The Horizontal Equality Clauses (Arts 8 & 10 TFEU) and Their Contribution to the Course of EU Equality Law: Still an Empty Vessel?

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Table of Contents: I. Introduction. – II. Individual horizontal clauses as an empty vessel. – II.1. Equality concerns incorporated in EU law-making before the horizontal clauses. – II.2. No autonomous function for horizontal equality clauses. – III. The contribution of horizontal clauses to the crossing. – III.1. An aid in the case-law of the ECJ. – III.2. An aid in the broader context of EU governance. – IV. Where is the vessel heading? The quest for the effectiveness of the principle of equal treatment in EU law.

Abstract: About 15 years ago, Jo Shaw asserted that what is the current art. 10 TFEU was “largely an empty vessel”. Several years down the road, the present Article takes Shaw’s statement as a starting point to examine the two articles of the current EU Treaties that are most commonly associated with the idea of equality mainstreaming in contemporary EU law: art. 8 TFEU and art. 10 TFEU (section I). It is argued that these articles rather than fulfilling a new function, actually primarily illustrate and give visibility to a political will to use existing tools to enhance the protection of equal treatment in EU law. We will explain first why these articles taken in isolation can still be considered an empty vessel (section II). Yet, although the horizontal clauses have not had much added value, they have actually been used. We therefore subsequently explore how the clauses have been employed, both in ECJ case-law and in a broader EU governance context (section III). By way of concluding comments, we investigate the existence of other possible avenues for improving the equality agenda in the EU legal order (section IV).

Keywords: equality mainstreaming – art. 8 TFEU – art. 10 TFEU – equal treatment – horizontal clauses – equality agenda.

European Papers, Vol. 7, 2022, No 3, pp. 1381-1403
2499-8249 - doi: 10.15166/2499-8249/621

* Professor of European Law, KU Leuven,
** Doctoral researcher, KU Leuven,
*** Doctoral researcher, KU Leuven,


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