A Rights Revolution

By way of update concerning my post about the ECJ's ruling in Association Belge des Consommateurs Test-Achats, it is interesting to consider some professional analysis of the case. The first such analysis - to my knowledge - has now been done by University of London political scientist Deborah Mabbett. She specifically discusses the question that I also signalled at the end of my post, whether this judgement is the beginning of - in Mabbett's words - a European Rights Revolution. Her conclusion is that we need not worry overmuch; the judgement is less about judicial activism than it is about empowering the EU level against the lobbying efforts of the insurance companies, who had managed to obtain an exception that the really should not have gotten given the philosophy of the directive.

(By the way, look at the recent ECJ judgements against notaries in various MS: Commission v. Greece, Commission v. Germany, Commission v. Austria, Commission v. Portugal, Commission v. Luxembourg, Commission v. France, and Commission v. Belgium. )

Abstract:

In a recent decision, the European Court of Justice has ruled that insurers cannot discriminate on grounds of sex in setting premiums or determining benefits. This paper discusses the background to this decision. It asks whether we are seeing a US-style ‘rights revolution’, fuelled by judicial activism, as suggested by Dobbin et al’s hypothesis of ‘the strength of weak states’ or Kagan and Kelemen’s account of ‘adversarial legalism’. It is shown that neither of these theories captures the distinctive nature of the ECJ’s intervention. An industry-friendly policy was pursued in regulatory venues, but this was overridden by the ECJ’s interpretation of the fundamental right of equal treatment. However, it is also shown that the judicial defence of fundamental rights is a weak basis for social policy, and does not foreshadow a revolution in the development of social rights in Europe.

Let's hope that she is right...