Cases, Materials and Text on National, Supranational and International Non-Discrimination Law

This casebook, the result of the collaborative efforts of a panel of experts from various EU Member States, is the latest in the Ius Commune Casebook series developed at the Universities of Maastricht and Leuven. The book provides a comprehensive and skilfully designed resource for students, practitioners, researchers, public officials, NGOs, consumer organisations and the judiciary. In common with earlier books in the series, this casebook presents cases and other materials (legislative materials, international and European materials, excerpts from books or articles). As non-discrimination law is a comparatively new subject, the chapters search for and develop the concepts of discrimination law on the basis of a wide variety of young and often still emerging case law and legislation. The result is a comprehensive textbook with materials from a wide variety of EU Member States. The book is entirely in English (i.e. materials are translated where not available in English). At the end of each chapter a comparative overview ties the material together, with emphasis, where appropriate, on existing or emerging general principles in the legal systems within Europe.
The book illustrates the distinct relationship between international, European and national legislation in the field of non-discrimination law. It covers the grounds of discrimination addressed in the Racial Equality and Employment Equality Directives, as well as non-discrimination law relating to gender. In so doing, it covers the law of a large number of EU Member States, alongside some international comparisons.
The Ius Commune Casebook on Non-Discrimination Law
- provides practitioners with ready access to primary and secondary legal material needed to assist them in crafting test case strategies.
- provides the judiciary with the tools needed to respond sensitively to such cases.
- provides material for teaching non-discrimination law to law and other students.
- provides a basis for ongoing research on non-discrimination law.
- provides an up-to-date overview of the implementation of the Directives and of the state of the law.
This Casebook is the result of a project which has been supported by a grant from the European Commission's Anti-Discrimination Programme.

The African National Congress and its Critics: 'Predatory Liberalism', Black Empowerment and Intra-Alliance Tensions in Post-Apartheid South Africa

Post-apartheid South Africa is characterized by centralized, neo-liberal policymaking that perpetuates, and in some cases exaggerates, socio-economic inequalities inherited from the apartheid era. The African National Congress (ANC) leadership’s alignment with powerful international and domestic market actors produces tensions within the Tripartite Alliance and between government and civil society. Consequently, several characteristics of ‘predatory liberalism’ are evident in contemporary South Africa: neo-liberal restructuring of the economy is combined with an increasing willingness by government to assert its authority, to marginalize and delegitimize those critical of its abandonment of inclusive governance. A new form of oligarch power, combining entrenched economic interests with those of a new ‘black bourgeoisie’ promoted by narrowly implemented Black Economic Empowerment policies, diminishes prospects for broad-based socio-economic transformation. Because the new policy environment is failing to resolve tensions between global market demands for increasing market liberalization and domestic popular demands for poverty-alleviation and socio-economic transformation, the ANC leadership is forced increasingly to confront ‘ultra-leftists’ who are challenging its credentials as defender of the National Democratic Revolution which was the cornerstone in the anti-apartheid struggle.

Management of Barrett's esophagus in the UK: Overtreated and underbiopsied but improved by the introduction of a national randomized trial

OBJECTIVES: To assess the variation in practice of Barrett's esophagus (BE) management in comparison with accepted international guidelines before and after the introduction of a large BE randomized controlled trial (RCT) with protocols including those of tissue sampling.
DESIGN: A validated anonymized questionnaire was sent to 401 senior attending gastroenterologists asking for details of their current management of BE, especially histological sampling. Of the 228 respondents, 57 individuals (each from a different center) were in the first group to enter the ASPirin Esomeprazole (BE) Chemoprevention Trial (AspECT), and we assessed change in practice in these centers.
RESULTS: Ninety percent of specialists did not take adequate biopsies for histological diagnosis. Furthermore, 74% would consider aggressive surgical resection for prevalent cases of high-grade dysplasia in BE as their first-line choice despite the associated perioperative mortality. Ninety-two percent claim their lack of adherence to guidelines is because there is a need for stronger evidence for surveillance and medical interventions. Effect of the AspECT trial: Those clinicians in centers where the AspECT trial has started have improved adherence to ACG guidelines compared with their previous practice (P < 0.05). BE patients now get 18.8% more biopsies compared with previous practice, and 37.7% if the patient is entered into the AspECT trial (P < 0.01).
CONCLUSIONS: This large study indicates both wide variation in practice and poor compliance with guidelines. Because optimal histology is arguably the most important facet of BE management, the improvement in practice in centers taking part in the AspECT trial indicates an additional value of large international RCTs.

Sovereignty, Article 4(2) TEU and the Respect of National Identities: Swinging the Balance of Power in Favour of the Member States?

The question of whether and to what extent sovereignty has been transferred to the European Union (EU) from its Member States remains a central debate within the EU and is interlinked with issues such as Kompetenz-Kompetenz, direct effect and primacy. Central to any claim to sovereignty is the principle of primacy, which requires that Member States uphold EU law over national law where there is a conflict. However, limitations to primacy can traditionally be found in national jurisprudence and the Maastricht Treaty introduced a possible EU limitation with the requirement that the EU respect national identities of Member States. The Lisbon Treaty provided only minimal further support to the principle of primacy whilst simultaneously developing the provision on national identities, now found within Article 4(2) TEU. There are indications from the literature, national constitutional courts and the Court of Justice of the EU that the provision is gathering strength as a legal tool and is likely to have a wider scope than the text might indicate. In its new role, Article 4(2) TEU bolsters the Member States’ claim to sovereignty and the possibility to uphold aspects crucial to them in conflict with EU law and the principle of primacy. Consequently, it is central to the relationship between the constitutional courts of the Member States and the CJEU, and where the final elements of control remain in ‘hard cases’. However, it does so as part of EU law, thereby facilitating the evasion of direct fundamental conflicts and reflecting the concept of constitutional pluralism.

Building public policy on shifting sands: the case of the National Asset Management Agency

Over the last thirty years, there has been an increased demand for better management of public sector organisations (PSOs). This requires that they are answerable for the inputs that they are given but also for what they achieve with these inputs (Hood 1991; Hood 1995). It is suggested that this will improve the management of the organisation through better planning and control, and the achievement of greater accountability (Smith 1995). However, such a rational approach with clear goals and the means to measure achievement can cause difficulties for many PSOs. These difficulties include the distinctive nature of the public sector due to the political environment within which the public sector manager operates (Stewart and Walsh 1992) and the fact that PSOs will have many stakeholders, each of whom will have their own specific objectives based on their own perspective (Boyle 1995). This can
result in goal ambiguity which means that there is leeway in interpreting the results of the PSO. The National Asset Management Agency (NAMA) was set up to bring stability to the financial system by buying loans from the banks (which were in most cases, non-performing loans). The intention was to cleanse the banks of these loans so that they could return to their normal business of taking deposits and making loans. However, the legislation, also gave NAMA a wide range of other responsibilities including responsibility for facilitating credit in the economy and protecting the interests of taxpayers. In more recent times, NAMA has been given responsibility for building social housing. This wide-range of activities is a clear example of a PSO being given multiple goals which may conflict and is therefore likely to lead to goal ambiguity. This makes it very difficult to evaluate NAMA’s performance as they are attempting to meet numerous goals at the same time and also highlights the complexity of policy making in the public sector. The purpose of this paper is to examine how NAMA dealt with goal ambiguity. This will be done through a thematic analysis of its annual reports over the last five years. The paper’s will contribute to the ongoing debate about the evaluation of PSOs and the complex environment within which they operate which makes evaluation difficult as they are
answerable to multiple stakeholders who have different objectives and different criteria for measuring success.