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Perspectives on European Politics and Society


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Constituting and Reconstituting the Gender Order in Europe


Sara Clavero & Yvonne Galligan
a a a

School of Politics, International Studies and Philosophy, Queen's University Belfast, Belfast, UK Published online: 02 Apr 2009.

To cite this article: Sara Clavero & Yvonne Galligan (2009) Constituting and Reconstituting the Gender Order in Europe, Perspectives on European Politics and Society, 10:1, 101-117, DOI: 10.1080/15705850802700058 To link to this article: http://dx.doi.org/10.1080/15705850802700058

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Perspectives on European Politics and Society Vol. 10, No. 1, 101117, April 2009

Constituting and Reconstituting the Gender Order in Europe


SARA CLAVERO & YVONNE GALLIGAN

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School of Politics, International Studies and Philosophy, Queens University Belfast, Belfast, UK

ABSTRACT The existence of a European gender order is intrinsically connected with the creation and development of the European Union. The construction of this order a combination of values, laws and practices seeking to give eect to gender equality is contested at both supranational and nation-state levels. This article takes Ostner and Lewis two needles eyes thesis to discuss the European and national constraints on the adoption of and compliance with the directives that constitute the hard law of this transnational gender order. It examines the evolution of the legal order on gender equality, noting that the Amsterdam Treaty ushered in a more expansive context for the application of gender norms and practices. It also explores the extent to which member states have been open to the Europeanization of national gender regimes. It nds that challenges continue to exist at European and domestic levels to the extension, and implementation, of laws, policies and practices facilitating gender equality. It also nds, though, that the pattern of compliance in the Eastern enlargement countries is not out of step with the implementation patterns in older member states, even though social conditions are very dierent. In general, the study concludes that although the context for the construction of a gender order in Europe has changed, supranational and national challenges to gender equality persist. KEY WORDS: Gender order, gender equality directives, compliance, enlargement, Europeanization

Introduction Understanding patterns of national compliance with EU legislation in a multi-level system of governance has increasingly attracted the attention of scholars in the elds of European studies, comparative politics and international relations (Haas, 1998; Lampinen & Uusikyla, 1998; Mbaye, 2001; Kaeding, 2006; Haverland & Romeijn, 2007; Thomson et al., 2007). Closely connected to questions of compliance, yet expanding its (somewhat narrow) focus, a burgeoning literature inquiring into the impact of European integration on domestic change has emerged. Under the rubric of Europeanization studies,1 this research programme focuses on two central questions. The rst one is whether the processes of European integration are leading to convergence among member states with regard to the rules, ideas and beliefs for
Correspondence Address: Sara Clavero and Yvonne Galligan, School of Politics, International Studies and Philosophy, Queens University Belfast, 18-22 University Square, Belfast BT7 1PA. Email: S.clavero@qub.ac.uk; y.galligan@qub.ac.uk ISSN 1570-5854 Print/1568-0258 Online 2009 Taylor & Francis http://www.informaworld.com DOI: 10.1080/15705850802700058

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dealing with common problems and making decisions, while the second question asks about the forces driving these processes in other words, about the conditions that need to be in place in order for convergence to occur (Borzel & Risse, 2000; Wallace, 2000; Liebert, 2002). Despite the explosion of scholarly interest in this eld of research, questions that are specically concerned with the Europeanization of gender norms remain underexplored. Such lack of attention to the gender aspects of Europeanization is somehow surprising, given that equal opportunities is one of the most developed areas of EU social policy and EU supranational institutions are endowed with a great deal of power to regulate the governance of gender relations in member states. As Mazey (1998) noted the development of EU gender equality policy delivered a shock to national policy systems. Yet, while there is a broad consensus that the EU has played an important role as a regulator in the eld of gender equality, there is very little systematic comparative research exploring the extent of convergence in this policy area, analysing the dynamics of those processes, and assessing their impact on the gender order. Moreover, the very few comparative studies which have been conducted to date are mainly focused on old member states that is, those making up the EU prior to the 2004 Eastern enlargement. At the same time, a number of signicant developments in the EU throw new light on old questions regarding the factors that act to facilitate or obstruct the Europeanization of gender norms. These developments include the enlargement waves prior to adoption of the Treaty on European Union (1992), the more extensive interpretation and application of equal opportunities in the Amsterdam Treaty (1997) and the accession of eight post-communist states in 2004. Against this background of political developments, this article concentrates on discussing the dynamics involved in the adoption, transposition and implementation of gender equality directives. It should be noted that although EU regulation in matters of gender equality is also carried through soft measures such as positive action programmes (e.g. the Roadmap for Gender Equality) and knowledge-based instruments (such as the open method of co-ordination) this article focuses on the hard law of directives. Research on the Europeanization of gender norms has traditionally been shaped by a widespread view according to which the potential of the EU to eect domestic change in the eld of gender equality is very limited as it has to pass through important lters operating both at the supranational and domestic layers of governance. Often termed the two needles eyes thesis (Ostner & Lewis, 1995), it posits that, at the supranational level, the potential of the EU to eect change is heavily constrained in two ways: rst, by the fact that legislation on these matters is informed by a very narrow conception of gender equality understood strictly in terms of equal treatment in the workplace and, second, by a stringent institutional requirement of consensus in the Council, which gives member states the power to systematically block, or dilute, substantial proposals. In addition to this, the potential of the EU gender legislation to eect domestic change is also constrained at the national level because the implementation of these measures, though binding on all member states, depends heavily on the gender order, or gender regime, operating in each individual state. Broadly dened as the norms, principles, and policies informing the allocation of tasks, rights, and life chances to individuals of dierent

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sex, Ostner and Lewis (1995, p. 185) classied gender regimes according to the strength and weakness of two norms, one, assumptions about who is the primary and who the secondary breadwinner or caregiver, and, two, how these assumptions are crystallized in the various institutions that constitute a member states welfare regime. They distinguished between strong, moderate and weak male-breadwinner states and hypothesized that those states which rely particularly heavily on the family and on womens unpaid caring role are those that will be most likely to mount the strongest challenges to EU gender policies, and to be the most resistant to eective implementation. In sum, gender regimes operate as gatekeepers, favouring policies compatible with culturally transmitted assumptions about gender roles. Given the diversity of gender regimes across Europe, it is to be expected that the implementation of the gender directives will widely vary from country to country. In the following sections we explore the constitution and re-constitution of the gender order at European and national levels through the Ostner and Lewis analytical lens. In the following paragraphs, we discuss the construction of the EU legal order on gender equality. Sections two and three discuss the previous three enlargement rounds before turning to the varied experiences of East European countries in bringing national gender laws into conformity with EU requirements. The paper concludes with a reection on the impact of enlargement on shaping national gender relations frameworks. The EU Legal Order on Gender Equality The cornerstone of the EU corpus of gender equality laws and policies reside in article 119 of the 1957 Treaty of Rome, which provided for equal pay for equal work (now article 141 of the Treaty of the European Union). Modestly constructed as a provision to enable the harmonization of social costs in the interests of equalizing economic competitiveness (Hoskyns, 1996, p. 49), Article 119 was later to provide the anchor for the development of gender equality policies in the European Union. The new political space opened up by transnational governing arrangements was not solely the preserve of national governments and the Commission. Organized strike action by working women coupled with case-law development in the European Court of Justice gave focus and substance to the equal pay provisions (Hoskyns, 1996, pp. 6096). Yet the EECs overall commitment to the realization of gender equality during the early period lagged considerably behind that of other supranational bodies such as the International Labour Organization and the United Nations (Reinalda, 1997, pp. 208209). It took the rst enlargement from the six founding members to nine member states (with the accession of Denmark, Ireland and the UK in 1973); together with the development of case law in the European Court of Justice; a fresh commitment to social policy by the Commission (as a way of building public support); the activism of individual women committed to gender equality within the Commission and support from the active womens groups in the European Trade Union Confederation, to provide the conditions for the creation of a substantial framework of supranational laws and policies on gender equality (Reinalda, 1997, pp. 213214). This legal framework for gender equality can be seen as constituting the rst stage of the EUs gender order.

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The rst enlargement, then, paralleled the rst real eort to deepen European commitments to gender equality. At the time this gender order was framed as equal treatment, with actions that guaranteed women the same rights as men in the eld of employment. During the 1970s, directives on equal pay for work of equal value (75/ 117/EEC), equal treatment in the workplace (76/207/EEC), and equal treatment in social security (79/7/EEC) were adopted. Although the equal treatment directive legitimized positive action by allowing measures to promote equal opportunity for men and women (article 2(4)), this was a very weak provision. It was vague in prescription and its adoption by member states was optional (Rossili, 1997). As we will see, it was not until this directive was amended in 2002 that the concept of positive action was claried and better dened. The decade of the 1980s is characterized by a period of stagnation in the development of gender equality legislation. This was partly due to the fact that almost all directive proposals submitted by the Commission were blocked by member states. These included a directive on part-time work, rst drafted in 1981 and blocked by the United Kingdom government on several occasions. This directive would not see the light of day until 1997, 12 years after it was initially proposed. A directive on parental leave, rst drafted by the Commission in 1983, was repeatedly blocked by the Netherlands and UK governments. This proposal had to wait until the pregnant workers directive (92/85/EC) and the parental leave directive (96/34/EC) were nally adopted in 1992 and 1996 respectively (van der Vleuten, 2007). The directive on the burden of proof in sex discrimination cases (97/80.EC), dening indirect discrimination in the context of equal treatment, was also drafted in the 1980s by the Commission, but blocked a number of times in the Council and in 1994 by the United Kingdom government. The proposal was sent to the European Parliament for consideration in 1996, where it received a welcome. Although the Parliament and the Commission sought to amend the draft directive, the Council ignored these recommendations, signicantly weakening its provisions. The directive was nally passed by the Council in 1997 (van der Vleuten, 2007, pp. 157158). At this point it is worth noting that until the signing of the Amsterdam Treaty the only legal provision explicitly allowing the EU to legislate on matters of gender equality was article 119 on equal pay in the Treaty of Rome (1957). Nonetheless, the directives on equal pay, equal treatment, equal treatment in matters of social security, equal treatment in occupational social security schemes, equal treatment for the self-employed, pregnant workers and parental leave were not provided on the basis of article 119 on equal pay, but on the basis of articles 308 (ex article 235, on supplementary powers); 94 (ex article 100, on the approximation of laws); 137 (ex article 118, on workers health and safety); and the agreement on social policy, article 4(2). The Amsterdam Treaty signicantly increased the powers of the EU to legislate in matters of gender equality. First, it broadened the scope of existing EU legislation regarding gender equality in employment as the new article 13 allowed the Council, for the rst time, to take action against all forms of discrimination outside the eld of employment, including discrimination based on sex or sexual orientation. Second, article 141 (ex article 119) allowed the EU to act not only in the area of equal pay but also in the wider area of equal opportunities and equal treatment in matters of employment and occupation, as well as authorizing positive action in favour of

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women. Third, the Treaty of Amsterdam imposed a general obligation on the EU in all of its activities to eliminate inequalities (article 3.2) and to promote equality between women and men (article 2). Even though these last two articles do not create legally enforceable rights for European women, they do represent a Treaty-based political commitment to gender mainstreaming which the Commission could cite as both legal authority and political cover for its subsequent proposals. And last, but not least, under the new article 141, the Treaty also provided for qualied majority voting in the Council and co-decision with the European Parliament for future equal opportunities legislation.2 This is an important development, because the enhanced powers of the European Parliament (especially given the strong advocacy of womens interests by the Committee on Womens Rights and Gender Equality) oers a greater prospect of far-reaching gender equality policies in the future. In all, the Amsterdam Treaty marks a signicant positive development in the framing of Europes gender order extending the principle of gender equal opportunities well beyond that of employment. Three gender equality directives were introduced subsequent to the Amsterdam Treaty: the amended directive on the implementation of the principle of equal treatment for men and women as regards access to employment, vocational training and promotion, and working conditions (2002/73/EC); the goods and services directive (2004/113/EC); and the recast directive on the implementation of the principle of equal opportunities and equal treatment in matters of employment and education (2006/54/EC). The 2002 directive amending and updating equal treatment provisions was the rst gender directive to be adopted jointly by the Council and the Parliament under the co-decision procedure. Based on article 141 of the Treaty, it takes a more proactive approach to gender equality. It revisits the concept of positive action, conrming that member states can adopt measures with a view to ensuring full equality in practice between men and women (article 1(8)). Though this provision does not impose an obligation on member states, they are required to report to the Commission on measures adopted under this provision every four years. In addition, the directive mandates member states to create bodies for the promotion, analysis, monitoring and support of equal treatment. However, despite the involvement of the European Parliament (which signicantly improved the nal text), this directive has been labelled a host of missed opportunities as it failed to take full account of the new articles 2, 3 and 141 of the Treaty of Amsterdam (Masselot, 2004). The goods and services directive (2004) is the rst gender equality directive based on article 13 of the Treaty and also the rst legal instrument aimed at eliminating gender-based discrimination outside the workplace. It spanned equal treatment in the elds of education, health, taxation, advertising and the media and access to and supply of goods and services. Shortly after this directive was announced in 2000 (in a communication on the social policy agenda adopted at the Nice Council) womens organizations, especially the European Womens Lobby (EWL), began to lobby for a widening of the application of the directive in areas hitherto not covered by EU gender equality legislation. Issues such as parity participation in decision-making, violence against women, and the reconciliation of family and working life, in addition to the areas already covered in the draft directive were presented by the EWL for inclusion. The Commission refused to consider the inclusion of these

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additional policy areas. In its nal form, the directive became a very diluted version of a more ambitious draft circulated by the Commission that had found support with the European Parliament and womens organizations. The main points of controversy during the legislative process focused on two aspects. One was the exclusion of education, taxation, advertising and the media from the scope of the directive. The second was on the introduction of an opt-out clause on the elimination of sex discrimination in the insurance sector. This latter point allowed the insurance industry to derogate from the gender equality principle and gave companies a transitional period of eight years to make the necessary adjustments (Caracciolo di Torella, 2005). A major problem faced by womens rights advocates during the decision-making process was their limited capacity to inuence the negotiations leading to the enactment of the directive. Based on article 13 of the Treaty, it was passed through the consultation procedure, so that the powers of the European Parliament to make extensive improvements were limited. Nonetheless, some of the Parliaments demands were taken into account. For instance, the directive reects a commitment to achieve substantive equality based on articles 2 and 3 of the Treaty, insofar as it contains a concept of gender equality which goes beyond an obligation not to discriminate on the grounds of sex. The Recast directive (2006) focused on enhancing the clarity and transparency of existing EU legislation on gender equality. It also sought to bring EU provisions into line with European Court of Justice (ECJ) case law by integrating dierent directives into a single piece of legislation. Thus, the directive incorporates articles 2 and 3 of the Treaty by moving away from the principle of equal treatment to that of equality of women and men as a fundamental principle of the Community (Burrows & Robison, 2007). In addition, the directive takes a more proactive approach to equality, incorporating the concept of positive action as a horizontal principle applying across all the provisions to which it refers. However, the recast directive left the pregnant workers directive and the parental leave directive out of its scope, despite calls for their integration from womens organizations and the European Parliament. The Commission justied this exclusion by claiming that the legal base of the parental leave directive was very dierent to the legal basis underpinning the other directives. With regard to the pregnant workers directive, its exclusion from the recast directive was justied on two grounds. One, the Commission argued that its incorporation would not contribute to greater clarity but, on the contrary, might cause some confusion given that other maternity rights would remain in separate pieces of legislation outside of the recast directive. Two, the Commission argued that including the pregnant workers directive in the recast directive would not bring additional benets as a directive protecting womens rights in relation to pregnancy and maternity was already in existence. Despite strong counter-arguments by the European Parliament and womens organizations, the position of the Commission held sway. In response to their combined protests, the Commission and Council issued a statement making an explicit commitment to improving the context for reconciling work and family life as a means of fostering equality between women and men in the Union. Although the recast directive turned out to be another signicant disappointment for women and equality campaigners, the important role played by the European Parliament during the decision-making process needs to be underlined.

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In short, although the reconstitution of the EUs gender order continued in the post-Amsterdam phase, the three gender directives adopted in this period have suered from serious shortcomings despite the more equality-friendly provisions contained in the Treaty. While developments subsequent to Amsterdam include a more proactive approach to gender equality, more legal powers to the EU to legislate in areas beyond employment, and an enhanced role for the Parliament in legislative decision-making, it seems that the EUs capacity to eect substantive change continues to be circumscribed. This leads us to conclude that Ostner and Lewis (1995) rst needles eye thesis continues to apply at the supranational level. In the following sections we test the second needles eye thesis, examining the potential of the EU to eect change in the gender order at national level. We examine evidence from the four waves of enlargement to suggest that the capacity of the EU gender directives to prompt domestic reforms in the area of gender equality is limited by the nature of the gender regime in place at member state level. Three Waves of Enlargement and Gender Equality If we look back at the history of European integration since the Treaty of Rome, it becomes clear that the incorporation of EU gender equality norms into national systems has varied widely from country to country, and that such cross-national variation has characterized the EU integration project from its very early days. This section traces the manner in which the European gender order has evolved, and its impact on national gender regimes. The cornerstone of the EU corpus of gender equality laws and policies resided initially in article 119 of the 1957 Treaty of Rome, which provided equal pay for equal work. Modestly constructed as a provision to enable the harmonization of social costs in the interests of equalizing economic competitiveness, article 119 was later to provide the anchor for the development of gender equality policies in the European Union. In 1960 the lack of action on article 119 became clear and a nonbinding Resolution on the enforcement and implementation of equal pay was formally adopted by member state governments. By the 1964 deadline for implementation, the Commission reported that application of Article 119 was incomplete in each country, with Belgium and the Netherlands particularly slow in adhering to the implementation process (Hoskyns, 1996, p. 63). During the 1970s, the implementation of the three gender directives (equal pay, equal treatment in the workplace and equal treatment in social security provision) seemed to vary with the political, cultural and legal environment in each country along with the lobbying eectiveness of the womens movement. Organized women in Germany, for instance, faced more obstacles in seeking to inuence the political agenda due to the multiple levels of decision-making they were required to negotiate. In comparison, women in Ireland had the capacity to directly inuence national government given the highly centralized nature of state power. In Germany, the transposition of the employment directives was given low priority as equality provisions in the national constitution were seen as providing sucient protection for women (Hoskyns, 1996, pp. 118119). Ireland, in contrast, aligned its national law on equal pay and treatment to the European directives as part of the countrys preparations for accession, though even in this instance the implementation of the

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equal pay directive was hotly contested at national level (Galligan, 1999, pp. 6889). In other instances, it required court decisions to eect change at the national level. Meehan (1993, p. 198) notes that Denmark and Britain, for instance, had to take cognizance of the principle of equal value in their national equal pay laws arising from ndings of the European Court of Justice. National implementation of the equality directive on social security also diverged. It had a relatively unproblematic transposition in Germany, while in the Netherlands and Ireland harmonization of national law with the requirements of this directive were particularly fraught. In both instances, the crux of the problem was the national application of the directive to married women in a fashion that discriminated against them compared with married and unmarried men and unmarried women. In both cases, the issue went to the European Court of Justice which ruled in favour of upholding the equality provisions. In the Dutch case (Case 71/85, [1987] 3 CMLR 767), the Court ruled that Dutch law was discriminatory in denying married women from claiming unemployment benet except in circumstances where the woman in question could prove that she was the breadwinner. In the Irish case (Case 286/85, [1987] 2 CMLR 607), the Court ruled that the 1985 social security reforms enacted by the Irish government maintained a discrimination against married women. It claried that the fundamental principle of the directive provided that married women were entitled to the same level of unemployment and pay-related social security benets as men and single women (Curtin, 1988, pp. 1722; Hoskyns, 1996, pp. 121122). In each instance, conservative cultural perceptions of married womens role and status in society underpinned the formulation of national legislation. Overall, in this rst phase of enlargement, characterized by national governments being required to incorporate European provisions on gender equality, the role of the European Court of Justice as enforcer of directives and the power of individuals and organizations to seek national compliance is evident. What is also clear is that transposing gender acquis brings national political cultures into conict with supranational eorts to impose particular gender equality norms, laws and practices. The Mediterranean enlargement with the admission of Greece (1981) and later Spain and Portugal (1986) to EEC membership presented particular challenges for national convergence to the EU gender order. Nonetheless, by 1992, a decade on from accession, Greece had succeeded in implementing 88% of EU directives, including gender laws, indicating a similar compliance rate to that of Germany and Portugal (Iankova & Katzenstein, 2003, p. 281). Nonetheless, the Greek pattern of slow implementation contrasts with that of Spain, where the Community acquis on gender equality was implemented methodically and without undue delay (Iankova & Katzenstein, 2003, p. 282; Valiente, 2003, p. 191). Austria and the northern European states admitted in 1995 did not face particular adoption and implementation challenges, as their legal and policy orders were already signicantly aligned with European provisions (Falkner et al., 2005, pp. 331332). Nonetheless, transposition and implementation of elements of the gender directives was relatively uneven across all 15 members on the eve of the EUs eastward expansion. A 2002 study investigating patterns of compliance with the gender directives in six member states (Italy, France, Germany, Spain, Sweden and the UK) found that Sweden, closely followed by Spain, had higher levels of transposition and fewer infringement proceedings initiated than other member

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states. Britain and France were ranked in the middle, while Italy and Germany lagged behind (Liebert, 2003). What is interesting about this study is that it provided evidence disproving earlier hypotheses regarding the factors explaining domestic compliance. Earlier research explained evidence of cross-national variation in domestic compliance with EU gender norms according to three main factors: the characteristics of the domestic gender regime; the level of litigation and legal enforcement; and the presence of a strong womens movement. In terms of the rst condition, the study did not nd a straightforward link between domestic gender orders and member state compliance performance. Sweden and Spain are cases of states with two very contrasting gender regimes yet showing similarly good compliance practices. In contrast, signicant variation in performance can be found between states with similar gender regimes, such as Spain and Germany. On the other hand, there are countries such as France, with a gender regime that is more similar to that of Sweden but where legislators have tended to resist EU gender norms (Liebert, 2003, p. 263). Secondly, the study did not nd evidence supporting the hypothesis that the level of legal enforcement will predict variations of compliance with EU gender norms. Given the important role of the European Court of Justice in the development of EU gender equality law, this thesis posits that national courts guided by ECJ instructions on how to interpret gender norms will put pressure on domestic legislatures and governments to comply with ECJ decisions (Liebert, 2003, p. 264). National courts, then, are seen as important domestic agents in the Europeanization of gender norms and practices. Yet the Liebert study found that this correlation did not hold in a range of cases, such as Germany and Spain. Germany illustrates a case where the level of litigation has been high yet compliance performance has been poor. Spain exemplies a case of low litigation activity yet good compliance levels. These ndings suggest that a high level of litigation is not sucient to resolve domestic obstacles and produce good compliance results. A third factor in the Europeanization of gender norms is the level of development of state feminism in conjunction with the presence of a strong womens movement (Stetson & Mazur, 1995; Keck & Sikkink, 1996; Woodward, 2004). This analysis suggests that advocacy coalitions of femocrats and feminists (sometimes in conjunction with female legislators) will put pressure on national governments to comply with EU gender norms and policies. Yet a study of the Europeanization of gender norms in Spain (with a record of high compliance) contends that there has been a lack of collaboration between state feminists and the womens movement and that the latter has been highly fragmented (Lombardo, 2003). Similar scenarios are to be found in France (with medium-level compliance) and Italy (poor compliance). In sum, what the Liebert study reveals is that the presence of the above factors (gender regime characteristics, litigation and enforcement levels, a strong womens movement) is neither necessary, let alone sucient, to explain domestic compliance with EU gender norms. In the light of these ndings, the study suggests that explanatory accounts of variation in the Europeanization of gender equality norms needed to be reviewed and that other factors (such as public support for the EU and the diusion of egalitarian values among mass publics) needs to be taken into account (Liebert, 2002, p. 249).

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These ndings concur with more recent research on compliance patterns which show the need to take into account more than one factor when explaining crossnational variation (Borzel & Cichowski, 2003). One of the most comprehensive comparative studies on compliance examined the implementation and application of six directives3 in 15 member states (Falkner et al., 2005). A major nding is that there is not a single overriding factor which determines the compliance performance of member states and could thus serve as a safe anchor for predicting success or failure of future implementation (Falkner et al., 2005, p. 317). This study reveals a complex interplay of multi-level governing between national and supranational institutions, and develops a typology of compliance that clusters countries into three groups. Finland, Sweden and Denmark are characterized as having high levels of transposition, well-organized enforcement systems, and fewer infringement proceedings initiated than other members. These countries are identied as belonging to a group where the observance of EU law is given high priority by national government the world of law observance. Germany, Austria, the Netherlands, the UK, Belgium and Spain comprise a second cluster of member states where enforcement standards are relatively satisfactory, though the national framing of the acquis and the content of the transposed law is subject to domestic contest the world of domestic politics. Finally, a third group of countries consists of France, Greece, Italy, Ireland, Luxembourg and Portugal, where the transposition and enforcement of the social directives is characterized by neglect and compliance obligations are often ignored the world of neglect (Falkner et al., 2005, pp. 321341). In the next section, it is instructive to see how far the new Eastern members have adapted to this multi-level and supranational form of governance in gender equality, and discuss what lessons can be learned from this fourth round of enlargement. Expanding Membership to Central and Eastern Europe The framework for an historic eastward enlargement of the EU was laid during the European Council meeting in Copenhagen (1993), at which the political and economic criteria for future enlargements were elaborated.4 The Copenhagen criteria reected the desire of the EU to foster democratic government, human rights and a liberalization of markets in Eastern Europe in the aftermath of the Cold War. Given their political histories, the ten Central East European (CEE) countries seeking membership faced greater legal, administrative and political challenges in incorporating and transposing the acquis than did the Mediterranean enlargement countries (Iankova & Katzenstein, 2003, p. 284). Thus, reecting on the Eastern accession process, this enlargement was more demanding on the candidate countries than previous enlargement rounds. Clearly, the move from state socialism to democratic political order imposed considerable domestic strains on individual states. Although the Commission provided substantial nancial, policy and institutional supports to facilitate integration of CEE legal and institutional frameworks into the European order, the new democracies were given a short time-period for acquis transposition, administrative reform and general compliance with the Copenhagen criteria. Progress on converging national law and practice with EU requirements was closely monitored by the Commission through extensive regular reports on each

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candidate country dating from the pre-accession stage to the point of signing the accession agreements. These reports reveal some of the singular challenges faced by the candidate countries of Eastern Europe in transposing the acquis, including problems in aligning EU law with labour codes originating in socialist law. While each country followed its own timetable in transposition and in creating enforcement structures, the Commission nal monitoring evaluations for each country are generally positive. Only Romania, Bulgaria and Estonia were identied as still having signicant progress to make on accession, though in the cases of Romania and Bulgaria this nding needs to be considered in the context of their later entry to EU membership in 2007. A second group of countries, comprising Latvia, Slovakia and Poland, can be seen as making good, if incomplete, progress in transposing, creating and implementing structures for delivery of EU gender equality measures. In each case, the capacity of enforcement structures and mechanisms was seen as being less than optimum (European Commission, 2003: Poland, pp. 4041; Latvia, p. 34; Slovakia, p. 32). Finally, four countries the Czech Republic, Hungary, Lithuania and Slovenia were identied in Commission monitoring reports as making considerable eorts to transpose and create eective enforcement structures for implementing the gender acquis. However, even these leaders shared some deciencies with the other applicant states. In particular, the equalization of pensions and pensionable age for male and female civil servants, removal of protective gender discrimination on night work, renement of the burden of proof conditions in employment, adjustments to the parental leave directive and strengthening enforcement capacities were common areas identied for national attention across all CEE countries. In an early consideration of the 2004 enlargement, Leiber (2005, p. 352) provocatively asks if there is a dierent eastern world of compliance. One method of assessing how far the new member states have become integrated into the European gender project is to compare rates of transposition of a single directive across all 27 member states. Directive 2004/113/EC, on equal treatment between men and women in access to and supply of goods and services is a good example. As discussed earlier in this article, this is a relatively new directive, passed in 2004 at the time of enlargement, and with an implementation deadline of December 2007. The directive, based on Article 13 of the Amsterdam Treaty, is the rst eort by the EU to outlaw sex discrimination in non-employment settings. It applies to goods and services oered to the public such as housing, banking and insurance, and transport facilities. This directive is the only one that applies to all member states since the 2004 enlargement, so the new member countries do not have to play legislative catch-up with the older EU member states on this issue. An independent assessment of gender equality law in 2007 noted that transposition was ongoing in most member states, but that there were concerns that ten states could default in their obligations. The Commission initiated the rst stage of formal enforcement warning, letters of formal notice for non-transposition, to 12 states in early 2008: the Czech Republic, Estonia, Ireland, Greece, France, Cyprus, Latvia, Malta, Poland, Portugal, Romania and the UK. Thus, ve countries issued with a formal letter of notice were new entrants from Eastern Europe. The formal notice from the Commission prompted three states to eect transposition Portugal, France and Romania suggesting that the formal notice acted as a stimulus to the alignment process.

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In June 2008 three countries the Czech Republic, Greece and Poland received a second warning in the form of a reasoned opinion. In the remaining six cases, the Commission had not nalized its response by June 2008 (European Commission, 2008). This is not the only social policy directive that member states are tardy in implementing. The equal treatment directive, amended in 2002 (2002/73/EC), was due to take eect in all member states by October 2005. This directive introduces some substantial and procedural amendments to the 1976 directive. It claries the denitions of direct and indirect discrimination, and of harassment and sexual harassment. In addition, it revisits the concepts linked to exceptions to the principle of equal treatment such as maternity/pregnancy rights and positive action. Finally, it introduces more robust instruments for judicial protection (Masselot, 2004). At the end of the transposition deadline, nine member states had not notied measures to transpose this directive Denmark, Finland, Austria, Belgium, Germany, Greece, Spain, Luxembourg and the Netherlands. Interestingly, none of the oending states were from Eastern Europe, suggesting that the conditionality requirement on transposition was operating eectively for the soon-to-be member states. In 2007, the Commission began a careful monitoring of the transposition of this directive in 23 member states.5 Due to the complexity and novelty of the provisions in the directive, the Commission detected a signicant number of problems in the transposition process. The Commission sent letters of formal notice to all members, with the exception of Spain, to which all had replied by 2008. An assessment of implementation highlighted a variety of problems in meeting the deadline. Some member states suered from important domestic legislative gaps: this applied in particular to Belgium, Denmark, Finland, Hungary, Italy, Lithuania, Luxembourg and Slovakia. Other member states had drafted the implementation legislation but had not adopted it by the deadline: this was the case in Cyprus, France, Germany, Greece, the Netherlands, Spain and Sweden. One particularly problematic country with respect to this directive is the Czech Republic, in part due to the fragmentary character of domestic equal treatment legislation (Havelkova, 2006). The introduction of an Anti-Discrimination Bill was intended to remedy these problems, but it was subject to presidential veto in 2008 on the basis that it did not add anything new to existing legislation. This has created a signicant legal vacuum with respect to equal treatment legislation in the Czech Republic since 2004 and is of ongoing concern to the European Commission. Yet, despite chronic implementation problems in the Czech Republic stemming from crises in domestic politics, an analysis of the transposition of this directive does not indicate a marked dierence between old and new member states. One clear nding, however, is that the infringement procedures launched by the Commission act to stimulate the domestic transposition process so that many countries attend promptly to the relevant issues. Clearly much additional research is needed before we can establish fully the pattern of compliance of the member states from former Eastern Europe. This preliminary review, though, does not lend support to the eastern world of compliance thesis, at least in relation to EU gender equality. The fact remains though, that the challenges of enlargement, coupled with the demands of shaping democratic political structures and institutions, have meant that the enlargement process in Eastern Europe has been more complex than that of

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earlier rounds. Along with the continual evolution of the acquis, presenting accession countries with the pressure of catch-up with the older member states, is the fact that these laws and policies required grafting onto an economic and social corpus of law and practices inherited from the socialist past. Nonetheless, there are a number of shared features in relation to the adoption of EU gender equality norms in the new member states which have been extensively reported in the literature. The rst is that, although the regimes of Central and Eastern Europe recognized gender equality at a rhetorical level and implemented laws to enable women to balance the demands of the full-time workforce and their involvement with primary responsibility for family duties, equality was not treated as an important substantive issue. This gender-blindness has found expression, at best, in a negative view on gender roles in society. When asked to respond to a standard question measuring support for gender equality, opinion in Central and Eastern Europe was overwhelmingly in favour of a traditional role for women: 73% on average across the ten new member states believed that what women really wanted was a home and family, as compared with half that rate in Western Europe (World Values Survey, quoted in Galligan et al., 2007, pp. 6162). The preference for male dominance of the public sphere was also pronounced, with 45% of the public in Central and Eastern Europe believing that men make better political leaders than women, as compared with just 18% of West Europeans agreeing with this statement (Eurobarometer, quoted in Galligan et al., 2007, pp. 6567). In this context, it is plausible to assume that the introduction of gender directives have received little support among the public (Matyja, 2001). Thus, there appears to be a public reaction against gender equality as a principle, which is rooted in a negative response to the enforced proto-equality of state socialism. In this context, the space for a feminist challenge to the status quo is limited. Secondly, the fabric of the womens sector in civil society is generally fragmented and their primary role has been to provide support and protection services dismantled by the state after communism (such as childcare), or addressing longneglected womens health and human rights needs (domestic violence, tracked women). At the moment of accession, the womens sector was weak in terms of capacity, under-resourced and undernanced, and focused on urgent service provision tasks (Galligan & Clavero, 2007, pp. 233234). Since accession, some limited progress in bringing womens non-governmental organization (NGOs) into decision-making has been achieved. In Lithuania, for example, provisions were made for formal NGO participation in the Commission on Equal Opportunities for Women and Men. While this was viewed as a step in the right direction, the initiative drew critical comment for not identifying the relevant NGOs and for not specifying the criteria for selection. A more positive integration of womens NGO representatives in legislative discussions is to be found in Slovakia. During 2007, one of the most prominent womens organizations, the Union of Mother Centres, made submissions to the governments draft revisions of the Labour Code and the Anti-Discrimination Act. The organization was of the view that the proposed legislation did not go far enough in creating conditions for the eective balancing of work and family life. The Union argued for a more comprehensive treatment of these issues to reduce the potential for discrimination against women because of their caring duties. Although the government was unwilling to accept this argument, this

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is one instance of a womens civil society organization actively involved in a process of social dialogue. Third, the participation of women as representatives of legitimate civil society perspectives in social dialogue and decision-making is limited at best, with consultations treated by government as a matter of formal compliance with EU , 2005, p. 1107). expectations rather than given substantive policy inuence (Has kova Once again, the historical legacy of the socialist past, where civil society was virtually non-existent, has required the fabric of social dialogue to be woven anew. The practice of excluding, or limiting, womens civil society representatives in policymaking appears to contradict the EUs eorts to foster a greater role for social partners in the legislative process, at national and Community level (Masselot, 2007, pp. 165166). However, in this regard, the EUs exhortations to engage citizens in policy- and law-making are voluntary rather than binding on member states. The recent EU members are not alone in giving restricted access to decision-making to civil society. For example, in relation to the equal treatment and goods and services gender directives, few EU countries have accorded civil society a realistic opportunity to engage in the national transposition process, and the EUs own guidelines suggest that these measures are voluntary rather than obligatory in nature. Studies of the Eastern enlargement process highlight the challenges faced by the new members in developing sucient administrative capacity to implement, monitor and enforce the EU-constructed gender order. This involved resourcing and training administrators and judicial systems to ensure that EU laws are applied. Indeed, the Commission monitoring reports on each of the candidate countries prior to accession repeatedly referred to the need to enhance the capacity of national administrative systems. This general systemic weakness was also evident in terms of gender mainstreaming. With the exceptions of Estonia and Slovenia, institutional mechanisms for the implementation and enforcement of the social acquis were placed at the periphery of government, staed by civil servants with limited expertise in gender issues. However, Daly (2005, pp. 433450) notes a similar gender mainstreaming pattern in the more established EU member states. This suggests that the hollow infrastructure, which looks impressive but lacks substance, reects the ambiguous commitment of many member states, old and new, to gender equality. Lieberts (2003, p. 263) observation that (older) member states wield a measure of autonomy in giving expression to EC gender requirements is readily applicable to the former East European members as well. Conclusions Gender equality is one site of contest in the development of the European gender order. This contestation takes place between the various actors and institutions at the supranational level in the rst instance and lters down to contestation within the domestic politics of the new member states and between the members and the European Commission, adjudicated by the European Court of Justice. All four enlargements were characterized by a diversity of interactions within member states and in a multi-layered context on the subject of gender equality. It is evident then, in evaluating Ostner and Lewis (1995) thesis of the two needles eyes, that the reconstitution of the gender order at supranational level has led to

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important developments favouring opportunities for more extensive initiatives on the part of the EU. One of the major constraining points they identify is that gender equality is informed by a narrow understanding, that of equal treatment in the workplace. While this was indeed the foundation of gender equality directives until the Amsterdam Treaty, subsequent understandings of gender equality have been more expansive, extending beyond the workplace and enabling the adoption of positive action strategies that in an earlier time would have been considered illegal. In addition, the decision-making context has changed. The co-decision procedure has introduced an important mechanism for countering the veto-power of the Council. In shifting towards a relatively more democratic, or at least a more deliberative, form of decision-making, the tendency of the Council to dilute, block or veto gender directives is more circumscribed than before. It will take some time, though, before it will be possible to assess the extent to which the Parliament exercises its newly acquired powers in relation to the Council. These important changes at supranational level do not necessarily aect the second needles eye, that of domestic i.e. national gender orders. Indeed, Ostner and Lewis (1995) insight that national implementation depends on the domestic gender regime has stood the test of time, and is well illustrated in the post-Amsterdam Treaty cases discussed in this article. However, there is room for modication of some of the detail of their hypothesis in the light of the Unions Eastern enlargement. Although the gender order in the new member states can be described as distinctly conservative in orientation if public opinion is to be taken as a measure of support for gender equality the dominant practice in these states is for high female workforce participation. This to some extent undercuts Ostner and Lewis (1995) suggestion that the member states most likely to default on transposition and implementation of the EU gender order are ones that rely heavily on womens unpaid caring work in the family. The evidence from the early investigations presented in this article does not necessarily support this contention. After all, there have been few distinctions between old and new member states in terms of policy implementation. Indeed, the wide diversity of responses to EU gender equality directives range across old and new member states. All continue to be challenged to eliminate discrimination in gender relations. Convergence towards European gender equality norms, while slow and sometimes painstaking, is the pattern emerging from this investigation. The key to future progress is at the supranational level, and the extent to which the Parliament and Council, in co-decision, can develop gender equality in both employment and non-employment contexts.

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Notes
1

Yet the term Europeanization has been used to denote dierent phenomena and processes (Olsen, 2001). 2 The co-decision procedure also applies to future gender equality proposals based on article 137 (ex article 118) on the promotion of employment, improved living and working conditions (which provided the legal basis of the pregnant workers directive). 3 The six labour law directives are employment contracts (91/55/EEC), pregnant workers (92/85/EEC), working time (93/104/EC), young workers (94/33/EC0), parental leave (96/34/EC0) and part-time work (97/81/EC).

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Countries aspiring to EU membership were required to achieve stability of institutions guaranteeing democracy, the rule of law, human rights and respect for and protection of minorities; a functioning market economy; as well as the capacity to cope with competitive pressure and market forces within the Union. Membership presupposes the candidates ability to take on the obligations of membership, including adherence to the aims of political, economic and monetary union (European Council, 1993, p. 12). These conditions are often referred to as the Copenhagen criteria. The monitoring excluded Belgium and Luxembourg, against which infringement procedures for noncommunication had been opened by the Commission and Bulgaria and Romania, which had not become full EU members by the implementation deadline.

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