A Hierarchy of Grounds: An Unacceptable Status Quo

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A HIERARCHY OF

GROUNDS: AN

UNACCEPTABLE STATUS

QUO

JULY 24, 2020

ANJA SIOBHAN DOOLAN

11209917

LLM European Union Law Supervisor: dhr. Dr. T.A.J.A. Vandamme

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- 1 - Abstract

Unlike the prohibition of discrimination on the ground of sex, the principle of

non-discrimination on the grounds of racial or ethnic origin, religion or belief, disability, age or sexual orientation was not included in the primary law of the EU until the 1999 Treaty of Amsterdam, which saw the inclusion of a new legal basis – today’s Article 19 TFEU. Article 19 TFEU led to the swift adoption of two directives in 2000: the Racial Equality Directive and the Framework Directive. Although a step in the right direction, these EU measures have created what has been termed a hierarchy of discrimination grounds by authors like Erica Howard. The primary reason for the hierarchy is threefold: firstly, the Racial Equality Directive has a wider material scope; secondly, it limits possible justifications of

discrimination; thirdly, it includes enforcement provisions that make it easier for a victim to make an allegation of race discrimination. Thus, persons falling within the scope of the Framework Directive have lesser protection of their rights than those falling within the scope of the Racial Equality Directive. In an attempt to rectify the unacceptable hierarchy, in 2008 the Commission submitted a proposal for a new directive which would align the sister directives of 2000 and put an end to the hierarchy. Nonetheless, over a decade later the proposed Directive has remained a mere proposal due to the unreachable requirement of unanimity in the Council. The present study focuses specifically on the ground of sexual orientation and its low ranking within the hierarchy of grounds. In an attempt to rectify that hierarchy, this research seeks to determine whether the Article 265 TFEU action for failure to act presents a viable judicial route to coerce the EU legislator to finally adopt the 2008 proposed Directive in order to rectify the hierarchy of discrimination grounds.

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Introduction

“The Union is founded on the values of respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights, including the rights belonging to minorities. These values are common to the Member States in a society in which pluralism, non-discrimination, tolerance, justice, solidarity and equality between women and men prevail.”1

Some may recall the story of Michael Black and John Morgan, a same-sex couple refused a hotel room in Cookham, United Kingdom, in 2010.2 Although national law allowed the couple to win a case in court, the European Union – bearer of human dignity, democracy, equality and respect for human rights – would not have protected its very own citizens from such a clear expression of discrimination on the ground of sexual orientation.

While discrimination on the ground of sex has always been prohibited by the Treaties, it was not until the late 1990s that the Treaty of Amsterdam finally enabled the Council to take action to combat discrimination on extended grounds including racial or ethnic origin, religion or belief, disability, age or sexual orientation. The newly introduced Article 19(1) TFEU (then Article 13 EC) led to the adoption of two sister directives in the year 2000: Council Directive 2000/78/EC establishing a general framework for equal treatment in employment and occupation (‘the Framework Directive’), and Council Directive 2000/43/EC implementing the principle of equal treatment between persons irrespective of racial or ethnic origin (‘the Racial Equality Directive’). Although a step in the right direction, some academics, including Erica Howard, claim that these directives have caused what is termed ‘a hierarchy of discrimination grounds’.3 This supposed hierarchy refers to the situation by which certain individuals are more protected by the law than others. The primary reason for this is threefold: firstly, the Racial Equality Directive has a wider material scope; secondly, it limits possible justifications of discrimination; thirdly, it includes enforcement provisions that make it easier for a victim to make an allegation of race discrimination.4 Thus, individuals falling within the scope of the

1_{Consolidated Version of the Treaty on European Union [2012] OJ C326 Article 2 (TEU).}

2_{Helen Carter, ‘Gay couple turned away from B&B by Christian owners’ (The Guardian, 21 March 2010)}

<https://www.theguardian.com/world/2010/mar/21/gay-couple-refused-hotel-room> accessed 15 June 2020.

3_{Erica Howard “The Case for a Considered Hierarchy of Discrimination Grounds in EU Law” Maastricht}

Journal of European and Comparative Law (2006) 13(4) 445.

4_{Erica Howard “EU anti-discrimination law : Has the CJEU stopped moving forward?” International Journal of}

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Racial Equality Directive have more protection of their rights than individuals falling within the scope of the Framework Directive.

Evidently, this is dangerous because it requires a clear line to be drawn between the grounds of discrimination which presents serious problems for cases of so-called multiple discrimination. A black lesbian woman, for example, who has been discriminated against by being refused a hotel room with her same sex-partner, would be forced to ignore the intersection of applicable discrimination grounds, as the scope of the Framework Directive does not allow her to claim discrimination on the ground of sexual orientation in that instance. However, by adopting the Framework Directive by unanimity in the Council and consent of the European Parliament, the Member States have collectively asserted that the ground of sexual orientation demands protection at the EU level. Be that as it may, by limiting that Directive’s scope, the EU legislator accredits a lower value of human dignity of its own citizens based on groups they identify with, which is clearly in contravention to the general values which the EU frequently and triumphantly proclaims within and outside of its territory.

In an attempt to rectify the hierarchy, the European Commission submitted a proposal based on Article 19 TFEU for a Council Directive in 2008 on implementing the principle of equal treatment between persons irrespective of religion or belief, disability, age or sexual orientation (‘the proposed Directive’).5_{Despite calls by various NGOs and individual supporters on the}

ten year anniversary, the Directive has remained a mere proposal.6_{Until the proposed Directive}

is adopted, persons belonging to the discrimination grounds of religion or belief, disability, age and sexual orientation will continue to experience discrimination on some level, without the EU offering protection equal to persons covered by the grounds of sex and/or racial or ethnic origin. Therefore, this leads to the research question examined by this thesis, which adds to the current literature by combining the ongoing discussion of a potential hierarchy of EU discrimination grounds with the less frequently considered EU legal remedy found in Article 265 TFEU: Can the EU legislator be forced to adopt legislation on non-discrimination on the

5_{Proposal for a Council Directive on implementing the principle of equal treatment between persons}

irrespective of religion or belief, disability, age or sexual orientation {SEC(2008) 2180} {SEC(2008) 2181} /* COM/2008/0426 final - CNS 2008/0140 */.

6_{‘Joint NGO Statement on the 10}th_{Anniversary of the Horizontal Directive: Ten years and nothing to show for}

it’ <https://www.ilga-europe.org/sites/default/files/final_horizontal_directive_statement_10th_anniversary.pdf> accessed 15 June 2020; Brigit Van Hout and Tena Simonovic Einwalter, ‘Time to adopt the Equal Treatment Directive’ (Euractiv, 25 June 2018) <https://www.euractiv.com/section/justice-home-affairs/opinion/time-to-adopt-the-equal-treatment-directive/> accessed 10 June 2020.

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ground of sexual orientation in order to combat the hierarchy of discrimination grounds by the Article 265 action for failure to act?

Methodology and outline

This thesis focuses briefly on the development of EU non-discrimination law from its inception in the form of equality of economic opportunity to today’s system of equal treatment provided for in the Treaties, the Charter, and secondary legislation. In particular, the sister directives of 2000 will be scrutinized for their similarities and differences, in order to highlight the likely presence of a hierarchy of grounds with sex and racial or ethnic origin at the top and sexual orientation at the bottom. For the purpose of this thesis, discrimination on the ground of sexual orientation will be limited to lesbian, gay and bisexual (‘LGB’) individuals and the protection of same-sex couples. Although the European Convention on Human Rights and the European Court of Human Rights in Strasbourg have made important strides in the development of non-discrimination law, which has presumably influenced the EU, the progress made within the Council of Europe remains beyond the considerations of this study. Furthermore, it is important to note that both 2000 directives lay down minimum requirements, meaning that Member States are free to adopt national legislation that goes further. Therefore, this study examines the hierarchy of discrimination grounds created solely at the level of the EU.

The first chapter will touch upon the overall history of development of EU

non-discrimination law, focusing on non-discrimination on the ground of sexual orientation in order to display the strides made in improving the protection for LGB individuals and same-sex couples, particularly with the adoption of the Framework Directive in 2000. Moreover, a selection of key concepts of EU non-discrimination law are brought to the foreground, like indirect and direct discrimination, to provide an understanding of how discrimination is interpreted within EU law.

The second chapter juxtaposes the sister directives of 2000, providing an insight into the current hierarchy of discrimination grounds which results in LGB persons and same-sex couples being exposed to discrimination without ample protection from the EU, despite the collective recognition of sexual orientation as a ground requiring active protection in the field of employment, which has made non-discrimination on the ground of sexual orientation a

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matter of shared responsibility, as Mark Bell puts it.7_{A study of the case law of the Court of}

Justice of the EU (‘the Court’) exposes the remaining difficulties experienced by same-sex couples. It will become evident that the Court has expanded the protection of the recognition of same-sex couples, particularly where this improves the smooth functioning of the internal market. However, it has not gone far enough and therewith this chapter highlights the untenable current situation which is in urgent need of being redressed.

Finally, the third chapter examines the available EU legal remedies, presenting the Article 265 TFEU action for failure to act as the primary option for coercing the EU legislature to act on the unacceptable hierarchy of discrimination grounds. Its prelitigation requirements, including the obligation to act, the call to action and definition of position are studied conjointly with the case law of the Court to determine whether the Article 265 TFEU procedure is a liable route for enhancing the protection of LGB individuals and same-sex couples, by bringing their standard of protection to the same level as the protection under the Racial Equality Directive by means of adopting the proposed Directive. The chapter closes with a recommendation for potential judicial action, based on the research conducted and completed by July 20, 2020.

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1. Chapter 1: EU Non-Discrimination Law

1.1 Historic Background

A lot can be said about the history of the development of non-discrimination law in the EU. Since the establishment of the EEC, discrimination on the ground of sex was prohibited by provisions protecting equal pay between men and women, today codified in Article 157 TFEU.8 Besides having an aspect of social justice and protecting human dignity, ensuring sex equality can be seen as having had a market access objective by ensuring that all human resources were efficiently used.9 However, it was not until 30 years later, with the Treaty of Amsterdam, that a legal basis was inserted in the Treaty which enabled the adoption of further legislative measures covering non-discrimination on the grounds of sex, racial or ethnic origin, religion or belief, disability, age or sexual orientation.10_{This led to the prompt adoption of two}

directives based on Article 19 TFEU which serve as the basis for the discussion in this chapter. Why it took the EU so many decades to expand on its prohibited grounds of discrimination is simply due to the disparities that existed between national laws, societal attitudes and variations in cultural, moral and religious beliefs.11_{For one, it was only in 1985 that an EU Member State}

adopted the very first anti-discriminatory provision on sexual orientation.12 The gradual engagement with issues of sexual orientation discrimination on the EU level, Bell argues, may be attributable to “a coalition of common interests, spillover from policy on the fight against AIDS, and changes in national legislation.”13 Regardless of the reasons, sexual orientation became one of the further grounds against which discrimination was prohibited by the Treaties in today’s Article 19 TFEU, as inserted by the Treaty of Amsterdam. The inclusion of this new legal basis however, did not represent the beginning of exhaustive protection against discrimination on the grounds mentioned in that provision. On the contrary, the protection offered by EU law has remained a reflection of national disparities and a (lack of) consensus among the Member States. This is the consequence of the required unanimity in the Council

8_{Evelyn Ellis and Philippa Watson, EU Anti-Discrimination Law (Oxford University Press 2012) 1.} 9_ibid.

10_{Erica Howard, “EU anti-discrimination law: Has the CJEU stopped moving forward?” (2018) International}

Journal of Discrimination and the Law (2018) 18(2-3).

11_{Mark Bell, Anti-Discrimination Law and the European Union (Oxford University Press 2002) 89.} 12_ibid.

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for taking action on the basis of Article 19 TFEU, leading to what Howard terms a hierarchy of discrimination grounds, which becomes evident when comparing the protection granted to discrimination on the grounds of race and ethnic origin and the ground of sexual orientation. Although disparities at the national level may explain the lack of protection at the EU level, such an argument is incapable of justifying the shortcomings of non-discrimination law on the ground of sexual orientation.

It goes without saying that discrimination on the grounds of racial and ethnic origin is far from being eliminated in the EU. The recent Black Lives Matter protests that have spread across the EU following the long chain of racially motivated police killings in the United States of America point at the still existing and deep-rooted problems of racial and ethnic discrimination and institutional racism in Europe. Claiming that a hierarchy of grounds exists with racial and ethnic origin at the top does not mean that individuals belonging to those protected groups are extensively and justly protected at the fullest EU capacity. Rather, such a claim simply provides that when comparing the legislation which is currently in force, the Racial Equality Directive offers more extensive protection than the Framework Directive.

1.2 Key Concepts

In order to understand the EU’s anti-discrimination legislation, an understanding of discrimination itself within the meaning of EU law must be formed. Basing its definition of equal treatment on the approach developed through the EU’s legislation on equality between men and women, both the Racial Equality and Framework Directive state: “the principle of equal treatment shall mean that there shall be no direct or indirect discrimination.”14_Taking

the provisions of the Treaties, the Racial Equality Directive, the Framework Directive and the case law of the Court, this section examines key concepts which form EU anti-discrimination law: direct and indirect discrimination, harassment, discrimination by association and multiple discrimination.

1.2.1 Direct and indirect discrimination

14_{Directive 2000/78 establishing a general framework for equal treatment in employment and occupation [2000]}

OJ L303 Article 2(1) (Framework Directive); Directive 2000/43 EC) implementing the principle of equal treatment between persons irrespective of racial or ethnic origin [2000] OJ L180 Article 2(1) (Racial Equality Directive).

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Equal treatment within the meaning of EU law, follows Aristotle’s formal equality principle, according to which similar situations must be treated similarly.15_{On the flip side,}

discrimination within the meaning of EU law refers to situations by which comparable situations are treated differently and different situations are treated the same, unless such treatment can be justified.16 Within discrimination, a first distinction is made between direct and indirect discrimination. This distinction cannot be traced back to the Treaties, but rather, is a concept developed by the Court in its case law. The Court, in its judgment of Defrenne stated the following in regard to the concept of equal pay between men and women:

“18. For the purposes of the implementation of these provisions a distinction must be drawn within the whole area of application of Article 119 between, first, direct and overt discrimination which may be identified solely with the aid of the criteria based on equal work and equal pay referred to by the article in question and, secondly, indirect and disguised discrimination which can only be identified by reference to more explicit implementing provisions of a Community of national character.”17

Herewith, the Court connected direct to overt discrimination and indirect to disguised discrimination. At a first glance this seems logical, however, as Ellis and Watson correctly point out, both forms of discrimination can occur in an either an overt or disguised manner.18 In his Opinion of Burton, AG VerLoren van Themaat pointed out that the distinction made by the Court in Defrenne, “does not coincide with a factual distinction between direct discrimination or discrimination in form on the one hand, and indirect discrimination or discrimination in substance on the other.”19_{Hence, since its ruling of Worringham, the Court}

has no longer applied the link between direct and overt discrimination and indirect and disguised discrimination.20

15_{Stefan Gosepath, ‘Equality’ (Stanford Encyclopedia of Philosophy, 27 March 2001)}

<https://plato.stanford.edu/entries/equality/#:~:text=When%20two%20persons%20have%20equal,Aristotle%2C %20Nicomachean%20Ethics%2C%20V>.

16_{Justyna Maliszewska-Nienartowicz, “Direct and Indirect Discrimination in European Union Law – How to}

Draw a Dividing Line?” (2014) International Journal of Social Sciences III(1)

<https://www.iises.net/download/Soubory/soubory-puvodni/pp041-055_ijoss_2014v3n1.pdf> 42.

17_{Case 43-75 Gabrielle Defrenne v Société anonyme belge de navigation aérienne Sabena [1976]}

ECLI:EU:C:1976:56, para 18.

18_{Evelyn Ellis and Philippa Watson, EU Anti-Discrimination Law (Oxford University Press 2012) 144.} 19_{Opinion of AG VerLoren Van Themaat delivered on 8 December 1981 in Case 19/81 Arthur Burton v British}

Railways Board [1981] ECLI:EU:C:1981:297, page 582.

20_{Case 69/80 Susan Jane Worringham and Margaret Humphreys v Lloyds Bank Limited [1981]}

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Today, the Directives contain a definition of direct discrimination, which is equally worded in the Racial Equality and Framework Directive:

“direct discrimination shall be taken to occur where one person is treated less favourably than another is, has been or would be treated in a comparable situation.”

21

Therefore, it is paramount that a comparator in a comparable situation is identified. Furthermore, the link to the ground on which the discrimination is based must be clear. Where direct discrimination is identified, it means that the discriminatory measure affects the whole group of people protected by that ground. Therefore, Maliszewska-Nienartowicz determines that in the context of direct discrimination “a causation is a decisive element”22_whereas,

“indirect discrimination is an effect-related concept,”23_{which deals with a more substantive}

equality – an equality of opportunity.24

An important case in the development of (lack of) direct discrimination on the ground of sexual orientation is Grant v South-West Trains, which demonstrates the importance of finding the correct comparator in a comparable situation. In Grant, the Court ruled on whether discrimination on the ground of sexual orientation was included in the prohibition of discrimination on the ground of sex, and whether discrimination on the ground of sexual orientation was prohibited in itself by EU law. The case concerned Ms Grant who was refused travel concessions for her female partner by her employer, South-West Trains, even though her male predecessor did enjoy these benefits for his long-term female partner. Unfortunately for Ms Grant, the Court applied what Tryfonidou terms the “equal misery argument,”25 by not taking her male predecessor as the comparator but rather a male employee in a long-term same-sex relationship, stating that as “the undertaking’s regulations applies in the same way to female and male workers, it cannot be regarded as constituting discrimination directly based on sex.”26

Furthermore, the Court clarified that the ground of sexual orientation did not fall under the

21_{Framework Directive, Article 2(2)(a); Racial Equality Directive, Article 2(2)(a).}

Draw a Dividing Line?” (2014) International Journal of Social Sciences III(1)

Draw a Dividing Line?” International Journal of Social Sciences (2014) III(1)

24_{Evelyn Ellis and Philippa Watson, EU Anti-Discrimination Law (Oxford University Press 2012) 142.} 25_{Alina Tryfonidou, ‘The Impact of the Framework Equality Directive on the Protection of LGB Persons and}

Same-Sex Couples from Discrimination under EU Law’ in Uladzislau Belavusau and Kristi Henrard (eds), EU

Anti-Discrimination Law Beyond Gender (Hart Publishing 2019) 233.

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provision prohibiting discrimination on the ground of sex and accordingly, was not a protected ground under EU law at that time.

Although the outcome was clearly unfavourable for Ms Grant and her partner, Bell argues that this case was crucial in that it clearly separated the grounds of sex and sexual orientation, highlighting the need for a specific provision in the Treaty, shortly thereafter leading to the inclusion of Article 19 in the TFEU and subsequently the adoption of the Framework Directive in 2000.27

Turning to the concept of indirect discrimination, in the landmark case O’Flynn in relation to the free movement of workers and discrimination on the ground of nationality, the Court determined that:

“20. (…) unless objectively justified and proportionate to its aim, a provision of national law must be regarded as indirectly discriminatory if it is intrinsically liable to affect migrant workers more than national workers and if there is a consequent risk that it will place the former at a particular disadvantage.”28

Taking over the elements of the Court’s interpretation, the definition of indirect discrimination provided by the Racial Equality Directive reads as follows:

“indirect discrimination shall be taken to occur where an apparently neutral provision, criterion or practice would put persons of a racial or ethnic origin at a particular disadvantage, compared with other persons, unless that provision, criterion or practice is objectively justified by a legitimate aim and the means of achieving that aim are appropriate and necessary.”29

Although the definition in the Framework Directive is largely identical, some important differences are noticeable. The Directive offers protection of several more grounds and the definition of indirect discrimination includes the following additional two clauses:

(i) “that provision, criterion or practice is objectively justified by a legitimate aim and the means of achieving that aim are appropriate and necessary, or

27_{Mark Bell, Anti-Discrimination Law and the European Union (Oxford University Press 2002) 110-111.} 28_{Case C-237/94 John O’Flynn v Adjudication Officer [1996] ECLI:EU:C:1996:206, para 20.}

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- 12 - (ii) as regards persons with a particular disability, the employer or any person or organisation to whom this Directive applies, is obliged, under national legislation, to take appropriate measures in line with the principles contained in Article 5 in order to eliminate disadvantages entailed by such provision, criterion or practice.”30

Hence, indirectly discriminatory provisions concern rules which formally are not prohibited but place an individual who belongs to a protected group at a disadvantage. An example given by Christina Tobler is that a job advertisement requiring a driving licence does not appear problematic at first glance. In practise however, this excludes blind people who are not able to acquire a driving licence, and may therefore be deemed indirectly discriminatory on grounds of disability.31 In Sotgiu, the Court determined that the interpretation of indirect discrimination “is necessary to ensure the effective working of one of the fundamental principles of the Community,” in that case the prohibition of discrimination on the ground of nationality.32_The

importance of the inclusion of indirect discrimination in the EU legal order is that it is a “tool for bringing a case involving a ground of differentiation that is not explicitly prohibited within the application field of EC law” and can “make visible and challenge the underlying causes of discrimination, which are often structural in nature.”33_{For example, in the numerous cases on}

part-time workers, the Court acknowledged the disparate effects of unfavourable treatment of part-time workers on women, and (some) women’s difficulty of committing to full-time work.34_{Hereby, the Court’s acknowledgement of indirect sex discrimination is a way to}

“expose the unequal division within the family between men and women of house and care work.”35_{The key difference with direct discrimination is that indirect effect focuses on the}

detrimental effect that a measure eventually has, while direct discrimination focuses on the form of the ‘provision, criterion or practice’.

30_{Framework Directive, Article 2(2)(b).}

31_{Christina Tobler, “Limits and Potential of the Concept of Indirect Discrimination” (2008) European}

Commission DG for Employment, Social Affairs and Equal Opportunities 8.

32_{Case 152-73 Giovanni Maria Sotigu v Deutsche Bundespost [1974] ECLI:EU:C:1974:13, para 11.} 33_{Christina Tobler “Limits and Potential of the Concept of Indirect Discrimination” (2008) European}

34_{Case 96/80 J.P. Jenkins v Kingsgate (Clothing Productions) Ltd. [1981] ECLI:EU:C:1981:80.} 35_{Christina Tobler, “Limits and Potential of the Concept of Indirect Discrimination” (2008) European}

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1.2.3 Discrimination by harassment, association and the case of multiple

discrimination

Harassment is a further key concept of EU anti-discrimination law, which is given an equal definition in both directives. In essence, harassment is considered to be a form of discrimination when unwanted conduct related to the protected grounds “takes place with the purpose or effect of violating the dignity of a person and of creating an intimidating, hostile, degrading, humiliating or offensive environment. In this context, the concept of harassment may be defined in accordance with the national laws and practice of the Member States.”36 What exactly meets the threshold for harassment is to be defined by national law. Certain states, including but not limited to Denmark, France, and the Netherlands do not require the conduct to be ‘unwanted’ for example.37

Furthermore, although not mentioned in the Directives themselves, the Court has shown a certain degree of support for discrimination by association. This refers to a situation in which a person is discriminated against for being associated with a person falling within one of the protected groups. Coleman, for instance, concerned a woman who was the primary caretaker of her disabled son. In the dispute, she alleged being treated less favourably than other employees due to her association with her disabled son, causing her to stop working for her former employer. Although Ms Coleman, the applicant, did not fall within a ground protected by the Framework Directive herself, the Court explained that where an employee suffers direct discrimination on grounds of disability, “an interpretation limiting its application only to people who are themselves disabled is liable to deprive the directive of an important element of its effectiveness and to reduce the protection which it is intended to guarantee.”38_{In 2015, the}

Court applied Coleman by analogy to the Racial Equality Directive in CHEZ, ruling that:

“the principle of equal treatment to which that directive refers applies not to a particular category of persons but by reference to the grounds mentioned in Article 1 thereof, so that that principle is intended to benefit also persons who, although not

36_{Racial Equality Directive, Article 2(3); Framework Directive, Article 2(3).}

37_{‘A comparative analysis of non-discrimination law in Europe’ European Commission, European network of}

legal experts in gender equality and non-discrimination (2016) 51.

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- 14 - themselves a member of the race or ethnic group concerned, nevertheless suffer less favourable treatment or a particular disadvantage on one of those grounds.”39

Though it seems likely, the Court must still determine whether discrimination by association extends to all the protected grounds, including sexual orientation.

Finally, a concept which is in urgent need of more recognition is that of multiple discrimination. This concept concerns situations which involve a combination of separate grounds. It is important to note that this is distinguished from intersectional discrimination which occurs where grounds interact with each other to where they are inseparable, and compound or additive discrimination which occurs where various grounds add to the discrimination on another ground.40 The Racial Equality and Framework Directives both refer to multiple discrimination solely in the preamble, recognising the fact that women often fall victim thereof.41 The issue of multiple discrimination becomes complex due to the different scopes and derogations permitted for the various discrimination grounds, not to mention possible grounds which are not covered by EU law at all. This will be examined further in the analysis of a possible hierarchy of discrimination grounds with regard to sexual orientation in particular.

39_{Case C-83/14 “CHEZ Razpredelenie Bulgaria” AD v Komisia za zashtita ot diskriminatsia [2015]}

ECLI:EU:C:2015:480, para 56.

40_{Christina Tobler, “Limits and Potential of the Concept of Indirect Discrimination” (2008) European}

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2. Chapter 2: Sexual Orientation – The Lowest Rung?

As the focus of this study lies with the (lack of) protection against discrimination on the ground of sexual orientation, this chapter examines the scope and nature of this protection compared with the protection against discrimination on the grounds of racial or ethnic origin.

Article 10 TFEU states that:

“In defining and implementing its policies and activities, the Union shall aim to combat discrimination based on sex, racial or ethnic origin, religion or belief, disability, age or sexual orientation.”42

Therefore, it is clear that it is an obligation on the part of the EU to ensure the prohibition of discrimination based on sexual orientation when implementing its policies. Additionally, the EU legislator is competent to adopt measures based on Article 19 TFEU. A hierarchy of grounds has been created by the stronger protection against discrimination awarded by the Racial Equality Directive in comparison to the grounds protected by the Framework Directive.43 For one, the Framework Directive has a narrower material scope, covering only the fields of employment and occupation, while the Racial Equality Directive covers social security and healthcare, social advantages, education, and access to and supply of goods and services including housing on top of employment and vocational training.44 The 2008 Commission proposal for a new Directive would fill this gap by matching the material scope of the Framework Directive with that of the Racial Equality Directive. Recognising that offering protection in one area of life but not another is ineffective, in a communication about the proposed Directive, the Commission observed that “discrimination on these grounds is clearly just as unacceptable outside the employment sphere as it is within it. When it comes to protection against discrimination, there can be no hierarchy.”45_{However, over a decade later,}

the inequality of equality law in the form of a hierarchy of EU protection is still present.

42_{Consolidated Version of the Treaty on the Functioning of the European Union [2012] OJ C326 Article 10}

(TFEU).

43_{Erica Howard “EU anti-discrimination law : Has the CJEU stopped moving forward?” International Journal of}

Discrimination and the Law (2018) 18(2-3) 60-61.

44_{Racial Equality Directive, Article 3.}

45_{Communication from the Commission to the European Parliament, the Council, the European Economic and}

Social Committee and the Committee of the Regions – Non-discrimination and equal opportunities: A renewed commitment on 2 July 2008 {SEC(2008) 2172} /* COM/2008/0420 final */.

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Secondly, the quality of enforcement between the two Directives differs in that only the Racial Equality Directive requires the establishment of a “body or bodies for the promotion of equal treatment” to provide support to victims of discrimination in pursuing their complaints, conducting surveys, publishing reports and making recommendations.46 The Framework Directive does not make such a demand.

Lastly, the Framework Directive accommodates various derogations to the prohibition of discrimination, which the Racial Equality Directive does not encompass. In terms of direct discrimination, both Directives allow for justifications arising out of genuine and determining occupational requirements (both in Article 4), and positive action (Article 5 Racial Equality Directive and Article 7 Framework Directive). The Framework Directive however, goes far beyond this. Article 2(5) of the Framework Directive provides for a general exception which asserts that measures necessary for public security, the maintenance of public order, prevention of criminal offences, protection of health and the rights and freedoms of others may give rise to an objective justification.47 Bell interprets this essentially as an “open-ended justification for any form of discrimination.”48_{Furthermore, Article 4(2) of the Framework Directive states that}

national practises shall not constitute discrimination on the ground of religion or belief where churches or other organisations based on the ethos of religion or belief “require individuals working for them to act in good faith and with loyalty to the organisation’s ethos.”49_Although

the same provision states that this justification cannot justify discrimination on another ground besides religion or belief, this provision undoubtably coincides with the reluctance of certain organisations to employ (openly) lesbian women and gay men.

All things considered, there exists a clear disparity between the protection awarded under the Racial Equality Directive and the Framework Directive. The former offers more extensive protection while the latter is limited by its material scope, the lack of a designated body and the expanded derogations and justifications. Therefore, a hierarchy of grounds can be spoken of, in which race and ethnic origin is placed somewhere at the top while sexual orientation can be found at the bottom. As the Commission itself stated in the communication accompanying the proposed Directive, discrimination in employment is just as unacceptable as in all other

46_{Racial Equality Directive, Article 13.} 47_{Framework Directive, Article 2(5).}

48_{Mark Bell, Anti-Discrimination Law and the European Union (Oxford University Press 2002) 115.} 49_{Framework Directive, Article 4(2).}

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areas of life.50_{By adopting the Framework Directive, the EU has accepted the fact that sexual}

orientation must be protected as a ground of non-discrimination. This objective cannot be achieved if a lesbian employee is not ensured that she can access social security, healthcare, housing and education equally and with the same protection as her straight colleagues.

2.1 Case law of the Court

The Court, while acting within the limits of its competences, has been influential in the area of non-discrimination, mostly expanding it but also revealing the limitations of secondary law. Consequently, the Courts interpretation of sexual orientation as a protected ground must be carefully considered.

The very first case on sexual orientation as it is covered by the Framework Directive was that of Maruko. The preliminary ruling concerned proceedings between Mr Maruko and the German Theatre Pension Institution, the VddB, and its refusal to grant Mr Maruko a widower’s pension as part of the survivor’s benefits provided by the compulsory occupational pension scheme of his deceased life partner. The pension was refused based on the fact that the scheme only provided entitlement for spouses, not registered life partners. The Court noted that in 2001, Germany altered its legal system to allow for same-sex couples to enter into a formal life partnership which has gradually been made equivalent to marriage, including for the purposes of widow or widower’s pensions. Steering clear from drawing its own conclusion as to the comparability of life partnership to marriage, considering the preamble of the Framework Directive which states that it is without prejudice to national laws on marital status and the benefits dependent thereon, the Court determined that:51

“72. If the referring court decides that surviving spouses and surviving life partners are in a comparable situation so far as concerns that survivor’s benefit, legislation such as that at issue in the main proceedings must, as a consequence, be considered to constitute direct discrimination on grounds of sexual orientation, within the meaning of Articles 1 and 2(2)(a) of Directive 2000/78.”52

50_{Communication from the Commission to the European Parliament, the Council, the European Economic and}

Social Committee and the Committee of the Regions – Non-discrimination and equal opportunities: A renewed commitment on 2 July 2008 {SEC(2008) 2172} /* COM/2008/0420 final */.

51_{Framework Directive, Recital 22.}

52_{Case C-267/06 Tadao Maruko v Versorgungsanstalt der deutschen Bühnen [2008] ECLI:EU:C:2008:179,}

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Therefore, the Court said that where a Member State has decided to grant a form of legal registration to same-sex couples, which is equivalent to marriage, it must treat the two the same way. In that situation, unfavourable treatment would result in direct discrimination on the ground of sexual orientation. However, this results in a large gap of protection for same-sex couples, as their protection remains completely reliant on each individual Member State’s recognition of their legal status. The Framework Directive continues to fail to offer protection in employment situations concerning survivor’s pensions where a Member State refuses to recognise same-sex registered partnerships as being equivalent to marriage.

With its ruling in Römer three years later, the Court repeated this interpretation. This time around, the case concerned a refusal of the German authorities to apply the same method of calculation to Mr Römer’s supplementary pension, given that he was a former employee in a same-sex registered life partnership, compared to former employees married to their opposite-sex spouses. Following the logic developed in Maruko, the Court ruled that such a national provision is precluded by the Framework Directive if:

“in the Member State concerned, marriage is reserved to persons of different gender and exists alongside a registered life partnership such as that provided for by the LPartG, which is reserved to persons of the same gender, and

there is direct discrimination on the ground of sexual orientation because, under national law, that partner is in a legal and factual situation comparable to that of a married person as regards that pension. It is for the referring court to assess the comparability, focusing on the respective rights and obligations of spouses and persons in a registered life partnership, as they are governed with the corresponding institutions, which are relevant taking account of the purpose of and the conditions for the grant of the benefit in question.”53

The case Asociatia ACCEPT is an example of the Court countering homophobia. ACCEPT, an NGO promoting and protecting LGBT rights, brought a case against Mr Becali and the Romanian football club of which he was a shareholder, because Mr Becali publicly stated that he would rather hire a junior player than a homosexual. ACCEPT claimed that ruling out the recruitment of a football player who was rumoured to be gay breached the principle of equal

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treatment. Building upon its ruling in Feryn,54_{the Court restated the possibility for a verbal} discriminatory expression to be considered an instance of direct discrimination.55_{Additionally,}

again transposing Feryn to other discrimination grounds besides race and ethnic origin, the Court noted that the absence of a single plaintiff is no obstacle to a dispute. Alternately, finding direct discrimination within the meaning of the Framework Directive “does not mean that there must be an identifiable complainant who claims to have been the victim of such discrimination.”56

Moreover, this case was important for clarifying the incorporation of a ban on discrimination by assumption under the Framework Directive, which is particularly significant for the ground of sexual orientation. This refers to a situation in which someone discriminates against a person because they think he or she is gay, regardless of their actual sexual orientation.57 The case at hand concerned Mr Becali who discriminated against a football player he thought was gay, although the player publicly presented himself as being straight. This is crucial for the development of LGB rights protection, as it allows for cases of discrimination to be examined without individuals having to ‘come out’ publicly. ACCEPT is an example of the Court taking a big step in the right direction, by no longer limiting its cases to whether a specific person was treated less favourably in comparison to another specific person, but rather whether a certain practise can create discrimination against persons covered by one of the grounds against which discrimination is prohibited.

Parris concerned a dispute between Mr Parris and his former employer, Trinity College Dublin,

who refused Mr Parris’ request that his civil partner should receive a survivor’s pension in the event of his death, based on the fact that the civil partnership was entered after his retirement and after the age of 60. Mr Parris had been in a stable long-term relationship with his same-sex partner for over 30 years. But registered civil partnership only became recognised by Irish law in 2011. By the first preliminary question the referring court asked whether an occupational benefit scheme, such as the one at hand, which makes the right to a survivor’s pension subject to the condition that the civil partnership was entered into before the employee reached the age

54_{Case C-54/07 Centrum voor gelijkheid van kansen en voor racisme bestrijding v Firma Feryn NV [2008]}

ECLI:EU:C:2008:397.

55_{Uladzislau Belavusau, ‘A Penalty Card for Homophobia from EU Non-Discrimination Law: Comment on}

Asociatia Accept (C-81/12)’ 21 Columbia Journal of European Law (2015) 358.

56_{Case C-81/12 Asociaţia Accept v Consiliul Naţional pentru Combaterea Discriminării [2013]}

ECLI:EU:C:2013:275, para 36.

57_{Alina Tryfonidou, ‘The Impact of the Framework Equality Directive on the Protection of LGB Persons and}

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of 60, although national law did not recognise civil partnerships before reaching that age limit, constituted discrimination on grounds of sexual orientation.58

The Court did not find any direct discrimination on grounds of sexual orientation since the national rule relating to the age limit was worded neutrally and applied to both same-sex and opposite-sex couples. What is more, the legal recognition of civil partnerships has caused spouses and civil partners to be treated the same way. Disappointingly, the Court also did not find any indirect discrimination although Mr Parris rightfully pointed out that gay men or lesbian women born before 1951 were placed at a disadvantage as it was impossible for them to satisfy the conditions. The Court relied on recital 22 of the Framework Directive, which leaves marital status and the benefits flowing therefrom up to national law, stating that Member States are completely free “to provide or not provide for marriage for persons of the same sex, or an alternative form of legal recognition of their relationship,” noting that EU law did not require Ireland to do so before 2011 or give it retrospective effect, leaving persons in the situation of Mr Parris completely in the hands of national attitudes towards LGB rights without ample protection from the Framework Directive.59

Next, the Court did find difference in treatment based directly on age, however this was objectively justified. Problematic about this judgment is not only the unfortunate consequence for Mr Parris and his partner, but also the lack of the Court’s understanding and application of multiple discrimination, which the Court dismissed simply by stating that it is not protected by the Framework Directive.60 In her Opinion of the case, AG Kokott noted that the ruling “will reflect real life only if it duly analyses the combination of those two factors, rather than considering each of the factors of age and sexual orientation in isolation.”61_{However, the Court}

did not follow her suggestion and thereby failed to give a potentially landmark ruling on the functioning of multiple discrimination within the EU legal order. Parris is a widely criticised ruling for allowing persons in similar situations to Mr Parris to be continuously discriminated against, contrary to the Framework Directive, by “hiding behind” recital 22 and thereby avoiding giving an EU statement on the legal recognition of same-sex couples. 62

58_{Case C-443/15 David L. Parris v Trinity College Dublin and Others [2016] ECLI:EU:C:2016:897, para 30.} 59_{ibid paras 59-60.}

60_{Case C-443/15 David L. Parris v Trinity College Dublin and Others [2016] ECLI:EU:C:2016:897, para 80.} 61_{Opinion of Advocate General Kokott delivered on 30 June 2016 ECLI:EU:C:2016:493, para 4.}

62_{Alina Tryfonidou, ‘The Impact of the Framework Equality Directive on the Protection of LGB Persons and}

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Two years later, the Court gave a very welcomed ruling in a dispute between Mr Coman and the Romanian general inspectorate for immigration and the Romanian ministry of the interior as regards a request to grant Mr Coman’s same-sex partner the right to reside in Romania for more than three months. Mr Coman, a Romanian and American citizen, and Mr Hamilton, an American citizen, were lawfully married in Belgium. Mr Coman requested information about the conditions under which Mr Hamilton as a third country national would be able to reside lawfully in Romania as a family member of a Romanian citizen. The reply informed him that Mr Hamilton would not be able to obtain residency rights on grounds of EU family reunification because same-sex marriage is not recognised under Romanian national law. The case concerned an interpretation of the Citizens Rights’ Directive 2004/38,63 specifically whether the term ‘spouse’ used in the context of family reunification includes the same-sex married partner of an EU citizen to which the Court answered that that term “is gender-neutral and may therefore cover the same-sex spouse of the Union citizen concerned.”64 Moreover, the Court ruled that:

“a Member State cannot rely on its national law as justification for refusing to recognise in its territory, for the sole purpose of granting a derived right of residence to a third-country national, a marriage concluded by that national with a Union citizen of the same sex in another Member State in accordance with the law of that state.”65

Therefore, while the Court maintained the Member State’s ability to provide for same-sex marriage or not, it has created the obligation for Member States to recognise same-sex marriages lawfully concluded in another Member State for the purposes of free movement. Although this is a positive outcome, which ensures that same-sex couples are able to enjoy the same free movement rights as opposite-sex couples, this still rests upon their ability to lawfully get married in one of the Member States. Furthermore, the case does not resolve issues of discrimination experienced by same-sex couples within the state of which they are nationals in which recognition of same-sex couples is not granted. Therefore, this ruling assists in eliminating the hierarchy by ensuring that once a higher level of protection has been granted, this cannot be lowered when moving to a less protected Member State. On the other hand, it is

63_{Directive 2004/38/EC of the European Parliament and the Council of 29 April 2004 on the right of citizens of}

the Union and their family members to move and reside freely within the territory of the Member States [2004] OJ L158.

64_{Case C-673/16 Relu Adrian Coman and Others v Inspectoratul General pentru Imigrări and Ministerul}

Afacerilor Interne [2018] ECLI:EU:C:2018:385, para 35.

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still enforcing the hierarchy, since EU law allows for a differentiation to be made between those fortunate enough to reside in a state where same-sex marriage is allowed, while those residing in another state, simply by that fact alone, are unable to enjoy the same rights throughout the territory of the EU.

Several conclusions can be drawn from the Courts interpretation of the aforementioned cases. For one, most issues arise with regard to the recognition of same-sex couples. Staying within the limits of its powers, the Court has complemented the provisions of the Framework Directive by ensuring that once a same-sex couple has lawfully entered into a marriage or registered life/civil partnership, this status must be recognised by all other Member States for the purposes of the Directives on free movement and employment. The cases of Asociaţia ACCEPT and

Coman emphasize the importance of protecting the internal market freedoms, particularly the

free movement of workers, highlighting an internal market aspect of non-discrimination law on the ground of sexual orientation. However, the cases mentioned in this chapter continue to emphasize the hierarchy of grounds, caused by the lack of consensus among the Member States.

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3. Chapter 3: The Action For Failure to Act

The judicial system of the EU is based on direct cooperation between European and national courts. The national courts play the dual role of enforcing their own domestic law while also implementing EU law in the role of decentralised European courts.66 This chapter focuses on the action for failure to act under Article 265 TFEU, including a secondary analysis of the action for annulment under Article 263 TFEU, as the two have significant similarities in terms of scope and standing. Although the action for failure to act “forms part of the complete and coherent system of judicial review,” it has produced a rather insignificant number of cases and garnered lesser attention in academic circles than the other EU direct and indirect procedures.67

This chapter gives an overview of the procedural requirements of the action for failure to act and more importantly investigates whether this action provides for a viable solution to the hierarchy of discrimination grounds.

3.1 Article 265 TFEU

The failure to act falls within the realm of direct enforcement actions provided by the EU Treaties. The action seeks a declaration from the Court of Justice or the General Court that unlawful inaction has taken place, in comparison to a 263 TFEU action for annulment which, if successful, results in the declaration that unlawful action has taken place.68 Article 265 TFEU reads as follows:

“Should the European Parliament, the European Council, the Council, the Commission or the European Central Bank, in infringement of the Treaties, fail to act, the Member States and the other institutions of the Union may bring an action before the Court of Justice of the European Union to have the infringement established. This Article shall apply, under the same conditions, to bodies, offices and agencies of the Union which fail to act.

The action shall be admissible only if the institution, body, office or agency concerned has first been called upon to act. If, within two months of being so called upon, the

66_{Robert Schütze, European Constitutional Law (2nd edn, Cambridge 2016) 345.}

67_{Koen Lenaerts, Ignace Maselis, Kathleen Gutman, Janek Tomasz Nowak, EU Procedural Law (1}st_edn,

Oxford University Press 2014) 419.

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Any natural or legal person may, under the conditions laid down in the preceding paragraphs, complain to the Court that an institution, body, office or agency of the Union has failed to address to that person any act other than a recommendation or an opinion.”69

To understand the action for failure to act, it must be broken down into various parts which will be discussed in separate sections, making use of literature and relevant case law of the Court. The following elements will be examined and applied to the case of the hierarchy of discrimination grounds: Who are the possible applicants; who are the possible defendants; what types of inactions may be challenged; and what are the prelitigation requirements?

3.2 Applicants and Defendants

Article 265(1) TFEU stipulates that where the European Parliament, the European Council, the Council, the European Commission or the European Central Bank have failed to act, a 265 TFEU action may be brought against them. The same applies for other bodies, offices and agencies of the Union, which was clarified by the Treaty of Lisbon, apart from the Court of Justice and the Court of Auditors.70 Thus, the EU institutions, bodies, offices and agencies act as the possible defendants. In order to force the EU to adopt the proposed Directive of 2008, the institution that should be called upon to act is the Council. As the Council is mentioned explicitly in Article 265 TFEU, it is eligible to be the defendant to an action for failure to act. In terms of possible applicants, the Court had to clarify in its Transport Policy ruling, that although prior to the Lisbon Treaty, Article 175 EEC only specifically mentioned the Council and Commission, the provision gives the same right of action to all the Community institutions.71 Hence, the Member States and all institutions of the Union within the meaning of Article 13(1) TEU may bring an action under Article 265 TFEU, with the exception of the Court itself. Contrary to being defendants, other bodies, offices and agencies of the Union cannot be applicants to an action for failure to act. Therefore any EU institution or Member

69_{TFEU, Article 265.}

71_{Case 13/83 European Parliament v Council of the European Communities (‘Transport Policy’) [1985]}

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State besides the Council and the Court could act as a potential applicant for an action for failure to act with the aim of eliminating the hierarchy of grounds.

Furthermore, Article 265(3) TFEU stipulates that natural and legal persons, under certain conditions, may be granted standing where the parties have failed to address an act to that person. However, this requires meeting the criteria for direct and individual concern as developed by the Court in the Les Verts and Plaumann cases.72 This criteria was developed with regard to the Article 263 TFEU action for annulment, however, the Court has frequently maintained the parallelism between the two actions, which Koen Lenaerts maintains is grounded in the concept that “the possibility for individuals to assert their rights should not depend upon whether the institution, body, office, or agency concerned has acted or failed to act.”73_{To give one example, in T. Port, which concerned common import quotas for bananas}

from third-countries, the Court ruled:

“59. It is true that the third paragraph of Article [265] of the Treaty entitles legal and natural persons to bring an action for failure to act when an institution has failed to address to them any act other than a recommendation or an opinion. The Court has, however, held that Articles [263] and [265] merely prescribe one and the same method of recourse […] It follows that, just as the fourth paragraph of Article [263] allows individuals to bring an action for annulment against a measure of an institution not addressed to them provided that the measure is of direct and individual concern to them, the third paragraph of Article [265] must be interpreted as also entitling them to being an action for failure to act against an institution which they claim has failed to adopt a measure which would have concerned them in the same way. The possibility for individuals to assert their rights should not depend upon whether the institution concerned has acted or failed to act.”74

A person or undertaking has direct concern where a measure will directly affect the position of the applicant, meaning that the measure itself requires no further implementing provisions.75

72_{Case 294/83 Parti écologiste “Les Verts” v European Parliament [1986] ECLI:EU:C:1986:166 para 31;}

Case 25-62 Plaumann & Co. V Commission of the European Economic Community [1963] ECLI:EU:C:1963:17, 107.

74_{Case C-68/95 T. Port GmbH & Co. KA v Bundesanstalt für Landwirtschaft und Ernährung [1996]}

ECLI:EU:1996:452, para 59. See also Case T-17/96 Télévision française 1 SA (TF1) v Commission of the

European Communities [1999] ECLI:EU:T:1999:119, para 27; Case T-167/04 Asklepios Kliniken GmbH v Commission of the European Communities [2007] ECLI:EU:T:2007:215, para 45.

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Individual concern can be proven if a measure affects an individual or undertaking: “by reason of certain attributes which are peculiar to them or by reason of circumstances in which they are differentiated from all other persons and by virtue of these factors distinguishes them individually just as in the case of the person addressed.”76 Therefore, the difficult Plaumann test requires that a person is affected just as if the missing act would have been addressed to that person. In determining the locus standi of a natural or legal person within the meaning of Article 265(3) TFEU, these requirements must be successfully met.

Therefore, it must be determined whether specific natural or legal persons are capable of meeting the above discussed criteria. As the unlawful inaction concerns the failure of the Council to adopt a directive, this presents issues for the first requirement of direct concern, since the Member States are left with a degree of discretion in transposing and adopting further implementing measures. Therefore, the effects on the legal situation of a natural or legal person cannot be considered to be automatic and the natural or legal person is not directly concerned. Since the requirements of direct and individual concern are cumulative, the fact that direct concern cannot be established means that it is not necessary to examine the presence of individual concern.

Thus, in terms of applicants for an Article 265 TFEU action to eliminate the hierarchy of grounds, the ball lays in the court of EU institutions and Member States rather than natural and legal persons.

3.3 Prelitigation Requirements

It is clear from the provision itself, that at least three prelitigation requirements are in place. These are the obligation to act, the call to action, the definition of position and the two-month time limit. Only when these requirements have been met, meaning that the relevant institution has an obligation to act and the applicant can sufficiently define the inaction, the defendant was called upon to act, but did not define its position within two months, the Court will consider an action for the failure to act under Article 265 TFEU.77

76_{Case 25-62 Plaumann & Co. V Commission of the European Economic Community [1963]}

ECLI:EU:C:1963:17, 107.

77_{Case 377/87 European Parliament v Council of the European Communities [1988] ECLI:EU:C:1988:387,}

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Article 265(2) TFEU expresses that an action is only admissible where the defendant has been ‘called upon to act’ in a letter of formal notice. The Jogamar case of the Court sheds some light on the definition of a call to action. The Court emphasised that a mere request for further information does not suffice. Rather, “it must be expressed with sufficient clarity and precision for the institution to have a clear idea of the content of the decision sought and to realise that the purpose of the request is to compel the institution to state a position” and must make clear that the communication constitutes a preliminary to legal proceedings.78

Therefore, four elements must be included to form a call of action: (i) call upon the possible defendant to act, (ii) make clear that a 265 TFEU action could follow, (iii) identify specifically which measures the applicant wants the defendant to adopt, (iv) identify itself clearly as the applicant since only that person can subsequently bring an action for failure to act under Article 265 TFEU.79

3.3.2 Definition of Position

Upon receiving a call to action, the defendant must define its position within two months so as to prevent judicial intervention. A negative definition was given in Transport Policy, by which the Court stated that a reply to a call to action which does not comment on the legal aspects and does not confirm nor deny the alleged failure to act, does not constitute a definition of position within the meaning of Article 265(2) TFEU.80 Again, in the form of a negative definition, in CEVA, the Court ruled that “[a] letter … stating that examination of the questions raised is in progress, does not, however, constitute the definition of a position which brings to an end a failure to act.”81_{Therefore, the conclusion can be drawn that the definition of position,}

as the call to action, must be clear in that it concerns a prelitigation procedure to an action for failure to act. Where the defendant does not sufficiently define its position within two months upon receiving the call to action, the applicant may bring an Article 265 TFEU procedure

78_{Case T-311/97 Pescados Congelados Jogamar SL v Commission of the European Communities [1999]}

ECLI:EU:T:1999:89, para 35-37.

Oxford University Press 2014 434.

80_{Case 13/83 European Parliament v Council of the European Communities (‘Transport Policy’) [1985]}

ECLI:EU:C:1985:220, para 25.

81_{Joined cases T-344/00 and T-345/00 CEVA Santé Animale SA and Pharmacia Enterprises SA v Commission}