Gender and the Open Method of Coordination

Perspectives on Law, Governance and Equality in the EU

Samantha Velluti, Fiona Beveridge, Fiona Beveridge

• Publisher: Routledge
• Year: 2016
• ISBN:
  9781317130321
• Edition: 1
• Topic: Jura
• Subtopic: Geschlechtszugehörigkeit & das Gesetz

Containing contributions by some of the best known researchers in the field, this volume considers the intersection between the Open Method of Coordination (OMC), a relatively new mode of policy-making, and gender equality, a long-standing area of EU policy. It draws on a range of disciplinary perspectives to examine the effectiveness of the OMC as a medium for the advancement of gender equality within the EU. It also considers gender in the OMC in a variety of contexts and at both a general EU and Member State level. Central to the discussion is the concept of gender mainstreaming which proposes that a gender equality perspective should be incorporated at every level and opportunity of EU policy and practice. The authors assess how successful this has been in the context of the OMC. The book provides a unique and contemporary body of work on the OMC which adds significantly to existing understandings of this form of governance and informs critical debate of EU social governance.

Chapter 1

Introduction – Gender and the OMC

Fiona Beveridge and Samantha Velluti

This collection of chapters focuses on the intersection between a long-standing area of EU policy, gender equality, and a relatively new mode of policy-making, the Open Method of Co-ordination (OMC). Invoking a range of disciplinary perspectives, each contributor examines gender in the OMC in a different context, sometimes at a general EU level, sometimes at a Member State level, all asking in different ways how effectively OMC has served as a conduit or medium for the advancement of gender equality.

Central to these enquiries is the concept of gender mainstreaming which suggests that a gender equality perspective should be incorporated “in all policies at all levels and at all stages, by the actors normally involved in policy-making” (Council of Europe 1998: 10). Different chapters assess how effectively gender mainstreaming has worked in the context of the OMC and what aspects or elements of OMC processes have been particularly helpful or detrimental to the development of effective gender mainstreaming policies and practices.

Setting the Scene

Gender Equality: From ‘Cinderella status’ to Queen without a Crown?

Gender equality made its appearance in the founding Treaties of what is now the European Union (EU) through the inclusion of an equal pay principle in Article 119 of the Treaty of Rome. In the 50 intervening years this somewhat isolated provision has served as the bedrock for the development of what has proved to be a robust and dynamic area of EU policy. The focus on equal pay (now Article 141 EC) has given way to a broader equality agenda, extending from equality between women and men to the elimination of inequality based on sex, racial or ethnic origin, religion or belief, disability, age or sexual orientation (Article 13 EC). Legal obligations now extend beyond the workplace into the provision of services, the exercise of free movement and citizenship rights and the many other areas of activity where Member States must exercise their national powers in accordance with the principle of gender equality established in the Treaty and now regarded as a constitutional obligation. A gender mainstreaming duty in Article 3(2) EC requires the Community to seek to eliminate inequality and promote equality between women and men in all its activities. Meanwhile, in the ‘soft’ law realm, Community equality policy now extends to issues such as domestic violence and healthcare, previously the exclusive domain of Member States (European Commission 2006).

The progressive deepening and widening of EU gender policy has come about in a piecemeal, somewhat organic fashion, reflecting broader concerns about the commitment of the EU to social policy more generally, the turn in EU politics towards a concept of citizenship, developing discourses about the constitutional features of the EU legal order and the progress of market integration, among other elements. Enlargement has also played its part bringing both new leaders and new laggards on gender equality into the EU, and focussing attention on what has (and has not) been achieved. Throughout this process both soft and hard tools have been used: the Commission has played an important role using soft tools such as Programmes of Action and Recommendations to orientate its own activities and the attention of the states in new directions; meanwhile, both the legislature and the European Court of Justice (ECJ) have played significant roles, enacting and bringing to life respectively the hard law provisions which have significantly extended legal protection beyond the issue of pay discrimination between women and men. Despite these developments women and men remain far from equal in the EU. High levels of employment segregation, persistent pay gaps, the widespread acceptance of gender stereotypes and tolerance of sexism, together with unacceptable levels of domestic violence and persistent homophobia and sexual orientation based discrimination tell a different story. Of EU gender equality policy, then, a common if trite conclusion might be that it has made a start, but that it has a long way to go.

The turn towards gender mainstreaming can be understood as a response to perceptions of failure (Beveridge 2007). Mainstreaming offers new understandings of ‘the problem’ and of ‘the solution’ (Beveridge and Nott 2002), and is often taken to require the development of a new toolkit to tackle gender discrimination. Moreover, mainstreaming has been taken by some parties to call into question not only the tools used to tackle discrimination but also the whole process of decision-making about what constitutes a ‘problem’ and what should be done about it. It can be said, therefore, that gender mainstreaming entails a paradigm shift from previous equality measures such as equal treatment, equal opportunities and positive action. Gender mainstreaming addresses the problem of gender inequality at a more structural level in comparison with previous generations of equal treatment and equal opportunities measures which are largely based on a representative form of democracy and a complaints-led model. These types of measures emphasize an individualization of rights whereby the individual is considered to be autonomous and self-sufficient and capable of protecting his or her freedom of choice and action ignoring “both the value of social interaction and the ways in which breaches of rights operate in a collective and institutional way” (Fredman 2005: 351). Thus they mainly provide for a set of equality rights and create the conditions for exercising them but still hold individuals primarily responsible for exercising them. Much of the literature regarding these rights has focussed on issues of discrimination, redistributive justice and prejudice.

In addition, gender mainstreaming is based on a more systematic approach. It identifies gender biases in current policies assessing the impact of gender biases in the reproduction of gender inequality (Verloo 2005) and it is based on a proactive model whereby the measures to counter discrimination are enacted by policy-makers, service providers and civil society groups as well as employers rather than being merely a reactive response to individual claims brought in litigation cases (Fredman 2005: 373). Thus mainstreaming has helped to refocus attention on issues of political participation and, more generally, to raise issues about governance and participatory modes of democracy (Rai 2003; Shaw 2005; Squires 2005).

The OMC as a New Constitutional Architecture for EU Social Governance

OMC refers to the mode of governance developed by the EU working in conjunction with Member States whereby areas of policy competence are addressed through a range of non-binding measures which have been the subject of common agreement and which are designed to pursue an agreed set of policy goals. Typically, OMC has been introduced in areas where policy competence remains largely with the Member States with the EU institutions playing a coordinating role, and where the assent of Member States is thus essential. Like other areas previously dealt with through inter-governmental arrangements, this requirement for consent is an essential requirement and safeguard for the Member States.

Key elements of OMC include:

• the reliance of this strategy on political, rather than legal suasion and on partnership and participatory democracy;

• the strong element of multilateral surveillance (by the Commission), leading to regular benchmarking, peer review and a ‘naming and shaming’ ritual as a ‘soft’ means of enforcement;

• the iterative elements of the process – giving capacity to shape debate (Mosher and Trubeck 2003);

• the drawing up of pan-European guidelines and use of joint language (Eurodiscourse), including the construction of a common or shared view of the ‘problem’;

• the development of a common knowledge base, including indicators;

• the systematic dissemination of knowledge – benchmarking, mutual learning, peer review (Jacobsson 2004).

OMC first developed as the modus operandi of the Community and the Member States in the area of employment policy. Employment policy, previously a Member State preserve, acquired a Community dimension as a result of the incorporation of a new ‘Employment’ chapter in the EC Treaty by the Treaty of Amsterdam in 1997 and the consequent development of what became known as the European Employment Strategy (EES). While the Treaty recognized that primary responsibility for employment issues remained with the Member States, attaining a ‘high level of employment’ became one of the ‘objectives’ of the Community (Article 2 EC) which was subsequently changed to ‘full employment’ (Presidency Conclusions, European Council 2000). The Community institutions were charged with “the promotion of coordination between employment policies of the Member States with a view to enhancing their effectiveness by developing a coordinated strategy” (Article 3(1)(i) EC). Thus the process is a multi-level one, involving a broad range of actors including the social partners (Velluti 2003).

In 1997 the Council adopted Guidelines for Member States’ Employment Policies which utilized a range of ‘soft’ tools to encourage states to bring their employment policies into line. This was significant since annual review by the Commission and Council was anticipated in these Guidelines: as Jacobsson notes, compared to other ‘soft law’ processes in the EU the OMC used in the context of the EES included a “more systematic system of monitoring with clear procedural mechanisms” (Jacobsson 2004: 358). In subsequent years the EES has gathered momentum and it has been developed into a quasi-fully-fledged mode of governance introducing new institutional arrangements at both European and national levels with the establishment of further objectives and indicators and thus maintaining employment high on the agenda of the EU.

From its inception, the EES addressed gender equality issues, as it had already been recognized that the forces of economic integration and the development of the Single Market might result in a potential worsening of the situation of women but equally, and in a more strategic manner, that the objective of high employment in the EU could only be achieved in numerical terms by taking into account women’s employment and working conditions. Further, the setting up and launch of the EES must be understood in the context of the development of a platform for action on gender equality at the 1995 UN summit on women in Beijing which explains in part the increase in importance of gender equality at European level (Rubery 2005:392).

Relying on the findings of a report into the impact of the Single Market on women’s employment the Commission concluded in 1998 that “active policies to promote the equal sharing between men and women of work and family responsibilities are needed to avoid that women are harder hit than men by the cuts in public spending caused by convergence policies in Member States, increased competition, added pressure on wages and social standards and the de-regularization of employment.” (CEC 1998: 12). Equal opportunities formed one of the four ‘pillars’ of the first set of guidelines and was also integrated into the implementation of the other pillars and to evaluation of the results. Thus the promotion of gender equality became one of the key objectives of EES and one of the key measures of its success with equal opportunities between women and men being established as one of the four pillars of the EES and the commitment to gender mainstreaming being included as one of the guidelines of the strategy. Moreover, gender equality targets have been developed with a specific female employment rate objective for 2005 and 2010 and targets for the provision of childcare. These developments have been included in the new phase of the EES despite the disappearance of the fourth pillar and the objective of equal opportunities between women and men being reduced to one guideline following the review and simplification of the EES and its synchronization with the economic coordination process resulting in integrated guidelines.

The OMC has now assumed centre stage as the key method of governance in relation to both the EES and the Social Policy Agenda, two areas of policy-making where gender is acknowledged to have a central role. These two policy areas are now key arenas for the development of EU gender equality policy. The launch in 2000 of the Lisbon Strategy, a strategy for economic management based on the objectives of long term sustainable economic growth, full employment, social cohesion, and transition to a knowledge based society, gave added political impetus to these processes, and the OMC has now also been extended to other areas of policy-making. Though the precise form of OMC varies from area to area, the key characteristics identified above are common features.

The use and spread of OMC has led to its interrogation as a form of governance within the EU and this has given rise to different and conflicting views as to its nature, value and effectiveness. Those in favour of the OMC have defined it as the ‘Lazarus of European integration’, as promoting experimental learning and deliberative problem-solving, as a ‘third way’ for EU social policy, as a middle course between regulatory competition and harmonization and inter-governmentalism and supranationalism and as a tool for achieving convergence of results whilst respecting national diversity. On the other hand, critics of the OMC have argued that it allows the EU to pursue its creeping agenda of Europeanization in fields that are the domain of national decision-making or that, conversely, it represents a potential threat to the Community Method, that it lacks transparency, accountability and enforcement mechanisms and that it is thus ineffective as an instrument of policy learning and transfer. These contrasting interpretations of the OMC confirm the challenge it poses to scholars in attempting to situate it in clearly definable theoretical contexts.

Like the turn to gender mainstreaming, OMC has given rise to the development of new tools and new approaches to policy-making, as well as new and different forms of engagement between key stakeholders in employment policy. This raises important questions about capacities and the effectiveness of different methods, as well as issues about governance. One particular concern is the impact of enlargement and the experiences of new Member States in dealing with OMC processes which present distinct challenges by comparison with hard law measures (Koldinská; Fuszara, in this collection; Velluti 2005).

Key Themes and Structure of the Book

This collection of chapters represents the result of a one-day workshop held in Liverpool in 2006 which brought together scholars and researchers involved in studies of the OMC’s processes and outputs to explore the contribution of OMC to EU gender policy. The collection draws on the discussions and preliminary conclusions of this seminar and its aim is to provide new insights and fresh perspectives into the interaction between these two policy concerns: gender policy and the OMC. In particular it considers how well OMC can serve as a policy instrument for the advancement of gender policy, what opportunities and risks are attached to the use of OMC as a tool for gender policy, and what its limitations are in the context of the recent enlargement and transition from an EU of 15 Member States to one of 27. Further, it offers a valuable insight into the practice of gender mainstreaming and the conduct of gender politics in these new policy arenas.

Collectively and separately, the chapters explore four key themes:

• Gender and the Nation State. Diversity between Member States; the usefulness/appropriateness of models (for example, models of the welfare state); the directions and forces of policy transfer; the question of Europeanization.

• Visions of Gender Equality. The meanings of gender equality promoted under OMC; ideals of gender equality; the relationship between ideals and models of nation states.

• Strengths and limitations of ‘soft’ approaches. How does the choice of ‘hard’ versus ‘soft’ or vice versa relate to EU political commitment on the one hand and Member State acceptance/compliance on the other? What is the contribution of the OMC and gender mainstreaming modes of governance to our understanding of policy-making at European and national levels? Does the dichotomy ‘soft’/‘hard’ stand?

• Actors. Who are the actors participating in the OMC, who doesn’t and why? In what way does the involvement or absence of certain actors determine OMC processes?

The contributions examine the applicability of the OMC to differing aspects of gender policy at national level, some exploring the themes theoretically, others more concretely by having a geographic spread and relying on the use of ad hoc case studies (Aybars, Koldinská, Fuszara, Velluti). In particular, the chapters provide new insights into the study of European integration for domestic political institutions and policy processes which are summarized by the concept of ‘Europeanization.’ The contributions analyze the relationship between EU-level governance arrangements and domestic transformations, which are examined in terms of changes in domestic policies, discourses and institutions including the role of law in adapting to change from a gender perspective.

This collection opens with an introductory chapter by Fiona Beveridge in which she introduces and traces the development of the two central issues of EU gender equality policy and the OMC. The emergence of gender mainstreaming as a strategy and its resonance and disconnects with OMC are noted and discussed. Finally this chapter discusses the key themes of the book which recur throughout the collection and offers some thoughts on how these should be approached.

In chapter 3, Roberta Guerrina, focuses on demography and fertility rates, an important underlying issue often given less attention than is due in discussions of gender equality. In particular, the chapter looks at the link between women’s activation policies and demographic trends in the EU and asks whether the EES provides an adequate framework for the development of a multidimensional approach to gender equality encouraging higher female participation in the official labour market whilst, at the same time, challenging traditional power structures in the family. Her analysis of employment policies is centred on three interrelated issues: (1) gender power hierarchies in the family; (2) women’s choices about mothering/motherhood; (3) fertility rates.

Julia O’Connor, in chapter 4, considers the potential and limitations of the OMC for enhancing social policy objectives in the EU, in particular the potential for broadening the possibilities for gender equality beyond the labour market participation objectives of the EES. This is discussed with reference to...