The Judicial Construction of Europe

By Alec Stone Sweet | Go to book overview
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4 Sex Equality

With Rachel Cichowski

In Chapter 3 , we saw how the commitment logics of federalism gradually came to infuse the politics of judicially-governed market-building under the Treaty of Rome. The outcome can only partly be understood in terms of original Member States' decisions to delegate to the Court and the Commission. After all, the legal system itself generated the necessary conditions for some of the most important outcomes produced, and it did so in the absence of Member State authorization. Most important, the European Court of Justice (ECJ) interpreted Art. 28 so as to confer, upon traders and other private actors, rights enforceable in the national courts. In doing so, the Court went far beyond what any purely functionalist theory of judicial governance within federalism would require for market integration to proceed. 1 In developing a rights-based jurisprudence, the Court enhanced the effectiveness of free movement of goods provisions, and constrained the Member States further than they had ever considered necessary or appropriate. The ECJ's position as trustee made such a jurisprudence possible, while an aggressive rights posture further reinforced the Court's fiduciary powers, in partnership with national judges.

This chapter charts the evolution, through adjudication, of rules governing a quite different domain of European Community (EC) law: sex equality. In 1976, the Court (Defrenne II, ECJ 43/75) recognized the direct effect of Art. 141, which provides that male and female workers shall receive equal pay for equal work. It also announced that Art. 141 “forms part of the social


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