procedure? It is, furthermore, not clear as of yet whether the ECtHR would actually make a distinction between the scope and application of the freedom from self-incrimination in light of the nature of the accused. Although, the ECtHR did rule in Sa-Capital Oy that it is ‘mindful’ that in competition law proceedings, fines are generally imposed upon ‘corporate entities’ and not on natural persons and took this into account as a factor to determine whether the rights of defence were compatible with Article 6 ECHR (see ECtHR, Sa-Capital Oy v Finland, CE:ECHR:2019:0214JUD000555610, para 78). The practical solution of the CoJ in DB v Consob to distinguish between natural persons and undertakings is perhaps a bit short-sighted. Nevertheless, the CoJ also mentioned that Orkem, on its substance, does not necessarily conflict with ECtHR case law, since undertakings cannot be compelled to provide answers that might involve an admission of guilt (DB v Consob, para 47). This seems to be in contrast with the statement of the CoJ that the ‘right to silence cannot reasonably be confined to statements of admission of wrongdoing or to remarks which directly incriminate the person questioned, but rather also covers information on questions of fact which may subsequently be used in support of the prosecution and may thus have a bearing on the conviction or the penalty imposed on that person’ (DB v Consob, para 40). In order to determine whether the freedom from self-incrimination is infringed, and thus, whether there is improper compulsion, the ECtHR will examine four criteria, namely ‘the nature and degree of compulsion used to obtain the evidence, the existence of any relevant safeguards in the procedure, and the use to which any material so obtained was put’ and the public interest (ECtHR, O’Halloran and Francis v United Kingdom, CE:ECHR:2007:0629JUD001580902, para 55; for a discussion of these factors, see Veenbrink, cited above, p. 24–31). The nature of the evidence requested can be a factor that should be taken into account to determine the degree of compulsion that may be used against a person. There are some cases in which the ECtHR allowed authorities to obtain factual information from a person (see e.g. ECtHR, Weh v Austria, CE:ECHR:2004:0408JUD003854497, paras 52–56; and O’Halloran and Francis v United Kingdom, para 62). These are cases concerning traffic violations in which the owner of the car was obliged to inform the authorities who drove the car. The owner of the car could, obviously, also be the driver of that particular car. Answering the question could therefore lead to the driver’s conviction. The ECtHR used, amongst others, the nature of the evidence obtained and the general interest at stake as relevant factors to conclude that the obligation to state this simple fact did not infringe the freedom from self-incrimination. On the basis of these cases, it could be argued that a request for factual information in competition law proceedings does not necessarily infringe the freedom from self-incrimination. On the other hand, the obligation on undertakings to provide factual information goes further than merely stating a simple fact. Therefore, it cannot be ruled out that the ECtHR will find this obligation to be an infringement of the right to silence and thus an infringement of a core aspect of the freedom from self-incrimination. Still, the Strasbourg Court has shown that it takes into account the particularities of competition law proceedings when it determines whether there is an infringement of Article 6 ECHR (Sa-Capital Oy v Finland, cited above, paras 78 and 85). The ECtHR is probably more lenient when it comes to an obligation to provide documents that are already in existence, as long as the Commission does not engage in fishing expeditions and as long as the request is sufficiently specific for the undertaking to determine which documents it needs to hand over (see, respectively, ECtHR, J.B. v Switzerland, CE:ECHR:2001:0503JUD003182796, para 69 and Funke v France, cited above, para 44). It is clear from the Qualcomm case that the Orkem approach is still alive and kicking. This begs the question whether that approach is indeed, as the CoJ held in DB v Consbob, Strasbourg-proof. The answer to that question remains in a similar state as Schrödinger’s cat. Hopefully, the ECtHR will be presented a possibility in the near future to finally open this box.

Julie Ringelheim

This article aims to clarify the meaning and operation of the rules governing the burden of proof in discrimination cases under EU law. In addition to the text of the antidiscrimination directives, it looks at the guidelines provided by the Court of Justice of the European Union and at the application of these rules at the domestic level, focusing on three Member States: Belgium, France and Ireland. Section 1 describes the basic operation of the burden of proof provision, clarifies the respective obligations it entails for claimants and respondents and highlights differences resulting from whether direct or indirect discrimination is at stake. Section 2 considers in more detail the means of evidence that can be used to establish discrimination, with particular emphasis on statistics and situation testing. Section examines the issue of complainants' access to information held by the alleged discriminator and Section 4 offers conclusions.

Francisco Berreta

In February 2015, in what appears to be the first of its kind, a judge in Buenos Aires awarded a transgender woman a public pension in recompense for harms wrought upon her “as a result of the discrimination and the institutional violence—of a general, constant, and direct nature—permitted by an absent state and promoted by police officers” (G.N.B. v. GCBA). The judge, Victor Trionfetti, ordered the City of Buenos Aires to pay the woman, identified as Ms. G. (Sra. G.), a monthly allowance equivalent to the minimum living wage, which in 2015 was $4,716 pesos. Ms. G., who was sixty-one at the time of this ruling, had expressed a female gender identity from an early age and left home at nine. She had been raped and tortured by police and prison guards on numerous occasions, had been denied care in hospitals, and, because of discrimination due to her gender identity, had been unable to find formal employment. In her brief, Ms. G. stated that, as a result of her transgender status, she had spent about half her life in prison and the other half living on the street as a sex worker. She eventually left sex work to labor as a seamstress. As a result, she has no pension or financial resources of any kind. Ms. G. sued the government of the City of Buenos Aires for damages.Although the pension was awarded only to Ms. G. and not to all trans people, and the judge's decision sets no precedent and is currently under appeal, the case is among the first of its kind anywhere to provide reparations to a trans person for the damage caused by state-sponsored violence and the abrogation of a government's duty to protect. The argument of Ms. G. mirrors the rationale for proposed legislation in the City of Buenos Ares and the Argentinian National Congress, which would award pensions “to those who have been deprived of their liberty for reasons related to their gender identity as a consequence” of actions taken by officials in the criminal justice system (G.N.B. v. GGBA).In 2012, Argentina passed the Gender Identity Law (Global Action for Trans* Equality 2013), which Judge Trionfetti describes as “a turning point” in the recognition of trans people. In his decision, the judge relied on the reports of advocacy groups documenting violence and discrimination and the testimonies of witnesses at the trial to find that discrimination and violence directed at trans people is a generally accepted fact. By doing so, he shifted the burden of proof from Ms. G. to the city government. The city responded by simply—and lazily, according to the judge—denying these facts and provided no evidence to counter Ms. G.'s claim. Trionfetti acknowledges that the nature of Ms. G's claim exceeds the traditional standards of tort law. While the law as a tool is insufficient, the language of the decision expands the realm of what might be possible in the process of reparation. The judge characterizes the harms suffered by Ms. G. as part of the “structural nature of her stay in the world.” The damage “is not the result of a particular event, but rather part of a continuum. . . . It is a damage that is endured by the ‘sheer boldness’ of establishing oneself as an autonomous Self in front of others.”Translator's note: In the translated excerpts below, Ms. G. is identified as the applicant, and the Government of the City of Buenos Aires is referred to as GCBA or as the respondent. All the notes are those of the judge, and they appeared as footnotes in the original text. Citations of case law and legislation have been omitted. The numbers for section headings have also been omitted.. . . .As with most judicial cases, the conflict that I must resolve here focuses on the legal situation of the parties. However, I would be guilty of cynical shortsightedness if I were to consider the situation posed by Ms. G. as a legal drama that only concerns her as an individual. The particular facts of the case, the evidence provided by the witnesses, and the other evidentiary elements introduced in this suit demonstrate that the applicant belongs to a group that has been systematically and viciously discriminated against.To my mind, the nature of this claim exceeds the standards of “tort law” as understood by the civil or administrative legal doctrine, and are to to the of the of groups as the the applicant belongs has been in to this group and has a in the or people its or of groups to and to to an that not to to in which of the of of and the and of be at the of the that from to public and from they be understood and this case only from the proposed of legal would to an result of . . is that Ms. G. is and to be a trans The has not this and the witnesses this It is to this because the of the claim in the of the to gender identity, an of the of the and is an that the of on or or gender identity a and of to the . . of in to of and gender identity, the case of the applicant, are and and of of and and discrimination in to the of other to the . . of of groups is that to the of Law as the Identity . . the of to as the trans is not possible to the about which with on and to which has been no of a in of the which have to a to claim on the and for the of of the individual. . . . It be that people to the that the not only discrimination but have been in and As a result of and discrimination that of are to in by the that to the most of the with for their of life and that all of which is in decision suffered by the is that are to this in the of the and the other under the of the of the City of Buenos with to the of this In the case of the National Congress, the to a pension to those who have been deprived of their liberty for reasons related to their gender identity as a of actions of judicial or actions by the public or In the of the city of Buenos Aires a Law for has been It to the and of the and of trans people by a monthly for transgender people the age of The reasons for are proof of the and of by or the of trans people and the of and on a result in an of that trans of life and from any of any kind of life It be that the of the Gender Identity Law is a turning and the of an of the to be to is also to any kind of these I among the provided by the Gender Identity Law and to for in Argentina in with trans The possible to the situation of these and the of the Gender Identity Law and that and of trans people of their and that the trans is in a because of and the of the Gender Identity Law a on their and of In the that these are that of the trans people the and at of their but no to is in of the that the of and other as and in the of trans due to the of sex work in this It also the for public to this that for these people to public care is that trans people at the process of their a case in is in to The that of the trans the to their due to the of to public the notes is a among trans in Argentina to to the of the according to this had of a of those they have or guilty to the testimonies and at in their However, the notes that the of is among trans and the situation of this particular group as of trans have to and from and because of their gender identity, these have the of Law are by the of living of and discrimination of and for the and discrimination suffered in the is from the trans people that from administrative and other as of also in the in the for to in the and by the is also It by the of of these groups and with the of Law in which the of the in trans people and of these were the of and . . to the provided by the the to in the and and public discrimination the of and in the The were and government actions in public hospitals, and discrimination of not to labor an of or direct by on or in the and of is in by the people because of their or gender on the of the of the in of by their of the of as to people the of a discriminated because of his on are are by in of at by of the to be at the of their among other the only the on the and of people. people Ms. G., for life was a As a result, the with the state and its was with and of their an of the be understood that the by Ms. G. is as the state that the to the of the applicant are and the applicant, who is and have the burden of that her and life were by the of the not have to they are the not have to their violence not have to they are in to the burden of proof to the applicant would only result in of the people not their I that trans people, as of an not have the burden to that they to that group judicial to their to be . . the other is not for the in its as of at to simply—and the facts that the has It must be that of to justice are the evidentiary standards and that to their situation to the are in which of is not in of the but in a The process with the to in labor cases, law or criminal a from the of in of the consider the evidentiary of the respondent. . . . In the was stated that is not understood the GCBA is to any of the by the It be that the gender identity of the applicant was not by the but the I have as a generally are as It from the of the that the applicant a The facts and the demonstrate to the testimonies of the witnesses at the on . . is a woman and she the She stated that the applicant was deprived of her liberty on and to the at the time the police She that were of that their were in the and She that was for to or with people of the was for in which the person to the as by their prison was The by police the of in and not would the that by a street they would be a police and to a that as as she the applicant had no formal she stated that they other by and not public because they would the of not with their because they be to be had to with the person to of the stated that they in was to have any kind of as they not stated that the of the applicant was sex She that the applicant a formal “as they all had at She stated that was to find a formal to all the the the on any in to be a The she to and to that were of a person as a She to the in public but that, currently they her identity, are in which an to their expressed that she was Ms. G. any pension or financial or if she her She that on they she that the applicant not or She stated that the applicant not have because she to public hospitals, and that in public She that or in to the what government violence on Ms. G., and the that was the the time of the to the time of the of She that the of the Gender Identity they to have to that were law to and She stated that trans to but sex because they find She to be a but was not a of her situation and that of the trans the was about her . . . she the that I a in language and a in and due to the of all by a woman in the and not any identity I not any my is . . . and with that I and The are in the stated that the applicant was deprived of her which they all were at . . . She also referred to the and the situation of of the All of her or the applicant, who had been in the to and in The police that the most were the numbers and were the most they would be for to She stated that was because to be what to be and what were to . . . by the was the she stated that under she was in or She was the City of Buenos that she has in this city in her the would to to and a because I not in living this the endured in police she in the to which they were would and that were and the of the police She stated that she was in the police for and was not she had to in was to sex and She that G. was deprived of her liberty on in the prison of and she this was because of her the applicant had any formal the that this was that of She that she has a and was a for the of of her with the who to her because of her gender The of any to because that would result in their . . . In my case, I was was the would and for work and they would this to for a or I would be discriminated by my or or that the was if she what was the of the applicant, she and she that in a the that and I this with my to be raped in of or and at the a by an absent by the of that the applicant no state allowance or financial but she for because she a monthly of pesos. She about her and that was by The referred to the that the applicant had no She the for an allowance or of state because of her of were that of a and the judicial she was her my I in these she to have suffered discrimination in public and had to because of would to on the to the of the her to the endured and the a a in and of a that would not have in the first had the its other of is to the state provide to a person who has suffered of violence and discrimination to or what actions or were by the state the of G. the harms and by are in the nature of her stay in the and as a she had to in a and with an state that and her gender It is not about the in the of the of in that the of the they they the of a from the to the and suffered by the applicant are not or is damage to the that is all and It is not the result of a particular is part of a continuum. damage has no or because is a damage that is endured by the of establishing oneself as an autonomous in front of damage not from in the first rather what is is be state that the the the and and that are due to the of and actions to and the of Ms. G. in a of of the state is on the of of Ms. her is and that the state of the that are this judicial the in to the of the applicant and to the and that the of the applicant, find of The of life of transgender is and the with in a that and gender However, the damage that of the people, of their the applicant discrimination for the applicant an to the she life with of life the life of Ms. G. with of and of her of and of the was the of the applicant by the violence by and of the damage by Ms. G. her life as she was with in the process of her her of in her to her applicant has a that those who not and is to consider The of the applicant has been a this not be damage is to a or an by law is is the the or with of the and which in of this and as an of the of is by the as as the of the witnesses, that a situation of and discrimination the applicant because of her gender her as a trans I to that the discrimination endured has been of a nature and from and institutional The proposed witnesses as as the reports by also this which the of the damage by Ms. of legal system is by the and the the of their of the National and and of the on the Law of state is by its in to the of the applicant in a of to this is from the of with that gender identity, and of the an because in all or that is to that gender identity to and of which or not with the sex at the of the if of or by or other and other of and identity, is related to the and of the The to is of and in the to to to and due to the and of all on the due to the and of the legislation and the standards were and among of the of the and of of the of the of a of in the and of the of and of the on and of the and and of the as as and of the National the duty on all judicial of the of the on and in particular the duty to to the standards of and of the of I must the case of in which the has that of the is a of a to all the of the and the of the state to and the and of the and any is to the or any that be the of any of the in the is with . . . the of the law and the has stated that of from the of the and is to the of the individual. be with the that a group has the to because of its It is with that to a group as and with or to discrimination in the of which are to not The case law has also that at the of of the of and has the realm of The of and public on this and the legal the has that must from any that, in any or is at of or The are “to to or that in their to the of a group of the to that the state must with to and of with its or or and in that case, the of discrimination because of was to of the the by of which discrimination is not an or but the of the with the of the for the of other that have not been the the other of of the in the of the most for the and in of the of in law. In this in the the of the of the has in its to the of on their the of for an to the of as a of the of has stated that is in of the on that in the of v. the that is “a by of the It also that the of in has and is not in the of v. the that as of the that be under is of those on which are as in the that they are or to the and on and that be under the other in of the the of the Gender Identity Law are by the of in of the of the City of Buenos Aires is also because or the and by or by to to have been no public in at the of of the trans group the of or resources of the of the City of Buenos trans people have not been to has been promoted to public the that their are the of trans people in public is not by the of and at trans people to to in a and are by this has this any or to trans people, and the applicant in the and of the system are no public to the of the city on the that the Gender Identity Law be any kind of in the system that the gender those to the people are not in the that the City of Buenos Aires to and the of The state has not provided any evidence to this are no in for in public hospitals, and on for the of identity and The law is in this sets the of public but the trans is not trans groups are by and this is because they the of In this Law not the of trans a to identity in people are they not have to their or gender in the a of the law for the of the trans is no evidence in the case that that are and for the and all public officials who are in a to or trans people from to or or the have any standards for this for the Action by the of as a for those who justice in or gender identity, and concerns about these of to because the and are no from or but these of are by and are for the and I consider a the state identified and the of of Ms. G's and other is in the I have no that the to the damage that Ms. has City of Buenos Aires is in for the to in its to the of the However, the with as by of the was to and the situation of transgender people, the group to which the applicant the and were the and that to the of the applicant be only as a of of as was their to to the and in the the and the of the of the City of Buenos on in this case, I to the by the to the of the state as a in these I stated that the to the of the and is in the of an decision, to its and that are at is by of by the of . . to my of the in of the and by the expressed by the of the in particular and the be by the City of Buenos was due to its of that the applicant suffered the the government's is only these I that the GCBA be sued and be for the that have been in the must be that the of of in the of the of to an and direct and is not to the of of the the or of state or officials be to the the state must be as a and in a direct a to their in a state of a of by the The for the of the state is to people, their and their if is due to or the state has to its of has stated that direct on the of is as a or to the of the the nature of the the to provide the the the and the and the of of damage the situation of Ms. G., a trans person in the City of Buenos the by the state and the to provide an that to the of transgender people, to the that the state is the damage was in of the of the trans is that the has legal and has also to the by the for the of the of transgender of was insufficient, as has been that to an of and by and the of the City of Buenos Aires the and of public time to those of a is provided by Law which the of or to their according to their gender However, is an that the to or other of of the trans The of the law is by its to the by the applicant in the case at a that of the and of discrimination on of However, an with of the which the and of sex on the As as are no for the of trans and discrimination to the only left to those the of in is for a state with the duty to the of the I consider that the in of the of the City of Buenos Aires has not been to the of and of that the applicant from her of in the and in of the National would be of all if the that Ms. G. was deprived as the to a would not have a state of the sets as a that the damage must be the that from the of a and public law state to its and by to the to a gender identity, and other It is in the of in the to gender identity of the applicant that must also be The the of by the state to to the in the and is the and that the its legal in of the be to an for the recognition of the by is an of the to as the I that by to the of the applicant the would an I with the of Ms. legal in this legal or with which the applicant is a of law that that damage must be is not a legal The the that is by a is on the of judicial In as the a judicial decision that to not the of those in state to the to and and and to the of its with a to the of the in the by all the of of this in that in an and the of the of the The to of not the of the other as the that is by . . . that part of a this is to the by in the case v. Government of the City of Buenos Aires the of public of the GCBA to to In the of stated the that a of the the of the government to its the of in the and in and that the of the by the is and that is part of an the of its law as for its to a on the Law of the argument of the of and to a and of of that and that the of legal but not if the of the would would also be proposed of the in the of an claim for the of and a that would be in the but has been the is The has an in the of these but its is not absent in this the of a is not the by the state but the of any legal to the to claim for of the duty It is only possible to consider a an or to is to by a or the of a judicial decision with the duty from the of their this decision is only for the that for Ms. G. and judicial decision not have the of a of an of the other administrative to a on the to that a judicial decision the to an that and by the of in the of the and the that the National and the of the City of Buenos in are not but of the that the discrimination suffered by Ms. G. was not only to the work and an of The applicant suffered and to The and endured have been numerous and and have her of to and the to the of her life with be in of the by the . these the in of the claim by the applicant, G., and the to pay a monthly allowance to the applicant, equivalent to the minimum living . . .

Massimo Cartabia

The European Court of Human Rights (ECtHR) shows increasing sensitivity to issues of nondiscrimination and―as Carmelo Danisi rightly notes in his article1―the scope of the prohibition of discrimination contained in article 14 of the European Convention of Human Rights (ECHR) has definitely been extended. Not only is the number of cases decided on the grounds (or also on the grounds) of the principle of nondiscrimination growing, but―more significantly―the class of cases based on the aforementioned provision reveals that whenever a highly controversial, delicate, or questionable issue is brought before the Court, the principle of nondiscrimination is always reserved a major role in the judicial reasoning. Undoubtedly, the ECtHR is adopting a more proactive role in the fight against any kind of discrimination, and this new attitude is in part influenced by the EU institutions and other international bodies. The survey of the European jurisprudence provided by Danisi presents a self-confident Court applying severe standards even at the cost of narrowing the margin of appreciation that the ECHR accords to member states. The only notable exception is the case of same-sex marriages. On the basis of the account offered by Danisi’s article, I would like to inquire into the reasons for the expanding role of nondiscrimination in the ECtHR’s case law. I will argue that this expansion is intertwined with the liberal ideal of protecting everybody’s right to the freedom of choice on a neutral basis. Considered in this light, the case law of the ECtHR appears to be more problematic than in the picture portrayed by Danisi. Sometimes the Court’s attitude seems inconsistent and leads to unpredictable results. However, it is more important to notice that nondiscrimination judgments intrinsically lack the neutrality that is often ascribed to them. Many good reasons account for the prominence of nondiscrimination in contemporary European jurisprudence. One of these, and not a minor one, is related to the perception that prima facie nondiscrimination is a commonly shared, non-negotiable principle because it provides a neutral ground on which to settle the most hotly debated controversies of our postmodern society: gender issues, reproductive rights, bioethical problems, the notion and role of the family, law and religion, the protection of ethnic minorities in multicultural contexts, and so on. No matter what one’s personal opinion regarding these disputes may be, the solution should not result in the discrimination of any group. In a way, when a debate touches on the point of nondiscrimination, the tone changes from a judgmental to a neutral one. Whereas controversies about rights and their limitations require difficult balance among competing values and are deeply divisive, nondiscrimination is perceived as a common, undisputed goal. A good example showing the “neutralizing effect” of nondiscrimination is S.H. v. Austria,2 a recent case regarding medically assisted procreation. The case has its origin in an aspects of Austrian legislation which limits access to techniques of artificial procreation that involve the use of ova and sperm from donors. The reasons for these restrictions―as explained by the Austrian institutions and shared by other European states―were based on public values and interests competing with the individual desire to have a child, such as the protection of the biological identity of the children, the prevention of eugenic reproduction, the exploitation of women, and the commercialization of maternity. The European Court does not enter into a discussion about the legitimacy and the justification of the limitations imposed on individual rights by the national legislation. Instead, it takes a different approach: if the right to privacy encompasses “the right of a couple to conceive a child and to make use of medically assisted procreation for that end,” it must be guaranteed without discrimination, the Court says. Therefore, following the Court’s reasoning, all restrictions on medically assisted procreation should be banned because every regulation may have the effect of denying some couples the possibility of having a baby, ultimately amounting to discrimination. The issue that was brought before the Court was a veritable conundrum and did not have any easy solution. However, no matter how disputable any alternative option would be, in this case, it was clear that the arguments based on nondiscrimination worked as a discussion stopper, thanks to its aura of neutrality. As a matter of fact, according to liberal ideals, law is to be neutral in order for all personal choices to be allowed and respected. The liberal ideal wants each person to decide for oneself what one values and how one is going to live one’s life in the light of these values; one must be entitled to a set of “deliberative freedoms,” allowing one to live following one’s personal preferences. Nondiscrimination is a prominent tool for securing these deliberative freedoms3: when nondiscrimination is respected, everybody can freely accede to one of the options at stake, regardless of color, sex, race, or preferences. Liberal ideals affirm that people should not have to factor certain traits of their identity into their deliberations. Nondiscrimination is essential to the liberal project because it urges the removal of all hindrances to free choice. Although in the past liberty and equality were considered competing values, in the current postmodern liberal society freedom of choice and nondiscrimination reinforce one another: they are the twin cornerstones of contemporary legal order. Their intimate kinship is mirrored by the frequent use, in the cases brought before the ECtHR, of article 14 of the ECHR on nondiscrimination in conjunction with article 8 on the right to privacy―the very origin of the right to free choice. The interaction between nondiscrimination and freedom of choice has the ambition of squaring the circle by protecting diversity without creating inequality: differences in reality should not matter in the legal realm because nondiscrimination aims at correcting reality.4 Seen through the lens of nondiscrimination, all differences become indifferent before the law. In this perspective, nondiscrimination has a neutralizing effect; it serves the aspiration of liberal society to neutrality.5 I would like to put to the test whether or not the principle of nondiscrimination maintains its promise of neutrality in the practice of the ECtHR by looking at the examples examined by Danisi and other scholars. In the overview of the cases I will focus solely on the issue of neutrality: I am not interested here in discussing the merits of the decisions. Whether or not I agree with the results of the decisions taken into consideration is not relevant to the purpose of the present discussion. According to Danisi’s narrative, the ECtHR is increasingly developing the principle of nondiscrimination, with the relevant exception of same-sex marriages. At first sight, all recent evolution in European jurisprudence fits into Danisi’s analysis, but on closer examination the ECtHR’s case law appears to be more “unprincipled.” It is true that in numerous recent cases discrimination is given prominent attention; however, it seems occasionally to be overshadowed by other prevalent concerns, depending on the factual situation and on a case by case basis. For example, in Opuz v. Turkey,6 a case concerning domestic violence in Turkey, the discrimination issue is intentionally brought into the spotlight by the Court. The decision condemns Turkey for violating articles 2 and 3 of the ECHR because the national authorities failed to take adequate measures to prevent an aggressor from carrying out his threats against the physical integrity and the life of the victims. The Court could have stopped there, as it happens in many cases where the violation of a plurality of rights and of articles of the Convention is alleged by the plaintiffs. In the Opuz case, however, the Court went on to examine the issue of nondiscrimination and reiterated the condemnation of Turkey also on the basis of article 14. The result of the decision in this specific case was not affected by the Court’s further statement, because the violation of the right to life and personal integrity is of paramount gravity; but the insistence on the non discrimination issue gave the Court the opportunity to draw attention to the status of women in Turkey and to the many forms of discrimination to which they are subjected. To put it bluntly: the Court wanted to make a case against the discrimination of women in that society. Let us now consider the following case dealing with discrimination on the grounds of sexual orientation. Santos Couto v. Portugal7 is a decision concerning a man convicted for homosexual relations with adolescents. Since the Portuguese criminal code has two different provisions for heterosexual and homosexual relations with adolescents, the second being more severe than the first, the applicant argued that his conviction was discriminatory and based on his sexual orientation. Notwithstanding a relevant precedent,8 in which a request similar to that filed by the applicant was granted, the ECtHR issued a finding of nonviolation. Focusing on the concrete circumstances of the case, the Court showed that the man would have been convicted even on the narrower grounds of the provision envisaged for heterosexuals. Consequently, in this case, his sexual orientation was not considered a relevant feature to be taken into account. By contrast, in Kozak v. Poland,9 as Danisi says, the European Court attached great importance to the argument of sexual orientation. Despite the unclear nature and duration of the relationship between the two partners, in the Court’s opinion “the relevant element was not the question of the applicant’s residence in the flat or the emotional, economic or other quality of his relationship with [his partner] but the homosexual nature of that relationship.” Had the Court used the same “test of resistance” that was used in the previous case―i.e., had the Court inquired whether or not in that particular case the right of succession to the tenancy would have been denied even if the applicant had been in a heterosexual relationship―the result might have been different. At the same time, in the Santos Couto case, should the Court have stressed that the Portuguese criminal code had stricter rules applying to homosexual relations with minors, the decision might have been the opposite. Not only is the nondiscrimination clause susceptible to being applied inconsistently by judges, but, in most cases, the very structure of the discrimination test as such is responsible for the unpredictable outcomes of the controversies. Nondiscrimination is one of the most valuable principles of our legal civilization, one which has significantly contributed to advancing the legal treatment of vulnerable groups and to the redressing of wrongs which occurred in the past; and yet it is not, and cannot be, a neutral principle. As a matter of fact, judging nondiscrimination implies drawing a comparison between different persons and situations. Comparing people is not a mechanical activity but requires the highlighting of a specific relevant feature which has to be taken into consideration for the comparison. The trouble with determining nondiscrimination is that no two people are alike in every respect and, at the same time, all people are alike in some respect. Consequently, statements of nondiscrimination entail comparisons of two persons by reference to some criteria that determine the relevant aspect in which those persons are alike or different. The choice of the “relevant feature of comparison” governs the outcome of the judgment. Let us return to the case of Orsus v. Croatia,10 examined by Danisi, regarding Roma students who complained about being assigned to separate classes.11 Were they assigned to special classes because they lacked a sufficient command of Croatian, as the First Section decided in its judgment of July 17, 2008?12 Or were they victims of racial discrimination, as the Grand Chamber eventually decided? The choice of the comparator determined the results of the two decisions. Who are the “like” students to be compared with in this case? If the linguistic skills were the relevant feature to be taken into account, then the result would be a finding of nonviolation; if, instead, the question of race were to prevail in the analysis, then the Court would reach the opposite result. The hazy character of nondiscrimination judgments is particularly salient in cases concerning the status of the family, same-sex couples, and other types of relationship, which have frequently been brought to the attention of courts in recent years.13 Most of them involve homosexual couples claiming the same rights and privileges as those accorded to married couples. According to Schalk and Kopf v. Austria,14 European states are not obliged to extend marriage license to same-sex couples, since article 12 of the ECHR provides men and women with the right to marry and to found a family. Nevertheless, the Court says that the notion of “family life” under article 8 applies to same-sex and other de facto unions. Consequently, different forms of protection are considered consistent with the European Convention. In many European countries, but not in all of them, registered partnerships have gradually extended to same-sex couples a certain number of benefits and privileges that used to be limited to married couples. Differences between marriage and union partnership can be acceptable, says the Court, especially as far as parental rights are concerned. Moreover, at the opposite ends of the spectrum, some countries recognize same-sex marriage while others envisage neither marriage nor legal partnership for same-sex couples. Is this diversity in the domain of family life a matter of nondiscrimination, or does it have to do with the difference in values that each society attaches to marriage and family ties? The ambivalence of these controversies is made clear by an awkward request brought before the Court in the case of Burden v. United Kingdom.15 Two aged sisters, having lived together their whole life, claimed the same inheritance tax exemptions as married and civil partnership couples. They asserted to be in an analogous position to married couples or civil union partners, and affirmed that the different, unfavorable treatment applied to their situation was discriminatory. The ECtHR, of course, rejected their request. What is interesting for the purpose of our discussion is the Court’s reasoning. The Fourth Section16 justified tax exemption and its scope by evoking the peculiar value that societies attach to marriage and which, in many cases, they extend to civil partnerships: national legislation can legitimately limit fiscal benefits to the relationships most valued in that society. The Grand Chamber, on the other hand, focused on the analogy and differences between two siblings cohabiting for many years and married or union registered couples. The outcome was the same, but, in my view, the legal arguments in the reasoning of the Grand Chamber were weaker and ultimately concealed the real question under debate, namely the interests pursued by the legislature by means of the fiscal policy. It is not difficult to foresee that the Court will be called on again very soon to take sides with respect to different attitudes adopted by national legislatures towards family life, and the question to ask is whether nondiscrimination is the only appropriate grounds on which to settle these disputes. The trouble is that in these cases nondiscrimination is no more neutral than rights-oriented arguments, and it might end up concealing the value choices made. The principle of nondiscrimination proves to be a flexible and fluid benchmark whose shape derives, as we have seen in this quick overview, from the rights at stake and the class of the rights holders involved, the factual circumstances of the case, and the social and political background. In many cases discrimination assessments involve value choices to no lesser extent than any other decision concerning the scope, content, and limitations of rights. If this is true, some consequences should be taken into account by the Court. These include: (a) The burden of proof: a widespread bias about nondiscrimination was pointed out years ago by Isaiah Berlin: “the assumption is that uniformity, regularity, similarity, symmetry … need not be specially accounted for, whereas differences, unsystematic behavior, change in conduct, need explanation and as a rule, justification.”17 In legal terms, this bias translates into a general presumption in favor of equal treatment: whenever a difference in treatment is to be applied, the burden of proof shifts onto the advocates of the difference―in the cases before the ECtHR, usually onto the defendant government. This presumption, and the consequent shift in the burden of proof, must be questioned if we agree that the weight of the nondiscrimination argument needs to be modulated according to the rights and the rights holders involved in each particular case. (b) The margin of appreciation: as Danisi points out, the expansion of nondiscrimination issues has the effect of constraining the margin of appreciation of Member States to the point of rendering it meaningless. However, nondiscrimination does not necessarily imply uniformity of national legislation, as other experiences demonstrate. It can be plainly said in relation to the system of the European Convention that “the default value is autonomy of political and moral identity [of its members] which requires justification only if purposely abused.”18 This is true in all cases, and the margin of appreciation is not necessarily to be ruled out when nondiscrimination comes into play.

Charlotte Villiers, Fidelma White

ConclusionsIn Spring, negligence again presents itself as the avenue through which judges reform private law.The emphasis throughout was on negligence, although the speeches of Lords Woolf and Slynn demonstrate that contract could have provided a remedy.It is somewhat surprising that the contractual analysis did not dominate the speeches, especially since Scally indicates that the contractual analysis should be preferred in cases involving harm arising from e m p l ~y m e n t .~~ Yet only Lord Woolf held that the 'primary source of any liability is contractual rather than tortious,' since the relationship with the defendants arose from the previous engagement;55 the other Law Lords did not address the point.We might also ask what would have happened if the plaintiff had brought the action in defamation.Would their Lordships have found a remedy by reforming the law of defamation?For example, would they have held that qualified privilege should not be available to employers or, if available, it should be rebuttable by proof of carelessness rather than malice?Certainly, Derbyshire County Council v Times Newspaperss6 suggests that the House of Lords is willing to take a fresh look at the rules of defamation where political values are at stake; would it do so where more personal or commercial values are at stake?It seems doubtfuls7; perhaps the employer's qualified privilege has stood too long in a tort 'beyond the redemption of the courts'58 for the judiciary to re-examine it.59And perhaps the return of a more liberal view of negligence makes it unnecessary. Agitating for Part-Time Workers' Rights Charlotte Villiers and Fidelma White"In 1994, progress was made for part-timers in the pursuit of their rights at work.In Equal Opportunities Commission v Secretary of State for Employment,' the House of Lords, having recognised the standing of the Equal Opportunities Commission (EOC), granted a declaration that provisions of the Employment Protection (Consolidation) Act 1978 (EPCA) indirectly discriminate against women and therefore are incompatible with European Community law.This involved reversing the decisions of the Divisional Court and the Court of Appeal.This case is significant for a number of reasons.First, while the case recognises the need to protect part-time workers, the EOC was successful because it was held ~ 54 supra n 48, at pp 302-304 (per Lord Bridge).55 supra n 1, at p 390. Cf South Pacific Manufacturing Co Lid v New Zealand Security Consultants & Investigations Ltd, supra n 18, at p 297 (per Cooke P). 56 [1993] AC 534.57 But see Lord Woolf, supra n 1, at p 400: 'it by no means follows that so far as references are concerned the same view should be taken of public policy as was taken when Whiteley v A d a m was decided.' 58 Slim v Daily Telegraph Lid [1968] 2 QB 157 (per Diplock LJ).59 cf White v Jones, supra n 3, at p 216 (per Lord Mustill), and Hedley, 'Recovering Lost Legacies: White v Jones in the Lords' [1995] 1 Web JCLI: 'if we are truly convinced that the will admitted to probate does not reflect [the testator's] wishes at the time of his death, why admit it to probate at all?'