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BOOK REVIEW

FROM ILO STANDARDS TO EU LAW: THE CASE OF

EQUALITY BETWEEN MEN AND WOMEN AT WORK
By Eve C. Landau & Yves Beigbeder. Leiden: Martinus Nijhoff Publishers,
2008. Pp. xvii, 327.
Reviewed by Natan Lerner
International law and human rights literature contains a large body of work
devoted to the subject of discrimination. Because life in the post-World War II
era assumed markedly more international characteristics, the United Nations
emphasized discrimination based on race, religion, and gender on a global
scale. However, even then it was absolutely clear that the destructive effects of
inequality differed substantially from one geographic area to another and that
the nature of each political system played a decisive role in the U.N.s attitude
towards the issue of prohibited, discrimination-based distinctions between
human beings. Of course, the issue of discrimination in specific regions has
also attracted the interest of scholars, particularly in Europe, where legislation
and the jurisprudence of the European Court of Justice and the European Court
of Human Rights have dealt with the subject and have produced an important
body of literature.1
The book under review enriches human rights writings, especially writings
that focus on the regional aspect of human rights by stressing the interaction
between a global world organization and a regional institution. Specifically,
the book focuses on the International Labor Organization (ILO) and the
European Union (EU), perhaps the most important regional institution of our
Professor of International Law at the Interdisciplinary Center Herzliya. Prof. Lerner is the author of
several books, the most recent of which is Religion, Secular Beliefs and Human Rights.
1 See, e.g., Council Directive 2000/78, arts. 14, 2000 O.J. (L 303) 16 (EC) (establishing a regime for
equal treatment of men and women in employment and occupation); Case C-4/02, Schnheit v. Frankfurt,
2003 E.C.R. I-12575 (holding that legislation which reduced the pensions of government employees who had
worked part-time for a portion of their working lives, and thus affected more women than men, was not
permissible without some sort of objective basis); Mazurek v. France, 2000-II Eur. Ct. H.R. 25, 41 (holding
that the refusal to grant a portion of parents estate to an adulterine childinstead, granting the full estate to
the adulterine childs sibling, who was born in wedlockwas impermissibly discriminatory).

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time.2 The books authors, Eve C. Landau, a professor of international law,

and Yves Beigbeder, a specialist on the international civil service, point out
that in the European Communitylater the European Unionequality and
equal opportunity came in through the window and not through the door,3 and
that the approach of the 1957 Treaty of Rome was not based on protecting
fundamental rights or pursuing justice, but on economic considerations.4 The
purpose of their book is to examine the profound change that has transformed
the values and focus of EU law on gender equality and to reveal the impact of
ILO standards on EU legislation and case law.5 The piecemeal promotion of
equality between men and women at work6 culminated when the EU
proclaimed that equality is a fundamental right and a fundamental principle of
Community law, now enshrined in the EU Charter of Fundamental Rights.7
To achieve that purposethat is, to examine the change that has affected
EU law on gender equality and to reveal the impact of ILO standards on EU
legislation and case law8the book reviews the roles of the United Nations,
the ILO, European organizations such as the Council of Europe and the
European Union, and the interface between the ILO and the EU.9 The authors
then discuss selected issues, such as the principles of equal pay and equal
treatment and protective measures for womenincluding the protection of
pregnancy and the protection of maternity and parental leave.10 Consideration
is given to workers with family responsibilities and child care, part-time work
and indirect discrimination, the burden of proof and indirect discrimination, the
dignity of the worker, and sexual harassment.11 The authors devote a full
chapter to the issue of affirmative action.12 The last part of the book deals with
new challenges, achievements, and trends.13 Annexes include excerpts from
ILO Conventions and excerpts of EU laws.14 The table of contents starts with

EVE C. LANDAU & YVES BEIGBEDER, FROM ILO STANDARDS

BETWEEN MEN AND WOMEN AT WORK (2008).
3 Id. at xv.
4 Id.
5 Id.
6 Id.
7 Id.
8 Id.
9 Id. at 362.
10 Id. at 65173.
11 Id. at 175224.
12 Id. at 22541.
13 Id. at 24558.
14 Id. at 261316.

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a foreword by Professor Lucius Caflisch15 and closes with an alphabetical list

of cited cases of the European Court of Justice, a select bibliography, and an
index.16
It is not a theoretical book but still has a considerable academic interest.
Subjects like the meaning and reach of the prohibition of discrimination;
gender equality and its limitations; the regional framework and its effect upon
national sovereignty; and the unexhausted issue of affirmative action are all
problems with fascinating legal-theory implications. As indicated in the
foreword by Professor Caflisch,17 a former judge of the European Court of
Human Rights, Landau and Beigbeder have written their work in a simple
language, achieving a work free of any ideological biasa quality of obvious
significance when dealing with subjects such as equality, discrimination, and
gender.
Chapter 1, on the United Nations, is informative, though perhaps too
succinct.18 The issue of gender equality and prohibition of sex-based
discrimination did not produce major political or ideological confrontations as
compared to the U.N. work on race or religion, but it may have been useful to
broaden the discussion on the U.N. approach to gender and its interaction with
problems of racial and religious discrimination. Chapter 2 surveys the major
ILO Conventions relevant to the protection of women and to the equality of
women and men at work.19 The chapter concludes with a pessimistic
evaluation: There is a gap between policy and practice, and women are still
vulnerable to various forms of labour market instability.20
The following two chapters deal with the specific work of the Council of
Europe and the EU, two institutions that have judicial bodies.21 The European
Court of Human Rights was established by the Council, the guardian of
democracy, human rights and the rule of law22 in the words of the authors, in
order to implement the provisions of the European Convention on Human
Rights.23
The Courts jurisdiction over civil and political issues is
15 Lucius Caflisch, Foreword to EVE C. LANDAU & YVES BEIGBEDER, FROM ILO STANDARDS
LAW, at xiii (2008).
16 LANDAU & BEIGBEDER, supra note 2, at 31740.
17 Caflisch, supra note 15, at xiii.
18 LANDAU & BEIGBEDER, supra note 2, at 310.
19 Id. at 11.
20 Id. at 20.
21 Id. at 2552.
22 Id. at 25.
23 Id. at 28.

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comprehensive, but, in principle, it does not cover social matters.24 The

European Court of Justice, an organ of the European Union, has dealt with
issues pertaining to the law governing equality and has contributed to its
development and enrichment.25 Some cases are cited in this part of the book.
The Luxembourg Court sees itself bound to protect human rights as part of
the general principles of law,26 and its decisions have become part of the
unwritten Community law, inspired by international conventions together with
the constitutional systems of the member states.
Chapter 5 is devoted to the interface between the ILO and the EU.27 Both
institutions aim to coin rules for fair conditions of work, social justice and
equality,28 but the encounters between the two organizations were not
formalized, except for several specific instances, most of them involving
decisions of the Luxembourg Court. It should be kept in mind that the EU is
not a member of the ILO, but enjoys observer status.29 An important opinion
was rendered in 1993 clarifying the issue of the compatibility of ILO
Convention No. 170, adopted in 1990, with EU law.30 This opinion seems to
have contributed to the Communitys expansion of the scope of work in the
field of social law, especially in the domain of equality at work.31 The
working relationship between the ILO and the EU has become closer, and
cooperation between themparticularly in the field of working conditions,
equal opportunities, and equal treatmenthas expanded.
Part III of the book deals with selected issues, such as the legal nature and
implementation of equal pay for equal work; equal treatment; protective
measures for women in an era when social evolution and scientific and
technical development outpace laws; the protection of pregnancy and maternity
24 See, e.g., id. at 25; Convention for the Protection of Human Rights and Fundamental Freedoms pmbl.,
I, arts. 2, 9, Nov. 4, 1950, 213 U.N.T.S. 221 [hereinafter ECHR]. The declaration aims at securing the
universal . . . recognition . . . of the Rights declared in the Convention, which include the right to life and
freedom of thought and religion, but not the right to same-sex marriage or abortion, but fails to set aside an
independent provision of non-discrimination. ECHR, supra, pmbl.
25 See, e.g., Case C-274/96, Proceedings against Horst Otto Bickel and Ulrich Franz, 1998 E.C.R. I-7637,
I-7649 (holding that an Italian law which afforded nationals from other EU countries residing in Italy the right
to have criminal proceedings against them conducted in their native languages but did not afford the same right
to other EU nationals merely visiting Italy was impermissibly discriminatory).
26 LANDAU & BEIGBEDER, supra note 2, at 52.
27 Id. at 5362.
28 Id. at 54.
29 FRANK HOFFMEISTER, JAN WOUTERS & TOM RUYS, THE UN AND THE EU: AN EVER STRONGER
PARTNERSHIP 98 (2006).
30 Opinion 2/91, 1993 E.C.R. I-1061.
31 LANDAU & BEIGBEDER, supra note 2, at 60.

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and parental leave; workers with family responsibilities and child care; and
part-time work, an area affected by indirect discrimination requiring a shifting
of the burden of proof and frequently demanding adjudication.32 The last two
chapters of this part are devoted to sexual harassments impact upon the
dignity of the worker33 and the matter of positive or affirmative action.34
Affirmative action is prohibited by European Community law when it results
in reverse discrimination; it is permitted in academic posts. Europe produced
abundant case law on these issues.35
Part IV, on New Challenges and the Decent Work Agenda,36 has only
one short chapter under the heading of Challenges, Achievements and
Trends.37 The authors take the view that [b]oth the ILO and the EU have
defined rules of fair conditions of work, social justice and equality, the ILO
being the pioneer and standard-setter in this field.38 ILO standards have a
global scope, while the EU legislates for its member states.39 While the ILO
had to adopt compromises acceptable to all constituent groups and allow
gradual progress encouraging the widest possible number of ratifications, the
EU has been able to advance faster and deeper thanks to common values and
practices in the labor area, despite differences and the fact that Landau and
Beigbeder see equal treatment of men and women as a rather recent
development.40 The EU Directives are binding for all member states and are
enforceable through the control of the European Commission and the European
Court of Justice.41 The EU, following the model of the tripartite composition
of the ILO, has established compulsory consultation with social partners on the
discussion and formulation of social directives involving governments and
employers and workers representatives.42 The Charter of Fundamental
Rights of the European Union, which proclaims basic principles concerning
labor issues and equal treatment of men and women, has been in force since
2007.43 This is of great importance in areas such as discrimination; gender
32
33
34
35
36
37
38
39
40
41
42
43

Id. at 63241.
Id. at 21524.
Id. at 22541.
Id. at 22940.
Id. at 24358.
Id. at 24558.
Id. at 245.
Id.
Id.
Id.
Id. at 246.
Charter of Fundamental Rights of the European Union, Dec. 7, 2000, O.J. (C 364) 1.

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equality; fair and just working conditions; effective remedies; and when
applicable, exceptional measures, namely affirmative action.44
The book highlights achievements of EU legislation connected with ILO
standards in several areas. Still, the road to equality between women and men
in the EU has been slow, although progress has been made.45 In 2007, the
ILO adopted gender equality as a strategic goal and a mainstream objective of
its Decent Work Country Programmes.46 The authors note that [t]he
elimination of discrimination is at the heart of decent work for all women and
men.47 In the same year, an EU report enunciated similar principles and
policies, described in the book as more precise as they address a quasihomogeneous group of countries, and are enforceable through the binding
directives and the Courts decisions.48
As to future trends, the book stresses that the EU is presently affording
protection against discrimination that goes beyond the protection granted by
ILO Convention No. 111.49 This means recognizing the existence of
underprivileged groups that are less equal than others at the workplace because
of age, invalidity, or sexual orientation.50 However, this recognition should
not dilute the closing of the gender gap.51 Equality for women thus acquires
a new challenge,52 and the authors believe:
There should be equality of opportunity and treatment for all
women and men, security in the workplace, social protection
for the worker and his/her family, prospects for personal
development and social integration, as well as freedom for
people to express their concerns, organise and participate in
the decisions that affect their lives. It includes also the core
labour standards such as the prohibition of child labour and of
forced labor, prohibition of discrimination in employment and
freedom of association and collective bargaining.53

44
45
46
47
48
49
50
51
52
53

LANDAU & BEIGBEDER, supra note 2, at 246.

Id.
Id. at 252.
Id.
Id. at 253.
Id. at 255.
Id.
Id.
Id.
Id. at 256.

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The book under review has a double purpose: a) to recount the pioneering
role of the ILO and what the authors describe as the impressive progress
achieved by the EU in the area of equality of men and women at work,
including the influence of the ILO treaties on European law and the case law of
the European Court; and b) to put in evidence the need for continued
international initiatives, at both the global and regional levels, in standardsetting and monitoring. Both goals have been achieved by the book.
From ILO Standards to EU Law is not an incursion in legal theory and
does not pretend to exhaust its subject on the world scene. It is a very useful
study on a well-defined and limited field: the impact of ILO work on EU law
and jurisprudence. It is well-documented and updated, and clearly written.
Beyond this, it deserves to be read with interest by scholars dealing with
regional organizations that may not have reached the degree of influence on
their member states that the EU has already today. An effective regional body
has an intermediary role concerning the transfer of principles and norms
elaborated by world bodies specialized in a given area to individual states. The
EU still has many problems to deal with, including the unfinished business of
the adoption of a constitution. The American and the African regional
organizations are far from being able to fulfill such a task because of reasons
that cannot be discussed here. The European example of incorporating ILO
norms, as well as its structural, constitutional tripartite model, into the legal
system of the region should most certainly be carefully considered in other
regions as a model to be followed, or at least well known. From this
viewpoint, the reviewed book makes a valuable contribution to scholarship on
international social and economic human rights.