Manchester Jean Monnet Centre of Excellence Yearbook 2008, edited by Filippo N. Nereo & Kimberley J. Taylor

Manchester Jean Monnet Centre of Excellence

http://www.manchester.ac.uk/jeanmonnet/yearbook.htm

Yearbook 2008

Edited by Filippo N. Nereo

Kimberley J. Taylor

Manchester Jean Monnet Centre of Excellence Yearbook 2008 © 2009 Manchester JMCE http://www.manchester.ac.uk/jeanmonnet/yearbook.htm

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Published by

Manchester Jean Monnet Centre of Excellence School of Languages, Linguistics and Cultures

University of Manchester

© Manchester Jean Monnet Centre of Excellence, University of Manchester, 2009

Manchester Jean Monnet Centre of Excellence School of Languages, Linguistics and Cultures

University of Manchester Oxford Road

Manchester M13 9PL UK

Email: [email protected]

URL: http://www.manchester.ac.uk/jeanmonnet/yearbook.htm

All rights reserved. No part of this publication may be reproduced, stored in a retrieval system or transmitted in any form or by any means, electronic, mechanical, photocopying, recording, or otherwise, without prior permission of the Manchester Jean Monnet Centre of Excellence, University of Manchester.


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Editorial Board Editors Filippo N. Nereo, University of Manchester Kimberley J. Taylor, University of Salford

Founding Editor Filippo N. Nereo, University of Manchester

Advisory Board Professor Clive Archer, Manchester Metropolitan University

Professor Stefan Berger, University of Manchester Professor Damian Grimshaw, University of Manchester

Dr Christian Kaunert, University of Salford Professor Stephen Milner, University of Manchester

Mr Spencer Pearce, University of Manchester


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Table of Contents Editorial introduction........................................................................................................... vi

Foreword by Stefan Berger, Director of the Manchester JMCE........................................... vii Foreword by Ján Figeľ, EU Commissioner for Education, Training, Culture and Youth....... ix

“Words reaching into the Stillness”. Remembrance and Forgetting in Sarajevo sylvia du Sylvia Dubery, University of Newcastle................................................................................1

The Implementation of the Employment Framework Directive in Germany stephie feh Stephie Fehr, University of Manchester .............................................................................11

Europaeum: a blue-print for East-West integration? maxim gatskov university of regen Maxim Gatskov, University of Regensburg.........................................................................25

Annual Conference of the British International History Group.............................................29 Call for Contributions/Papers: European Minorities in Cross-Disciplinary Perspective ........30

Manchester JMCE Seminar Series 2009...............................................................................31 Manchester JMCE Annual Lecture 2009..............................................................................32


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Editorial introductionWelcome to the inaugural issue of the Manchester JMCE Yearbook, a forum for the interdisciplinary study of Europe in its widest sense. We are delighted and enthused by the challenges of creating a publication that reaches beyond our own disciplines and interests and seeks to draw together postgraduate researchers on all aspects of ‘Europe’.

The broad definition of Europe within the JMCE Yearbook seeks to incorporate an inclusive and alternative view of Europe. Going beyond the traditional politically-based notions of Europe as the EU, this publication, it is hoped, will promote the wider study of Europe and a more encompassing understanding of what have traditionally been marginalised aspects of European Studies. Although there are publications which specialise in specific areas of Europe, for example in specific regions, cultures or disciplines, none to our knowledge bring together a truly interdisciplinary field of subjects. The nature of the publication is reflected in its style and presentation. For example we did not feel it appropriate to impose any particular style of referencing. Instead we remained inclusive and open to all relevant fields of study. Therefore articles are a reflection of their own particular disciplines. The Yearbook further offers opportunity for postgraduate research students to enhance their employability by publishing

their research in a forum peer-reviewed by some of the best scholars in their subjects. We are delighted with the interest this project has generated across Europe, and we look forward to further JMCE initiatives targeted at postgraduate students in the coming year, such as the conference on European Minorities in Cross-Disciplinary Perspective, and the second edition of the Yearbook planned for publication this autumn.

We are delighted that the project has received public endorsement at European level and we would like to express our thanks in particular to European Commissioner Ján Figel’ for his support. Our thanks also go to the members of this year’s advisory board, academic staff from the three constituent members of the Manchester JMCE, for giving their time and expertise to the Yearbook. Special thanks go to Professor Stefan Berger, Director of the JMCE, and to all the research students who submitted articles for review. In particular we congratulate Sylvia Dubery and Stephie Fehr whose articles were selected by the advisory board to feature in this year’s publication, and thank Maxim Gatskov for his commentary on the Europaeum initiative.

FNN & KJT Manchester, January 2009


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Foreword by Stefan Berger, Director of the Manchester JMCE

The Manchester Jean Monnet Centre of Excellence, which was established in 2003, prides itself in combining the greatest research expertise on

European Studies in the North West of England with a buoyant postgraduate and postdoctoral culture and outreach activities which take things European right into the centre of the community of the city and region. It therefore welcomes the initiative by postgraduate students to publish a Manchester JMCE Yearbook, which is targeted primarily at postgraduate students and postdoctoral fellows. They are the research leaders of the future and it is to them that we must look for advancing the research agendas of tomorrow. The quality of the articles of this first yearbook and the spread of articles across disciplines augurs well for future editions and demonstrates the high quality of research into European Studies undertaken in higher education institutions in Europe.

It seems to me to be of paramount importance for the future of research on Europe to overcome strict disciplinary boundaries and move towards the production of interdisciplinary research which takes seriously the issue of intertextuality. In my own field of studies, European nationalism, we have a vast amount of research produced from different disciplinary angles: history, politics, sociology, philosophy, psychology, linguistics, literary studies, media studies. Yet it is still rare for scholars of European nationalism to transgress their disciplinary borders and ask about the connections between different disciplines and genres in

producing or opposing nationalism and making national identity the powerful form of collective identity that it is in today’s Europe. In fact, I would go as far as to say that the disciplinary divide prevents us from fully understanding the object of our studies, in this case nationalism and produces tunnel vision which ignores at its own peril that nationalism is not a disciplinary phenomenon but gains its powerful appeal precisely because of its intertextual abilities. A yearbook which combines perspectives on Europe from literature, law and education is a promising start for a dialogue across those disciplinary divides.

The Manchester Jean Monnet Centre of Excellence reflects this desire for interdisciplinarity in its combination of disciplines cooperating in externally funded research projects. They include political science, history, economics, law, literature and linguistics, and representatives of those disciplines come from all three Manchester-based universities, the University of Manchester, Manchester Metropolitan University and the University of Salford. Together, scholars from these three institutions organise a fortnightly interdisciplinary research seminar, about a dozen cross-disciplinary workshops and conferences a year, various information and discussion events addressed to a larger lay public interested in European affairs. Over the last years it has been the home of major research programmes, such as the one on ‘Migrations and Diasporas in Europe’, funded by the British Arts and Humanities Research Council and the European Commission (and led by Margaret Littler and Encarna Gutiérrez Rodríguez, specialists in literature and sociology


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respectively) or the one on ‘Representations of the Past: The Writing of National Histories in Nineteenth and Twentieth Century Europe’, funded by the European Science Foundation.

Due to its excellence in research, which was confirmed by the recent results of its stakeholders in the 2007 RAE, the Manchester Jean Monnet Centre of Excellence is also attracting high-quality research students and postdoctoral fellows, which add to the stimulating research community. In January 2008 the Centre organised its first Postgraduate Conference with support from the UK Grad programme. It is out of this vibrant community of postgraduate students that the initiative for this yearbook emerged and I want to congratulate and thank in particular Filippo Nereo from the

University of Manchester and Kimberley Taylor from the University of Salford, who, as editors of the Yearbook, have played the leading role in getting this project under way. Their energy, enthusiasm and professionalism have been infectious, and the Centre is benefitting enormously from their activities. I speak, I am sure, for the whole management board of the Manchester Jean Monnet Centre of Excellence when I say that I already look forward to the second issue of this important and innovative Yearbook in European Studies.

Stefan Berger Director of the Manchester JMCE

January 2009


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Foreword by Ján Figeľ, EU Commissioner for Education, Training, Culture and Youth

The Manchester Jean Monnet Centre of Excellence Yearbook is yet further proof of the remarkable dynamism that is displayed by the network of professors, researchers and students who

are active in the Jean Monnet community. With 134 Centres of Excellence, 798 Chairs and 2,014 Modules and permanent courses in 61 countries on the five continents, the Jean Monnet network is the world's most impressive pool of knowledge on European integration.

Publications such as the Manchester JMCE Yearbook help fill the knowledge gap between European developments, academia and ordinary citizens. The specificity of this publication is that it aims to be a platform for the work of young research students. By building a bridge between the widely respected holders of Jean Monnet Chairs and the future generation of scholars, the Manchester Jean Monnet Centre of Excellence makes a most significant contribution to the future of European studies. That the Yearbook project emerged at the Manchester Jean Monnet Centre is not surprising. Manchester was selected in the framework of the 2002 Jean Monnet call for proposals, organised by the European Commission. Since then, it has widened its base with partners from Manchester Metropolitan University and the University of Salford creating a vibrant intellectual community for European studies and related activities in Greater Manchester and the North West of England. By creating a region–wide Centre of Excellence Manchester has taken

a concrete step towards the modernisation of our university landscape. In this context, I would like to share with you a number of more general thoughts on the reform of Europe’s higher education. I will focus on three challenges: - qualifications for the future; - global attractiveness; and

- mobility for all.

Qualifications for the future We have seen a lot of progress over the past years with regard to the development of compatible structures in European higher education. After the structural reforms of the Bologna Process, now it is high time to look more closely at content. Are the qualifications universities provide good enough? Are they relevant for the mission of today’s academia? In addition to its age–old mission of preserving a tradition of scholarship, expanding the frontiers of knowledge and nurturing critical thinking, higher education has two additional functions today: - training people for high–level jobs in the labour market; and - preparing for active citizenship.

Many students today will find themselves working in jobs that have not even been imagined yet. Since we cannot predict the exact nature of these future jobs, we need to develop the concept of an ‘optimal skills mix’. This means that we must continue to teach specific skills, but graduates will increasingly need a set of more general skills, such as problem–solving and creativity, language skills, analytical skills, etc. Educational institutions are faced with the challenge of learning how to impart


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these new skills. In Europe we will see the emergence of a sectoral qualifications framework and more general skills such as “learning to learn”. Together with the Member States, the European Commission proposes to sharpen students’ performance with regard to both discipline–related and generic skills.

Global attractiveness There are over 4,000 higher–education institutions in the wider Europe. But despite this impressive number, our populations are still relatively under–qualified. Not enough of our talented young people enrol in university courses and not enough adults have ever seen a university from the inside. Student enrolment rates are 25% lower than in the U.S. (57% and 82% respectively) and only 23% of the EU working–age population has achieved tertiary education compared to 39% in the U.S. Also, Europe attracts large numbers of students from other continents, but we certainly do not use our full potential as a global player in advanced training. What can we do to make higher education more attractive for our citizens and for students and scholars from other continents? How can universities become centres for lifelong learning? The structural changes we have seen taking place under the Bologna flag make learning offerings more transparent and comparable. But universities also need more autonomy to carry out their mission and manage their resources. Research shows that there is a positive correlation between autonomy, performance and better use of resources. The European Commission has launched a University–Business Forum in 2008 to provide a platform for the exchange on such issues as employability of graduates, continuing education, management of institutes of higher education, etc. We also support

university–business partnerships through the Erasmus programme. For international attractiveness, activities such as Erasmus Mundus and the worldwide Jean Monnet projects should go hand in hand with active promotion by universities themselves. The activities of Manchester’s Jean Monnet Centre of Excellence can be an example in this context.

Mobility for all From the vantage point of the European Commission, the issue of mobility is inextricably linked to the Erasmus Programme. Erasmus mobility is certainly a European success story; we have moved from modest beginnings with 3,244 students in 1987 to the current figure of almost 160,000 students participating every year. We celebrated one million Erasmus students a few years ago and aim to celebrate three million by 2012. These are impressive figures, but there is no room for complacency. Learning mobility is neither an end in itself nor primarily a means for self–fulfilment. There is a growing consensus that mobility is a vital ingredient of education and training in times of globalisation which should neither begin with nor be limited to higher education. At my request, a high–level expert forum has looked into the challenges of mobility; here are some of the questions on the table: how can we make mobility the rule for all young people, rather than the exception? Is it a problem of motivation? Will better support in the organisation of the stay abroad help? What about student loans? The European Commission is currently discussing the forum’s recommendations and will publish a Green Paper on mobility in the course of 2009. What is clear to us is that, in time, all graduates should have the opportunity to undertake a recognised period of study or a


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work placement in another country during their studies. All degree programmes at bachelor, master and doctoral level should include a mobility window as an integral and recognised part of studies. We also have to think about more generous and more accessible student support. Any substantial increase in mobility will require a new partnership of all players, from governments to regions, from businesses to foundations, and from universities’ leadership to students and professors.

Conclusion With the creation of the Yearbook, the Manchester Jean Monnet Centre of

Excellence has taken a concrete step towards the innovation of European studies. As such, it brings a precious contribution both to the interdisciplinary study of Europe and to the development of a dynamic university landscape, which is a hallmark of the Jean Monnet Centres of Excellence.

Ján Figel’ EU Commissioner for Education,

Training, Culture, and Youth January 2009


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“Words reaching into the Stillness”. Remembrance and Forgetting in Sarajevo

Sylvia Dubery,

University of Newcastle I take my title from T.S. Eliot in “Four Quartets”, and apply it to the poetic impulse to fill with words the silence that follows tragedy. My essay is an exploration of how cultural memory has evolved in Sarajevo over a century of conflict. I examine three “lieux de memoire” that have shaped and redefined the cultural identity of the city over the twentieth century. I also examine the idea of writing as an act of cultural resistance that defies attempts at annihilation and forgetting, and the conflict between remembrance and forgetting in Bosnia, with reference to the writings of Pierre Nora and Nietzsche and the poetry of Bosnian poet Semezdin Mehmedinovic. In writings influenced by T.S. Eliot, his book “Sarajevo Blues” uses words for remembrance, resistance and to offer hope for the rebuilding of the nation’s future.

A capital city defines a country and thus defines a nation’s identity. In drawing together diverse elements of a country in close proximity a collective identity is forged, which is challenged and altered during times of conflict. After the shelling and after the war, a city falls silent again and what the citizens do to remember that part of their history makes a fundamental contribution to the identity that they create for themselves. In discussing cultural memory the definition that I have been most conscious of is that of Hirsch and Smith, who describe it as “the product of fragmentary personal and collective experiences articulated through technologies and media that shape even as they transmit memory.”1 In other words, a people with a shared history identify with narratives, heroes, art forms and media and use them to create ways of perceiving themselves and their past. Sarajevo has a particularly potent identity as a city where time and space can be evoked and in this essay I have focussed on three sites of memory in Sarajevo that 1 Marianne Hirsch and Valerie Smith, From “Feminism and Cultural Memory: An Introduction,” Theories of Memory, ed. Michael Rossington and Anne Whitehead (Edinburgh: Edinburgh University Press, 2007), p.225.

have shaped and redefined the identity of the people of the city. Often described as a city at the crossroads between east and west, it has for centuries represented a place where ethnic harmony has been achieved, where Catholics, Orthodox Bosnians, Muslims and Jews have lived alongside each other since the days of the Ottoman Empire.

However, as Benedict Anderson writes in discussing nations as “Imagined Communities,” “creating a national identity involves an element of forgetting”2. The reality of Sarajevo’s history is much more complex, as with any city whose diverse character of the city has arisen from a history of invasions and migrations. Tensions between the three ethnic groups of Serbs, Croats and Muslims can be traced back as far the Battle of Kosovo in 1389, and the persecution of Bosnian Christians in the 15th century. As I will discuss later, it has however suited the purposes of nationalism to create a mental image of the city as a tolerant urban space drawing the nation together, particularly where a 2 Benedict Anderson, From “Imagined Communities: Reflections on the Origin and Spread of Nationalism,” Theories of Memory, p.249.


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common enemy threatens the nation’s stability and prosperity. At the start of the twentieth century Serbia was calling for South Slav unity against Turkish and Austro-Hungarian rule and a strong nationalist sentiment was growing. Sarajevo is also the place where many claim the twentieth century began, with a turbulent history that spans the century. In looking at how the city has remembered significant events of the twentieth century, I will explore how these sites of memory represent the threat to this identity, and the shifting attitude to remembering and forgetting in Sarajevo. I also consider the poetic responses of T.S. Eliot, writing at the start of the century and Bosnian poet Mehmedinovic at the end, who use “fragmentary personal and collective experiences” (Hirsch and Smith) to explore their responses to war and memory and the role poetry can play in cultural resistance.

I begin my essay then at the location where World War 1 began. The Latinska Bridge in Sarajevo is the site of the assassination of Archduke Franz Ferdinand and his wife Sophie on the 14th June 1914 by a Bosnian-Serb named Gavrilo Princip. This event was the trigger that ignited the flames of war throughout the world and led to death and destruction on a scale never before experienced. In this site we have the perfect embodiment of these words from T.S. Eliot; Time present and time past Are both perhaps present in time future And time future contained in time past. If all time is eternally present All time is unredeemable. (“Burnt Norton”)3

These words have generally been interpreted as being an exploration of the

3 T.S. Eliot, Collected Poems 1909 – 1962 (London: Faber and Faber, 1963).

concept of predestiny4 but in relation to this site they can be seen as a way of perceiving memory. To stand at this site we not only recall the moment of the assassination but also evoke the weight of the future history that is contained in our knowledge of the moment. It is a “lieu de memoire” with far reaching associations, which reverberate through time and space, triggered by that moment and throughout the history of Europe and the twentieth century. So the memory is not just “a repetition of the physical traces of the past, it is a construction of it”5 and we redefine the memory through our knowledge of its consequences. This is what acts of cultural memory constantly do – they redefine the past as they recreate. How this spot has been remembered shows the changing focus of the impulse to commemorate the past, with a rewriting of how the participants are perceived. In 1917 a vast monument to Franz Ferdinand and Sophie as victims was erected by the Austrians in a Catholic ceremony which had little to do with the people of Sarajevo who removed it after the war. In doing so, they were identifying the monument as a symbol of an oppressive regime and reasserting the country’s freedom. For a long time remembrance focussed on Gavrilo Princip as a freedom fighter. The bridge became known as Princip’s Bridge and a monument to the Bosnian-Serb as a hero representing the spirit of defiance of oppression was erected in 1930. At a time when Austria was perceived as an enemy, it served the people of Sarajevo to identify with Princip and the location could be seen as a symbol of South Slav unity and

4 ed. Edward Lobb, Words in Time (London: The Athlone Press, 1993) p.4. and Martin Scofield, T.S. Eliot: the poems (Cambridge: Cambridge University Press, 1988) p.202. 5 John Frow, From “Toute la Memoire du Monde: Repetition and Forgetting,” Theories of Memory, p.154.


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resistance. It was removed in 1941 and a new memorial erected in 1945, which bore the imprint of footsteps in concrete, calling to mind Aristotle’s description of memory as an imprint in the mind6. The use of footsteps recalls a moment of drama imprinted with all the significance of their consequences. As the century ended and Bosnia was once again involved in conflict, ambivalence again arose as to how the site should be remembered. Serbia was now the enemy and attitudes to Princip had changed so that many saw him as a terrorist or murderer. As the city is rebuilt in the twenty first century, it has become important to mark the site again. Reinstating the original name for the bridge, Latinska Ćuprija, has been a symbolic casting off of any association with terrorism and a humble plaque simply states the facts that occurred at the site. In its simplicity it aims to remember a truth, uncontaminated by political opinion. However an act of memorialisation cannot eradicate collective memory and for now the two names still co-exist.

Another significant site of memory in Sarajevo is the monument to the partisans who successfully forced the Germans out of Yugoslavia after the Second World War. There is no ambivalence about this monument, which quite confidently fulfils the role of controlling how the partisans are remembered in the future. The site itself, on the end of a shopping street, is not of significance but it strongly represents the cultural identity of Sarajevo and its victory over attempts to eradicate it. It is also a focal point for an annual act of remembrance. Such acts, Nora argues, spring out of a sense that “there is no spontaneous memory, that we must deliberately create archives, maintain

6 Aristotle, “De Memoria et Reminiscentia,” Theories of Memory, p.30.

anniversaries, organise celebrations”7 but to a certain extent this statement is contradictory, as while the monument ensures that memory endures, such celebrations are organised because such a memory exists. After the First World War, the kingdom of Yugoslavia unified Serbia, Croatia, Bosnia and Herzegovina and it was this unity that was threatened after Hitler invaded. The partisan groups that put up a strong resistance are remembered in a stone monument with a stirring inscription to freedom beneath which burns an eternal flame. Nietzsche uses the word “monumental” to describe a version of history calling itself permanent and everlasting,8 and certainly the use of the word “eternal” aims to give a permanent status to the memorial. This memorial celebrates the “bravery and spilled blood” of those who liberated the city and seeks to give them immortality through remembrance. By listing the names of countries rather than individuals it also unifies the region again within the context of the city and demonstrates pride in diversity, tolerance, bravery and resistance. The eternal flame symbolises hope and the partisan spirit, which has become a proud legacy in Bosnia. Modern graffiti still remembers the partisans as folk heroes and acts of defiance in war are attributed to a need to pay tribute to and keep alive the partisan spirit. (In Sarajevo Roses the author describes a defiant doctor disregarding orders to save lives calling himself a partisan. In this we can see how the partisan spirit is something more than just words and identity, but is a reality translated into action.9) During the 7 Pierre Nora, From “Between Memory and History: Les Lieux de Memoire,” Theories of Memory, p.149. 8 Friedrich Nietzsche, The Use and Abuse of History, trans. Adrian Collins (New York, 1985) p.14-17. 9 Anne Marie du Preez Bezdrob, Sarajevo Roses (Cape Town: Oshun Books, 2004) p.159.


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Bosnian conflict of the nineties the eternal flame was temporarily extinguished which seemed to symbolise the way in which a war can alter the flow of memory.10 I will return to this idea in discussion of the poetry of Mehmedinovic. Pierre Nora describes Lieux de memoire as “sites where memory crystallises and secretes itself.”11 This can be understood to refer to a temporal as well as physical space. The “Sarajevo Rose” is a lieu de memoire that occupies a physical site in remembrance of the city’s war dead but also crystallises the moment of their destruction. After the Bosnian conflict of the 1990s hundreds of these sites of memory were created around the city to mark the site of significant loss of life or the striking of a building of particular significance. It was created by infilling with red resin a scar on the city from the impact of a shell explosion, to represent the petals of a flower. It more poignantly resembles a dramatic spilling of blood. Like Auschwitz or Ground Zero, these sites of memory were created out of an act of violence rather than being a displaced memorial or addition to a site erected later in remembrance. As such it has a very different impact. If memory can be seen as an imprint in the body of a former sense image,12 then a Sarajevo Rose can be seen as an imprint in the city’s consciousness of a former image of destruction. Like an imprint in the mind, it will co-exist amongst everyday trivialities and be gradually eroded by the common place, and eventually disappear with collective memory.

Unlike war memorials erected after war in concrete, marble or stone, this memorial retains a trace of the trauma of the moment

10 Maurice Halbwachs, From “The Collective Memory,” Theories of Memory, p. 142. 11 Nora, Theories of Memory, p.144. 12 Aristotle, Theories of Memory, p. 30.

of death. Its impact is therefore more powerful in causing us to recollect the suffering of the victim. Yet unlike a traditional war memorial, its victims are nameless so we are caused to question what function it serves. It is a memorial that people will walk over and pass by as they go about their daily lives, an unexpected reminder that this is a city that has been scarred, as its people have scars on their souls. It marks a point of departure from this life. Like the bunches of flowers sometimes seen at the side of a road where a road traffic accident has occurred, it acts as a reproach to survivors from the bereaved who want to know how life can go on regardless of their sorrow, a reminder to the rest of the world that they are still suffering. It tells us that death can occur on ordinary streets as people queue for bread, go shopping or go to church. Like the roses in Eliot’s “Burnt Norton” they have “the look of flowers that are looked at,”13 which is surely what all memorials demand.

The Sarajevo Rose also plays a part in Cultural Memory, also defined by Hirsch and Smith as an act in the present by which individuals and groups constitute their identities by recalling a shared past.14 This is perhaps the other function of the Sarajevo Rose – it unites the people of the city in their suffering and remembrance and reminds them that this was an act inflicted on the city by a common enemy. On a visit to Sarajevo, I photographed a Sarajevo Rose next to the shell-damaged cathedral, but our guide was at pains to point out that it could just as easily have been the synagogue or mosque that was hit. The city’s authorities are keen to stress that this was not a religious war and that the many religious groups in Bosnia have lived in harmony alongside each other

13 T.S. Eliot, Collected Poems 1909-1962, p.190. 14 Hirsch and Smith, Theories of Memory, p. 224.


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since Ottoman days. It was a territorial war and by stressing this there is a desire to preserve that spirit of tolerance that has existed in the city. To return to a phrase from Pierre Nora, the Sarajevo Rose can be seen as a site of individual and collective remembrance of the conflict, a recreation of a “moment of history torn away from the movement of history then returned; no longer quite life, not yet death, like shells on the shore when the sea of memory has receded.”15 These poetic words of Nora recall the “murmuring shell of time” (“The Dry Salvages,” p.210) in T.S. Eliot’s “Four Quartets” where the river of life opens out to the sea as Eliot moves from an exploration of time and memory in individual experience to the wider areas of religion, culture and history. Thomas Stearns Eliot (1888-1965) was born in Missouri but lived most of his life in England and his poetry is very much European in its mood and influences. One of the most influential figures in modern poetry, the subject matter, language and structure of his work reflect disillusionment with traditional values in society and literatures. His great modernist poem, “The Wasteland” (1922) is a meditation on the emotional and spiritual wasteland of the modern city and Europe itself in the years following the First World War. By the time he wrote “Four Quartets” (1935-1942) Eliot had converted to Anglicanism and his poem shows a greater influence of religion in his exploration of man’s search for redemption.

In “East Coker” Eliot writes about the difficulty of using words to give expression to the “general mess of imprecision of feeling.” (p.203) He searches for different ways of expressing 15 Nora, Theories of Memory, p.149.

the idea that words are somehow inadequate yet necessary for recreating experiences and searching for truth. Poetry and monuments have this in common – they seek to present a perfect representation of a truth or memory but can be little more than a drawing together of fragments of individual experiences that can represent the collective experience. Eliot writes that “time is not redeemable” but then goes on to make it so with his poetry, capturing the essence of moment in a scent or sound or emotion. When Semezdin Mehmedinovic writes “This evening walk deserves a poem.” (“Essay” p.11)16 he too expresses the writer’s urge to translate an experience into a sentence and thereby redeem time. Journalist, film-maker and poet, Semezdin Mehmedinovic was born in Kiseljak, Bosnia in 1960. He came Sarajevo to study Comparative Literature and became involved in the city’s cultural scene of the 1980s. This was during the years of comparative prosperity and stability under the communist rule of Josip Tito, a period which Mehmedinovic has described as one of “urban ideology”17 At this time he saw Bosnian culture as diverse and inclusive but that there was nonetheless a sense that people felt war inevitable. He produced a radio programme called the “Wasteland” that suggests an uneasiness and discontent. During the war he saw Sarajevo as a synonym for Bosnia-Herzegovina but this was a time of great cultural productivity, during which he wrote his poetry collection “Sarajevo Blues”. He became a political refugee in 1996 when, in a fragmented Sarajevo, the physical dangers from snipers was replaced by the fear of telling the truth.

16 Semezdin Mehmedinovic, Sarajevo Blue, (San Francisco: City Lights Books, 1998). 17 Sarajevo Blues, p.110.


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In Sarajevo Blues Mehmedinovic is very conscious of his role in producing a memorial to the war in poetry. He states that we must write as if we are creating our “last words.”18 He echoes this dissatisfaction with words evoked by Eliot but goes further, expressing an anxiety that finding precision of expression is necessary to ensure that evil is not allowed to prevail; People quickly forget evil because they still haven’t created a language to describe it so the world refuses to carry the burden, preferring to forget. (p.82)

He is concerned with how words can be manipulated in order to create evil as when Radovan Karadzic, former benign acquaintance and poet, claimed that there were too many different nationalities in Bosnia that could not live together. Mehmedinovic sees Karadzic’s arguments as a manipulation of words which could be used to present the opposite argument; The ethnic mix was so deep, that any separation could only be accomplished through extreme violence and enormous bloodshed. (p. 21)

He sees how words and the world can be rendered unstable and betrayal can lead to a loss of faith in humanity. The Serb who stood for South Slav unity in 1914 now stands as a threat to that unity. Mehmedinovic sees the manipulation of the truth as frighteningly easy as the manipulation of words. And the burning of the books in Sarajevo library stands as a symbol of how words can be challenged and evil created. When he writes “I don’t think a single nation exists that wouldn’t crucify Christ” (p.23) he is not making a Christian statement but a statement on evil, that hell is not a religious concept, but exists within a human, as characterised in the figure of Radovan Karadzic emerging from the flames of a burning building.

18 Sarajevo Blues, “Introduction” p.xiv.

Mehmedinovic’s poems are a collection of impressions of life in a city under siege and his reflections on death, danger and betrayal. In writing his poems and engaging with words he is engaging in the act of collecting memories. There is a consciousness of collecting experiences in order to have something to remember, but also of living for the moment because of the tendency of war to alter the flow of collective memory.19 In the city it is as if they are living outside time and space; [I] … felt the wild desire to laugh At you Because you call this place hell And you flee from here convinced That death outside Sarajevo does not exist. (“Corpse” p.5)

Time is halted and there is just this time and this place to those living through the siege. There is a detached, emotionless tone to Mehmedinovic’s observations which he acknowledges when he writes “that’s what time did. It made the feelings connected to any memory worthless.” (“Crows” p.31) I understand this to be a consequence of that feeling of mistrust and betrayal that has challenged his understanding of feelings and threatened the city’s identity. In a city threatened with annihilation, literary production has become an act of resistance, the writer first using words to inform the outside world, but then using writing to interpret their own and the city’s experience. In his poem “A Relatively Calm Day” (p.29) he ironically uses a media cliché that detaches the individual from the collective experience. He describes seeing a young man engaged in the act of fetching water for survival being killed by shell fire. What one senses makes the greatest impact on the poet is the bloody trail left on the pavement after his body is removed. For a while, that is all that remains of the man’s history but then the trail is washed away 19 Halbwachs, Theories of Memory, p.142.


7

by the rain. Not a trace left behind. “As if nothing in the street changed, except that everyone got just a bit quieter.” His poem resists the annihilation represented by the washing away of the bloodstain and reading the poem makes one think of the Sarajevo Roses and the many moments like this that they represent. As a memorial they too resist annihilation.

Mehmedinovic’s poetry echoes many of the themes that run through Eliot’s “Four Quartets” and the image of the rose is a recurrent motif in the works of both writers. In “Burnt Norton” the rose garden symbolises a metaphysical world of life’s possibilities, doors not opened and the rose recurs through the poem as time passes – dust of the past settling on petals or salt from the river of life contaminating them. In Sarajevo Blues the roses are a connection between an innocent time of remembrance before the war and the violent disrupted times of conflict.

The first roses in Sarajevo Blues are carried by a young boy climbing Alifakovac hill to sell to people visiting graves before the war, an action that is a sign of what is to come. Later they are casually observed taped to the concrete at the roadside in “Zenica Blues;” And you see three bouquets of roses wrapped in cellophane held to the cold cement with scotch-tape. Look, that won’t last long, I say, just to make small talk. And she nods. As if she knows. (p.101)

He does not say what she knows. Is it the tragedy of what is happening to the city, is it the impermanence of the tribute, or is it the inappropriateness of his casual comment, of words at a moment like this? Is it that she knows words can never be enough but that is all we can use to stop the silence from becoming too unbearable? He, as a poet however reveals his impulse to fill the silence with words, give testimony to the moment that preceded it

and thereby create a memorial to that moment. In this collection of writings Mehmedinovic creates an impression of a people living under great danger that still attend plays, art exhibitions, take photographs and listen to music, not just in the spirit of defiance, to show that life still goes on despite the terror that is erupting around them, but also out of the necessity in times of trauma to dwell in the moment. The creative impulse enables the individual to do this while creating testimony to the experience and defining the cultural identity of Sarajevo and Bosnia. The essence of this cultural identity can be summed up by returning to the phrase “partisan spirit” - a city and people that stands against betrayal and terror, displays the strength of a small nation under assault and is a city of tolerance and diversity. Since the end of the Second World War we have become used to living in a world that stresses the importance of remembrance, of learning from history so that we do not repeat its mistakes. Sites such as Auschwitz emphasise their existence in such a role – the first words you encounter at the museum urge this. The sites of memory and acts of memory I have considered do more than that – they help create the identity of a city as they create a narrative of the past, and Sarajevo is a city that is good at remembering.

However after a time of crisis it is inevitable that there will be those who feel that it is too soon and too unproductive to be focussing on the past. As a BBC article argued in 2001, “there are those who say that the Balkan obsession with history is largely responsible for Bosnia’s current troubles and that Bosnia needs to learn to forget.20 This view would perhaps be 20 Alex Kroeger, Sarajevo reinstalls memorial to the past, June 2001, BBC World Service Website.


8

echoed by Nietzsche who stated that “there is a degree of rumination, of the historical sense, which is harmful and ultimately fatal to the living thing, be it a man or a people or a culture.”21 In this the past becomes a “dark, invisible burden” carried into the future. It is easy to understand how this could be applied to individual traumas and the need to move on from remembering and dwelling on pain, but less easy to conceive of how forgetting can benefit a nation. Nietzsche creates an ideal vision of forgetting whose aim is to achieve happiness to be able to stand “balanced like a goddess of victory,”22 which is surely what most people would aspire to at the end of a war. He sounds a warning note that some people forget too easily and there is the potential for the pursuit of such a state overbalancing into immorality – “there are those who are so little affected by the worst and most dreadful disasters and even by their own wicked acts, that they are able to feel tolerably well and be in possession of a clear conscience even in the midst of them.”23 This conjures up the image described by Mehmedinovic of Radovan Karadzic emerging from a burning building alongside images of refugees being expelled from their homes, all that they possess carried in a plastic bag. The assertion that the need to forget is necessary “for the health of an individual, of a people and of a culture”24 begins to focus on the role of memory as a bridge between self and history.

The view of Marx of the “traditions of dead generations being a nightmare on the

21 Friedrich Nietzsche, From “The Uses and Disadvantages of History for Life,” Theories of Memory, p.104. 22 Nietzsche, Theories of Memory, p.103. 23 Nietzsche, Theories of Memory, p.104. 24 Nietzsche, Theories of Memory, p.104.

minds of the living”25 does however begin to make sense when reviewing the history of memorialisation in Sarajevo. The changing attitude to whom and what is remembered, serves as a symbol of the repeating pattern of unification and rupture that has brought conflict to the region. The presence of the Sarajevo Roses on official city tours is perhaps important at such a short span of history on from the conflict, but it does raise the possibility that a city may become locked in remembrance of pain. While this can create a sense of unity it can encourage a continued suspicion of a common enemy. I would not however agree with Young who suggests that the existence of a physical site of memorialisation could lead to less contemplation of the past26 as it is surely more likely that without a physical trace we risk annihilation.

Mumford feels that monuments “defy the very essence of modern, urban civilisation: the capacity for renewal and rejuvenation.”27 It is easy to sympathise with his sentiment that renewal and rejuvenation are what a city needs to look into the future, but to suggest that forgetting will make one more able to do so is too simplistic. Perhaps the most effective memorial to Sarajevo’s past lies in the buildings which were damaged or destroyed and now await rebuilding, most potently symbolic of which is the burnt out façade of the library building. As Eliot wrote in “Four Quartets;” Houses rise and fall, crumble, are extended, Are removed, destroyed, restored or in their place Is an open field, or a factory, or a by-pass. Old stone to new building, old timber to new fires…

25 Karl Marx, From “The Eighteenth Brumaire of Louis Bonaparte,” Theories of Memory, p.97. 26 James E. Young: From “The Texture of Memory: Holocaust Memorials and Meaning,” Theories of Memory, p.181. 27 Ibid, p. 180.


9

Houses live and die: there is a time for building And a time for living and generation. (p.196) This gives a picture of a city as a living organism, changing, decaying, evolving and regenerating itself.

Since the signing of the Dayton Peace Agreement in 1995 there has been a clear desire that an essential part of the rebuilding will involve the reconstruction of the identity of Sarajevo as a centre of diversity and tolerance. This intention was inscribed into the agreement - “a state of tolerance is the inestimable heritage of our past and the sure foundation of a peaceful and happy future.”28 Speak to the people who live and work in Sarajevo and take an official tour of the city and this sentiment will be echoed. The extent to which this is a challenge is evident by the fact that even in 2005 the International Community’s High Representative was still speaking of Bosnia not being ready for “reconciliation but ready for truth.”29 The pursuit of justice for the perpetrators of war crimes goes on. There is however an optimism, new buildings are being constructed and new ones restored, foreign investment and tourists are returning to the heart of the city and Mehmedinovic would perhaps feel a fulfilling of his promise of “a law of equilibrium which will restore a mix of cultures to the whole.” The arrest in 2008 of Radovan Karadzic would seem to offer a glimmer of hope that reconciliation is not an impossible dream for the future.

Though the words of Sarajevo’s past contained in the library have been burnt to cinders and blown away on the wind, it still stands as symbol of how new life can grow out of the ashes. The most effective way of ensuring that the cultural identity of the people of Sarajevo is remembered

28 The Dayton Peace Agreement, Ohio, November 1995. 29 Ed Vuillamy, “Farewell, Sarajevo” The Guardian, 2 November, 2005.

and preserved is to rebuild its past and refill the library with new words for the future.


11

The Implementation of the Employment Framework Directive in Germany

Stephie Fehr,

University of Manchester Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation (the ‘Employment Framework Directive’) covers within its scope anti-discrimination measures related to the grounds of religion or belief, disability, age and sexual orientation. The deadline for its transposition into national law was 2 December 2003. Following action for non-implementation taken against Germany by the EU Commission in February 2005, the country’s then newly elected parliament issued the Allgemeines Gleichbehandlungsgesetz in 2006, thus being one of the last Member States to transpose the Directive.

The subsequent paper will illustrate the discussion surrounding the drafts, as well as the main features surrounding this new German statute with particular emphasis on those areas of law, which experienced significant new developments in order to establish the impact of the Directive in this jurisdiction. In addition, the main strengths and weaknesses of the German act will be exposed and assessed in view of their compatibility with the Employment Framework Directive. It will be concluded that although the German parliament did not follow the approach of transposing merely the necessary minimum, it has nevertheless misread parts of the Directive with the consequence of single provisions being potentially incompatible with EC law.

Introduction* Following the 2nd World War German employment law has been characterised by a unique presence and significance of case law enhancing employees’ rights, to an extent otherwise unknown to the country’s civil law system. For instance, the Federal Employment Court maintains that there is a general principle of equal treatment that all employers must adhere to. Although this is based on the equality principle enshrined in Article 3 of the German Constitution, which is per se only enforceable against the state, as a consequence of this particular jurisprudence, this duty is extended to all employers to the advantage of their employees. Consequently, German * A preliminary version of this article was presented at the International Graduate Legal Research Conference, hosted by King’s College, in London, 12-13 April 2007. The author would like to thank Nuno Ferreira, Brian Bercusson and the anonymous reviewer for their helpful and constructive comments on previous drafts.

employees enjoy a wider scope of protection against discrimination than the statutory law actually implies. However, as a country foremost familiar with statutes, these certainly have a strong impact on the public being familiar with rules. Therefore, it can be argued that the legal instruments passed by the European Community concerning employees’ rights have added certainty and publicity to the corresponding German law.

Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation (Employment Framework Directive) is one of the first and major instruments aiming to give effect to Article 13 EC, the provision containing the entitlement of the EU institutions to diminish discrimination based on various grounds. Within its scope the Employment Framework Directive1

1 OJ-L 303/16, hereafter: the Framework Directive or the Directive.


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covers anti-discrimination measures related to the grounds of religion or belief, disability, age and sexual orientation. The deadline for its implementation into national law was 2 December 2003. At that point the German parliament had merely produced a draft act and this not until considerably after this deadline. Following action for non-implementation taken against Germany by the EU Commission in February 2005, the state’s new government finally produced the Equal Treatment Act (Allgemeines Gleichbehandlungsgesetz2) in 2006, thus being one of the last Member States to transpose the Directive. However, contemplating the criticism that arose during the drafting process, the resulting new Act may well be an achievement beyond initial expectation. This paper will highlight the main features surrounding the German Equal Treatment Act with particular emphasis on those areas of law that experienced significant new developments and clarification in order to establish the impact of the Framework Directive in this jurisdiction. In addition, the main strengths and weaknesses of the German Act will be exposed and examined as regards their compatibility with the Directive. It will be concluded that although the German parliament did not follow the approach of transposing merely the necessary minimum taken by several other Member States, it nevertheless ignored parts of the Directive with the consequence of the Equal Treatment Act now containing single provisions potentially incompatible with EC law.

The Employment Framework Directive EU equality law and policy were once silent concerning discrimination in 2 Literally: General Equal Treatment Act.

employment on grounds other than sex, notwithstanding the member states’ considerable diversity and experience in other fields of discrimination. The reason for this may be the immense potential for disagreement between the member states, and within the member states, relating to matters such as religious or age discrimination. Adding Article 13 EC and the subsequent directives have altered this initial picture significantly, forming a vital step to improve equality in the EU. Despite the Employment Framework Directive on the face of it being disappointing in that it confines itself to limited aspects of life and contains a range of exceptions, it is nevertheless a major attempt towards improving the chance for equal opportunities within the EU workforce and the first attempt to regulate this on the basis of religion, age and sexual orientation. As a consequence and in the light of the required unanimity for instruments issued under Article 13 EC, the Framework Directive could even be regarded as a success.

Equal treatment in employment under German law Prior to the implementation of the Directive, rules relevant to discrimination in general were mainly to be found within the German Constitution.3 Since this instrument explicitly binds public bodies, it is foremost the public sector employees who can rely on its provisions. For all other employees its relevance was far more unpredictable as will be shown. Nevertheless the constitutional protection reflects a deep commitment followed since its inception in 1949. A general principle of non-discrimination on the basis of selected grounds is enshrined in Article 3 and thereby towards the beginning of the 3 Grundgesetz of 8 May 1949.


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Constitution, a position, which reflects it significance. However, the grounds listed on the basis of which discrimination is deemed unlawful do not correspond directly to the ones envisaged worthy of need of protection by the EU. Article 3(1) of the German constitution provides that all people are equal before the law. This means that state administration and the courts are under an obligation to treat everyone equally when applying the law, and that acts of parliament need to be compatible with this rule.4 Providing further detail, Article 3(3) prescribes that no person shall be favoured or disfavoured because of their sex, parentage, race, language, homeland and origin, belief or religion or political opinion. Unlike Article 13 EC and the Directive, Article 3 does not cover equal treatment regardless of a person’s age or sexual orientation. Whereas age discrimination as a legal problem is a recent addition to most jurisdictions it is however surprising that sexual orientation was not considered explicitly in the German Constitution, considering the persecution experienced by homosexuals during the Third Reich period. Nevertheless the general nature of Article 3(1) allows for protection against any unequal treatment so that this should not be a practical concern. Article 3(3)(2) contains a specific prohibition of disability discrimination only if the conduct is to the person’s disadvantage, in this way expressly allowing for positive measures. Justification of conduct under Article 3 depends on the individual case and is not mentioned in the provision. Clarifying this aspect, the Federal Constitutional Court held in its first ruling on Article 3 that legal or factual inequality in treatment is justified, where there is an obvious objective reason for differentiating.5 This

4 BVerfGE 1, 14 (42). 5 BVerfGE 1, 14 (52).

wide discretion was subsequently narrowed down, the Court stating that Article 3 is violated if a group of persons is treated differently to another group, despite there being no differences between them of a type and weight that the differentiation can be justified,6 thus closing the gap to the proportionality test applied to constitutional freedoms.7 In any case the lack of express mention does not allow for justification unless in the case of collision with other constitutional law. Article 33 of the constitution includes some specific rules on public sector employment, offering equal access to public service positions, the allocation of positions in line with suitability, ability and objective performance as well as the independence of these rights from belief and denomination. Although access is a wide concept that encompasses entry and promotion, the provision is only available to Germans and is in this way limited. The component concerned with belief and denomination duplicates Article 3(3)(1) of the constitution and therefore is lex specialis. Justification can be sought in the same way as for Article 3.8 The lack of further specific statutory law leaves those employed in the private sector with the overriding principle of equal treatment in employment, which is a generally accepted feature. This rule simply lays down that employers may not treat one or some employees of theirs worse than others, thus it is an immensely vague concept that needs further clarification to be an effective tool. Any unequal treatment can be justified if there

6 BVerfGE 55, 72 (88). 7 Epping V, Grundrechte, 1st ed., (Berlin/Heidelberg: Springer-Verlag, 2004), at p.287. 8 Jarass HD, in: Jarass/Pieroth, Kommentar zum Grundgesetz, Art.3 Rn.16.


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are objective reasons.9 Even more confusing, there is a debate on the origin and the understanding of the principle, which raises further questions. Some think the rule has evolved from the constitutional rule of equality.10 According to Lieb11 this principle has to be seen strictly outside the constitutional context and is based solely on the general principle of justice, whereas the Federal Employment Court considers it to be a private law principle, the content of which is formed by the constitutional equality principle.12 From a practical perspective, this debate has minor relevance, as it is at least unquestioned that the equality rule constitutes a basis for employees’ claims in court. Common ground is found in that the employer has to apply the equality principle to all his/her collectively applicable conduct.13 In contrast, within the individual sphere outside the legally confined employment framework the principle of contractual freedom prevails so that negotiations can take into account personal circumstances of a particular employee.14

In view of the exact scope there is another discussion on whether the principle should apply to entire companies15 or only to entities within an undertaking having a potential to create feelings of unjustified unequal treatment.16 Arguably reflecting the lack of knowledge surrounding the scope of the equal treatment principle, German employees have so far hardly made claims arguing a violation of this 9 Hewson C, in: Du Feu/Edmunds/Gillow/Hopkins, EU & International Employment Law: Germany, (Bristol: Jordans, 2005), chapter 6.1, p.60D. 10 Ibid. 11 Lieb M, Arbeitsrecht, 8th ed., (Heidelberg: C.F. Müller, 2003), p.34. 12 BAG NZA 1993, 215, at p.216. 13 Ibid., p.217. 14 See fn.11, p.35. 15 BAG NZA 1999, 606. 16 Ibid.

principle, most of the rare occasions being job applicants allegedly rejected because of their sex.17

Due to the fact that there had been no public supervisory body for equality in Germany or within workplaces, the observance of the equal treatment principle used to be in part a task fulfilled by works councils. Under the Works Constitutional Act 1972 (amended 200118), employer and works councils have to safeguard that all employees are treated according to the principles of law and fairness, in particular equal treatment due to employees’ decent, religion, nationality, origin, political or trade union activity, position, sex and sexual identity. They also have to ensure that employees are not disadvantaged because of passing certain age limits.19 Going even further, employer and works council have to protect and promote the free development of personality of the employees in the workplace.20 This provides another potential pathway for employees to argue their discrimination case. As far as the grounds for discrimination go, the ambit provided by the Works Constitutional Act is even broader than the one of the Constitution.

Whereas this could be a sign that there is will to embrace the Directive - specifically the addition of the grounds of age and sexual orientation, which fail to appear in the constitution - this should not cover the fact that enforcement is severely limited. Every employee has the right to complain to the competent authority in the workplace if s/he feels disadvantaged or treated unfairly or otherwise restricted by the employer or by employees. Support and mediation facilities are available from

17 See fn.9, at p.60F. 18 Betriebsverfassungsgesetz (BetrVG), BGBl. I 1972, 13 (last amended 18 May 2004). 19 Section 75(1) BetrVG. 20 Section 75(2) BetrVG.


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the works council21 and no disadvantage may arise for the employee filing a complaint.22 Again, this appears to provide far-reaching employee rights, however section 84(2) of the Works Constitutional Act stipulates that the employer has to comment on the complaint in writing, but only if s/he deems the complaint justified, remedial action needs to be taken. Leaving it for the employer to decide rather than to a more impartial or democratic body such as a works council, may significantly lower the chance of successful complaints.

Finally, constitutional rights are only available for claims against emanations of the state, which is a constant interpretation23 that used to be occasionally questioned by the Federal Employment Court.24 Nevertheless scholars and courts agree that constitutional rights are not directly applicable to the law dealing with private persons, however there is a well established concept of indirect effect,25 due to the fact that constitutional rights not only protect individuals, but also reflect objective values that cannot be disregarded when creating and enforcing private law.26 For instance, the interpretation of private law in court needs to be performed with due regard to the spirit of the Constitution.27 How exactly this is to take effect in the courts, is one of the most debated issues in German constitutional law.

Article 3 of the Constitution, as well as the employment law principle of equal treatment mirror a tradition of equal treatment as a manifested principle of

21 Section 84(1) BetrVG. 22 Section 84(3) BetrVG. 23 See fn.7, p.119. 24 BAGE 1, 185 (193) and 7, 256 (260). 25 mittelbare Drittwirkung, see Epping fn.7 supra, pp.120-122. 26 BVerfGE 6, 32 (40). 27 BVerfGE 7, 198 (205f.).

German law and in society.28 Nollert-Borasio and Perreng point out that despite the consensus as regards this topic, discrimination exists in the various areas of law and life, which necessitated additional legislation, not only for the purpose of transposing the Framework Directive, but also in order to create rules capable of improving reality in a way that reflects the already existing political commitment, as well as in order to increase people’s consciousness.29

Drafting the Anti-Discrimination Act The first draft30 aiming to give effect to the Directive was disseminated at the end of 2004 and had thereby already failed to meet the implementation deadline date of 3 December 2003 significantly. This delay had been caused by an absence of consensus as regards the shape and content of the transposing law.31 By virtue of the German parliament’s inactivity, an infringement procedure for non-implementation of the Framework Directive was initiated by the European Commission against Germany,32 with the result of a European Court of Justice’s ruling confirming of non-transposition.33 Despite the threat of unlimited fines under Article 228(2) EC several more months were to pass before any actual legislative results occurred, not only because of the controversy surrounding the content of the new law, but also due to the unexpected change in government during the second

28 Nollert-Borasio C/Perreng M, Allgemeines Gleichbehandlungsgesetz (AGG) Basiskommentar zu den arbeitsrechtlichen Regelungen, (Frankfurt am Main: Bund-Verlag, 2006), p.5. 29 Ibid. 30 ADG-E, Bundestags-Drucksache 15/4538. 31 Details of the underlying debates will be illustrated below. 32 OJ-C 82, 15 (2 April 2005). 33 C-43/05, judgment of 23 February 2006.


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half of 2005, which required the draft to be discussed again. The 2004 draft of an Anti-Discrimination Act34 was based on preliminary work of the competent ministries and was amended considerably after the executive committee dealing with the procedure conducted a public hearing in March 2005.35 The Ministry of Justice informed that many areas of law were affected by discrimination, however that a literal transposition of the directives in the field of employment was seen as particularly desirable and would result in major changes.36 In more general terms the Ministry stressed that the background of European legislation in this matter reflects the fact that the EU is not only an economical community, but also a community of values. Linking the two aspects, they added that it is proven to be economically more effective to integrate disadvantaged groups as far as is possible.37 Due to this importance and for practical reasons the government had decided to implement the four directives38 through a single instrument, dealing with employment, civil law, social law and civil service law. The relevant European directives were regarded as complicated and in need of transformation into clear and simplified rules.39 Since the emphasis of the directives is on employment and occupation, it was the legislator’s intention to codify a prohibition of discrimination on the basis of all grounds listed in Article

34 At this stage the Act’s name literally translated into Anti-Discrimination Act. 35 Infopapier zum Entwurf für ein Antidiskriminierungsgesetz, Bundesministerium der Justiz, Berlin, 18 March 2005. 36 Ibid., p.1. 37 Ibid. 38 Race Directive 2000/43/EC, Employment Framework Directive 2000/78/EC, as well as the Equal Treatment Directives 2002/73/EC and 2004/113/EC. 39 Ibid.

13 EC40, not only those of the Employment Framework Directive.41 After the public hearing it was realised that extreme changes were inevitable in order to construct a publicly acceptable statute. Several of the proposed changes related to employment. Some of the most significant points raised and accordingly amended were an exclusion vicarious liability of the employer unless s/he has managerial responsibility, the reduction of the unlimited period for financial loss to six months,42 a diminution of the upper limit of damages to three months’ wages, in cases where the claimant would not have been accepted for the post, granting churches the right to choose employees according to their religion, if this was justifiable; more exceptions were added to allow for age discrimination for the purpose of protection from dismissal and social plans,43 personal contracts were excluded as well as criminal sanctions, as these were not demanded by the Directive and finally, a right to conclude contracts after having been discriminated against was added, if the workplace is still available.44 Similarly, further concessions and additions were agreed to as regards private law.45 Under this draft, age, disability, sexual orientation and religious discrimination enjoyed the same level of attention as discrimination based on sex or race, due to the fact that its concepts applied equally to all reasons mentioned in the four directives. In this and in other ways the draft act went beyond the requirements of the directives. For instance, it offered

40 Sex, race or ethnic origin, religion or belief, age, disability, and sexual identity. 41 See fn.34 supra, p.3. 42 The possibility of extending the period by means of collective agreements was still granted. 43 See fn.34 supra, at p.4. 44 Fn.34 supra, p.5. 45 See fn.34, pp.6-7.


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employees a complaint mechanism46 and a right to refuse to work in case of discriminatory conduct having taken place.47 It also furthered existing discrimination law by abolishing the upper limit for compensation payments, as was previously known for sex discrimination cases,48 if applicants were rejected because of a characteristic covered by the directives.49 Another point in which the draft affords more protection for employees is that it enabled works councils and trade unions to sue the employer independently on behalf of the employee.50 Thus it can be said that this proposed piece of legislation combined the requirements set by the directives with additional features typical to the German legal system, this resulting in considerable, coherent and comprehensive protection for employees. Another fact that mirrors the idea of a local adaptation, is that no use of the word discrimination was made and that it was instead replaced by the term disadvantage, the reason for this being that discrimination in the common sense of the word is always non-justifiable behaviour.

Plenty of concerns were raised, mainly focussing on the generosity of the draft code’s offers. Some observers complained that it would deter businesses from establishing themselves in Germany although they admitted that the draft did not contain all “instruments of torture” that the directives requested.51 Bauer, Thüsing

46 Section 13 ADG-E. 47 Section 14 ADG-E. 48 This was the case for challenges based on Section 611a BGB. 49 Section 15 ADG-E. 50 Section 24 ADG-E. 51 v. Steinau-Steinrück R/Schneider V/Wagner T, “Der Entwurf eines Antidiskriminierungsgesetzes: Ein Beitrag zur Kultur der Antidiskriminierung?”, (2005) 22 NZA 28, p.32; this and the subsequent sentence display a literal translation of three terms used by the respective authors, with the intention of highlighting the polemic language chosen.

and Schunder argued that there would be obvious abuse of the provisions in case of redundancies as a “weapon” used in the “compensation poker” well-known to the Anglo-American system, but alien to the German one.52 Scholars continued that the rules contained were inefficient and seemingly based on ethical rather than economical reasons, whereas it is suggested that the price to be paid by the economy would be so high that the threat to the materialistic existence of all citizens and thus their dignity is so severe, that this in itself is a moral reason to reject the draft.53 Apart from the inappropriate language used by the above scholars they seem to be over-cautious about the economical impact entailed by the future implementation of the directives. Even if the final act had looked different from this draft, there is no question as to its basic content as laid down by the directives. There is most of all no indication as to why the German courts would adopt a different compensation culture than so far or as to the accusation that employees will take advantage. On the contrary, none of the experts consulted prior to composing the 2004 draft were able to confirm fears of floods of claims to be caused by the envisaged legislation. These and other US-American conditions in anti-discrimination law were seen to be impossible, simply due to the fact that punitive damages common to the US system are inapplicable in Germany.54 In contrast to the US, the German system is not based on private punishment, but on balancing out the damage. Compensation claims in an employment context have the aim to make

52 Bauer J-H/Thüsing G/Schunder A, “Entwurf eines Gesetzes zur Umsetzung europäischer Antidiskriminierungsrichtlinien“, (2005) 22 NZA 32, p.36. 53 Ibid. 54 See fn.34, p.8.


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up for loss of income and for having degraded a person within clear limits.55 In the end, the 2004 draft neither found favour in the reading in the Bundesrat,56 nor was its development prioritised, at the point when a new government was formed in summer 2005 following general elections, which resulted in a move from Social-Democrat to Christian-Democrat leadership. Discussions on the transposition of the Framework Directive were revived in 2006, this time with the outcome of a new draft statute that was reluctantly accepted by the Bundesrat.57 Considering the amount and intensity of criticism related to economical implications of the draft code, it is not surprising that the current parliamentarians drew less generous conclusions on how to implement the Directive.

The 2006 Equal Treatment Act On 29 June 2006 the Equal Treatment Act58 was passed and entered into force on 18 August of the same year. The ensuing overview of its provisions will reveal some aspects in which the Act exceeds, but also several in which it may fall short of the Directive’s demands. For the same reasons as its predecessor the Christian-Democrat government opted for a single act to unite and give effect to all relevant directives waiting to be implemented. Amongst the changes was the decision to rename the instrument from Anti-Discrimination Act to Equal Treatment Act. This move was qualified as being a clever decision59 possibly due to the radical connotation attached to the word “anti” and the 55 Ibid. 56 Federal Council = representation of the Länder. 57 Bundesrats-Drucksache 466/06. 58 Hereafter the Act. 59 Düwell J, “Arbeitsrecht”, juris Praxis-Report 2006, Sonderausgabe zum Allgemeinen Gleichbehandlungsgesetz, p.2.

corresponding stigma entailed. The new Act is divided into seven parts all of which - except for Part 3 on discrimination in private law relations - originate inter alia from rules of the Framework Directive.

Part 1 contains general provisions detailing the scope of application and the terminology used in the Act. Explaining the overall aims of the Act, Section 1 informs that the purpose of the Act is to remove or prevent discrimination on grounds of race or ethnic origin, sex, religion or worldview, disability, age or sexual identity. Instead of the notion of belief as is found in the Directive, the Act applies the expression worldview. In effect this can be regarded as the same since the undisputed definition of worldview is held to be teachings without a link to religious denomination seeking to understand universal values and to establish and evaluate the position of the human being in the universe.60 According to the explanatory notes of the original draft, sexual orientation does not only include homosexuality, heterosexuality and bisexuality, but also the protection of trans- and inter-gender persons.61 Excluded are solely conditions which are of a medical nature so that initial fears that paedophiles would be protected by the Act were eradicated.62 Section 2 compiles the Act’s field of application and mentions that existing rules on discrimination continue to operate, meaning that Article 3 of the Constitution, the employment law principle of equal treatment and several other provisions63 will coexist with the Act. Section 2(4) excludes dismissals from the scope of the Act, stating that the

60 Fn.28 supra, p.50. 61 Bundestags-Drucksache16/1780 p.31. 62 See fn.28, at p.56. 63 For instance, Section 4 TzBfG, Section 81(2) SGB IX and Section 75 BetrVG.


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already existent rules on dismissals will continue to apply without amendments. This part of the section is inapplicable due to the fact that Article 3 of the Directive clearly demands prohibiting discrimination relating to circumstances of employment and occupation inclusive of conditions of dismissal.64 Not only is Section 2(4) contrary to the Directive, it also contradicts Section 2(1) No.2 which deems conditions of dismissals to fall under the protection offered by the Act. In addition the European Court of Justice confirmed that the prohibition of discrimination extends to dismissals.65 With regard to sex and disability discrimination German law already included protection rules for dismissals, an impairment of which is prohibited by authority of Article 8(2) of the Directive. In cases where national law collides with EC Law the latter takes precedence,66 so that technically courts should not apply Section 2(4) of the Act. In cases where a court would nevertheless deny protection under the Act due to the subject matter being a dismissal, the person claiming the violation would have to rely on compensation on the basis of non-implementation of the Framework Directive in this respect.67 Steinkühler opts for another solution, proposing that Section 2(4) does not need to be viewed as contradicting EC law, since the provision can be interpreted in line with the Directive.68 This can be achieved in his opinion, since discriminatory dismissals are invalid according to Sections 134 and

64 Fn.28, at p.68. 65 ECJ 11/07/2006, C-13/05. 66 ECJ 22/04/1997, C-180/95. 67 As was established in Francovich, ECJ 19/11/1991, C-6/90 and C-9/90. 68 Steinkühler B, Allgemeines Gleichbehandlungsgesetz (Berlin: Erich Schmidt Verlag, 2007), p.88.

242 of the Civil Code.69 Even though such a construction is likely to evolve in practice, a correction of Section 4(2) would be reasonable for the purpose of clarity.

The decision to exclude dismissals was taken shortly before formal enactment and is believed to be a result of fears expressed by business representatives that the Act would otherwise negatively impact on the economy. These worries nevertheless cannot be confirmed when regarding experience made in other Member States, which had at the time transposed the Directive already.70

Corresponding to Article 2(2)-(4) of the Directive Section 3 clarifies the terms of direct and indirect discrimination, harassment and instructing to discriminate as being different types of discrimination. The Equal Treatment Act uses the word ‘disadvantage’ rather than ‘discrimination’. This was again a conscious choice of the legislator due to the fact that discrimination in its common use implies illegal and socially condemned, disadvantaged treatment, which would in itself exclude the possibility of justification.71 It is pointed out that whereas this reasoning is suitable for direct discrimination it fails in cases of indirect discrimination the legal definition of which demands legitimate conduct.72 As a consequence “discrimination” and “disadvantage” are necessarily to be seen as the same.73 Direct and indirect discrimination thereby receive the first ever statutory mention in Germany and are defined more broadly

69 Ibid, referring to BAG, NJW 1995, 275. These provisions contain rules of invalidity due to indecency and good faith respectively. 70 Fn.28 supra, p.6. 71 Bundestags-Drucksache 16/1780, p.30. 72 See fn.28, p.76. 73 Fn.28, at p.77.


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than in previous case law in that direct discrimination can now be based on a comparison with a hypothetical comparator and that no more statistical evidence is required to prove indirect discrimination.74 As regards harassment the main question remains where the limits of legal relevance of conduct are and thus there is no improvement compared to prior to the Act. Whereas the wording of Section 3(5) dealing with the instruction to discriminate is clear, the explanatory notes are confusing. These state that in order to be subsumed under this provision, the instruction needs to be intentional.75 The effect of this comment is questionable since it is not unlikely that indirect discrimination may occur as a side effect of an instruction and because the requirement of an intention or even the need to prove it cannot be concluded from the statutory text.76 On a more positive note the mere possibility of discrimination as a result of the instruction is sufficient so that pre-emptive action is possible.

Section 4 rules that in cases of multiple discrimination justification needs to be found for each ground in order to defend conduct. Furthermore Section 5 makes way for positive measures preventing or balancing out existing disadvantages, thus being the counterpart of Article 7 of the Directive, under the prerequisite of being suitable and proportionate in consideration of all parties’ positions.77 In this the Act reaches further than Article 3 of the Constitution, which only caters for positive measures with regard to rectifying inequalities based on sex and disability. As is stated in the explanatory notes, the intention of parliament in this regard is not only to even out existing disadvantages but

74 See fn.28, pp.78 and 81. 75 Bundestags-Drucksache 16/1780, p.33. 76 See fn.28, at p.90. 77 Fn.28 supra, p.94.

also to prevent future inequality.78 Cases where the employer does not fulfil his/her duty to accommodate disabled persons as set out by Article 5 of the Directive are not seen as positive measures, but as direct discrimination by way of omitting conduct.79

Concerning Part 2 on Occupation80 the legislator intended to effectively handle disadvantages in this area of life and expects individual efforts to create a discrimination-free environment, which it categorises as a matter of economic sense.81 The central tenets of Part 2 are specific compensation rules attempting to link the EC Directives to the German law of tort.82 First of all, Section 6 lines out the Part’s personal scope, namely who is in occupation and who is an employer. Occupation is used as a wide generic term to prevent problems related to the fact that the notion of employee has differing meanings under German statutes.83 Listed are employees, trainees,84 those similar to employees with the example of home workers, job applicants, agency workers and those whose employment contract has ceased Concerning access to employment and promotion Section 6(3) includes self-employed and executive board members into the Act’s scope.

Section 7(1) contains a prohibition of discrimination regardless of whether it is based on real or presumed existence of determining characteristics. Effectively this imposes an absolute duty not to

78 Bundestags-Drucksache 16/1780, p.34. 79 Schiek D, “Gleichbehandlungsrichtlinien der EU – Umsetzung im deutschen Arbeitsrecht”, 21 NZA (2004), 870 (875). 80 The German term ‘occupation’ includes the notion employment. 81 Bundestags-Drucksache 16/1780, p.25. 82 See fn.28 supra, p.43. 83 Fn.28 supra, p.96. 84 Trainees are defined by Section 1(1) BBiG and include internees and certain volunteers.


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discriminate, thus extending the reach of the pre-existing employment law principle of equal treatment insofar as accessing and ending employment is a protected sphere. On a personal scale the duty extends to anyone who may discriminate in a working context, the employer, other employees and third parties such as business partners or customers and is valid irrespective of the employer’s intention. In full accordance with Article 4 of the Directive, Section 8 of the Act offers the possibility of justifying discrimination due to an occupational requirement. More specifically, Section 8(2) excludes discrimination in the form of lower pay based on laws offering protection to particular groups because of the grounds listed in Section 1. This rule helps to protect particularly vulnerable workers such as disabled or pregnant persons from falling under Section 8(1). Section 9 makes discrimination based on religion or worldview acceptable on the condition that this is a justified occupational requirement related to adherence to its self-conception or due to a specific activity involved. The rule also establishes that the general prohibition of discrimination does not impair the right of religious or worldview communities to demand loyal and honest conduct of their employees.

As regards justified age discrimination, Section 10(1) translates Article 6(1) of the Directive, i.e. it lists four examples that constitute legitimate aims which have to be achieved by appropriate and necessary means. Four more examples of legitimate goals were added to the German text. These are fixed-term contracts ending once the eligibility for a pension starts, age as a criterion to determine candidates for redundancy, the exclusion of dismissals for employees above a certain age and a difference in social payments. Although

this seemingly opens the door to a variety of discriminatory measures, all exceptions will have to undergo strict assessment as to their justification taking into account the interests of all involved.85

Specifying that no advertisements for posts may be published that are contrary to the prohibition of discrimination in Section 7(1), Section 11 restricts the employer in this aspect. A corresponding rule86 already existed in relation to sex discrimination and was found useful to establish a presumption of discrimination in court.87

Section 12 of the Act is a novel introduction to the German law as it explicitly lists the duties of the employer in relation to dealing with and preventing discrimination. For the purpose of the former employers now need to undertake necessary and suitable measures and for training needs to be provided to all employees and the Equal Treatment Act needs to be publicised in all workplaces.

Another first time occurrence is Section 13, which gives employees the right to complain about discriminatory conduct and an entitlement to have their case investigated. Further strengthening the employee’s position Section 14 grants a right to refuse work whilst being fully paid if the employer does not take measures to end harassment and this is necessary for their protection.

Section 15 demands fault based responsibility of the employer resulting in the payment of damages in cases of discrimination. For non-pecuniary damage there is no requirement of fault. This is limited to the amount of three months wages in addition to having to be appropriate. The time limit for making claims is two months and there is no right

85 Bundestags-Drucksache 16/1780, p.36. 86 Section 611b BGB. 87 See fn.28, p.133.


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to be employed or to enter a position even if it is still available and the discrimination claim was successful. There appear to be little time to decide whether to pursue a claim and damages seem to be modest. This provision was actually amongst those that were amended shortly before enactment in order to prevent the Act from being blocked by the Bundesrat, which demanded changes favourable to the employers.88 In this state the compatibility of this section with Article 17 of the Directive is questionable, as this provision requires effective, proportionate and dissuasive sanctions. It is the first time though that under German law damages and compensation can be claimed simultaneously.89 Section 16 is the counterpart to Article 11 of the Directive and does not allow for disadvantages for claiming rights under the Act. It is irrelevant whether claims are true. The mere feeling of being discriminated against is sufficient and there is no right to have the complaint recalled unless it is consciously untrue or was made gross negligently.90

Section 17 contains encouragement for collective agreement parties, employers, employees and their representatives to adhere to the Act. Where applicable works councils or trade unions can sue on behalf of the employee.91

Section 18 applies to memberships in professional bodies and this can be enforced if discrimination was reason for denied entry.

Another provision the compatibility of which is questionable is Section 22. Unlike in the draft act proposed by the former government and Article 10 of the

88 Bundesrats-Drucksache 329/06, Beschluss. 89 Fn.28 supra, p.151. 90 See fn.28, p.160. 91 Section17(2).

Directive, the burden of proof is not reversed after the claimant provides plausible facts. Under Section 22 a reversal of the onus requires “indication” of facts leading to the presumption of discrimination. Indication is seen as being between proof and claiming facts and defined by the Federal Employment Court as “according to general life experience there being predominant likelihood that discrimination occurred”92 In view of the difference between the requirements set by the Directive and the implementing rule, it is possible that Section 22 is incompatible with EC law similar to Sections 2(4) and 15. Section 23 facilitates the option of support from anti-discrimination organisations with more than 75 members who can take the case to court or act as representatives where no legal representation is required.

Importantly, public servants93 enjoy only a similar level of protection to private sector employees. This is particularly relevant in Germany with its tradition of distinctive differences between the two sectors in view of duties and privileges. However, the application of the Act is restricted by virtue of Part 5. In line with Section 24 the Act applies accordingly to public servants on the condition that their special legal position is taken into account. The underlying reason offered is that public service employees will not be granted a right to refuse working insofar as this would in the particular case impact on fulfilling their duties. This is based on the view that common welfare necessitates the appropriate and continuous fulfilment of

92 BAG 05/02/04 – 8 AZR 112/03 – NZA 04, 540. 93 Including civil servants (Beamte/Beamtinnen, in Germany a majority of those working for public authorities), judges and those in alternative civilian service (Zivildienst, compulsory community work for men who make use of their right to conscientious objection to the otherwise obligatory military service).


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public services.94 Regardless of whether this is a realistic problem, it is doubtful whether such a restriction would be justified or whether the provision satisfies the default of the Directive to include public sector employees. Nollert-Borasio and Perreng therefore rightly suggest that Section 24 may only be used in extreme exceptions and these are not justifiable in cases of employees in the alternative civilian service.95

A Federal Anti-Discrimination Authority96 was only recently established under the framework of Part 6. Until March 2007, however, the only information available online was the body’s postal address, as it had not yet established its own web page.97 This may hint at a lack of the authority’s full functionality prior to the public dissemination of information on its role and competences. It is noteworthy though that for the purpose of the authority, the term “anti-discrimination” was considered suitable, possibly to indicate an action-oriented role. The relevant provisions of Part 6 generally exceed the specifications of the Directive. The Anti-Discrimination Authority is established under the umbrella of the Federal Ministry for Family Affairs, Senior Citizens, Women and Youth and is responsible for conducting general research and raising public awareness in the field of discrimination as well as for supporting single cases through information, referrals and mediation.98 It is headed by a person nominated by the government and will ordinarily be replaced after parliamentary elections. In accordance with Sections 28 to 30, cooperation with other authorities, NGOs

94 Bundestags-Drucksache 16/1780, p.49. 95 See fn.28 supra, p.187. 96 ADS (Antidiskriminierungsstelle des Bundes), http://www.antidiskriminierungsstelle.de. 97 http://www.bmfsfj.de/Kategorien/Ministerium/ antidiskriminierungsstelle.html (16/03/2007). 98 Section 27.

at local, national and European level, are to be maintained through the support and guidance of a council of up to 16 volunteer experts and representatives of society nominated by the Ministry. In this manner, the Directive’s requirements of disseminating information,99 social dialogue and communication with NGOs100 are met.

Apart from the novel Equal Treatment Act featuring general protection against discrimination, the implementation process of the equal treatment directives also resulted in several amendments to existing statutes. Within the scope of the employment, however, most of the significant changes were included in the Act itself.

Conclusions Implementing the Employment Framework Directive two and a half years after the stipulated deadline, having been rebuked by the European Court of Justice and following a heated debate, Germany finally provided relief in the form of the Equal Treatment Act in 2006. Unlike before its enactment, there is now a clear written rule on the employer carrying the responsibility for the non-discrimination of his/her employees within all areas of working life. Embracing all grounds of discrimination enshrined under Article 13 EC, the rules of the Equal Treatment Act do not only go beyond the Framework Directive, but also beyond previous national law, which offered explicit protection merely against sex and disability discrimination in the private sector. Another welcome novelty are the definitions of direct and indirect discrimination, which increase the accessibility of discrimination law to the wider public. The same can be said for 99 Article 12. 100 Articles 13 and 14.


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Section 12’s outline of the employer’s duties concerned with the protection from discrimination.

That said, the Act may not fully comply with the conditions formed in the Directive. As was seen, its Sections 2(4) and 22 are possibly contrary to the Directive’s parameters, by remaining silent on the inclusion of dismissals and by decreasing a potential discrimination victim’s chance of reversing the burden of proof in a trial. Further doubts as to the effectiveness of the Act arise in the context of claims. In comparison to the Anglo-American legal sphere in particular, there is still no enforceable claim to enter a post or to be promoted as a consequence of an established discrimination case.101 Additionally, it is proposed that due to the modest awards of damages so far awarded in sex discrimination cases, only practical experience will show whether the German law satisfies the European standards.102

In view of the strong opposition of politicians and academics during the drafting processes of both the attempted Anti-Discrimination Act and the ultimate Equal Treatment Act, the current legal reality ought to be seen as a relative success. However the shortcomings of the Act and the unfounded resistance of some industrial and legal commentators show that this is merely a starting point of a long-needed framework to match the importance of protection from discrimination in society. It can be hoped that the experience the Equal Treatment Act will allow for in the near future, will change perceptions and finally facilitate an environment that truly encourages diverse workplaces.

101 Fn.28 supra, p.6. 102 See fn.28, at p.6.


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Europaeum: a blue-print for East-West integration?

Maxim Gatskov, University of Regensburg

1. Semantics The word “Europe”, if we leave the ancient Greek myth aside, is originally used to refer to a continent or, geographically more correct, to the westernmost peninsula of the Eurasian continent. Usually though, or at least very often, the words “Europe” and “European” embody a certain kind of cultural identity and environment. This becomes apparent when “Europe” is compared to societies with different cultural dominants. Finally there is a third central meaning applied to the term “Europe” especially after the establishment of the European Union and maybe more often than ever after the so called “big bang” enlargement of the EU in 2004. Without following the path of semantic analysis any further we can easily see that the concept of Europe has not only many different layers linked together in a certain fashion, but that it has also been evolving gradually through centuries while experiencing shifts in meaning every few decades. In the last sixty years, due to many major changes in political, economic and ideological geography of the continent, a new idea of Europe has emerged. “Europe” is no longer being defined through its contrast to Non-Europe, but by its inner trans-cultural unity and uniqueness which remains to be established, maintained and appreciated. As a result, the shifts in meaning of the concept of Europe have increasingly become the object of reflection for individuals who can be called “Europeans by faith” – or at least “by education”.

An institution called “Europaeum” then could be interpreted as a place where these individuals would meet, develop and exchange their ideas. To express it in a more sophisticated way: “Europaeum” embodies the constructivist faith in Europe, on a stage of institutionalised evolution of the concept in question.

2. Pragmatics What has been said so far about the origins of the name “Europaeum” should not make one believe that it is hardly possible to translate lofty ideas into tangible projects. Europaeum, the East-West Centre at the University of Regensburg, has been operating successfully since its foundation in 2000. As the words “East-West Centre” indicate, the main goal of Europaeum is to promote dialogue between cultures in eastern and western Europe. This issue remains of great concern in the European integration process despite considerable progress made in the last twenty years. Due to the 40-year separation caused by the “iron curtain” the dialogue between eastern and western Europe remains somewhat difficult and needs to be fostered. As an academic institution Europaeum supports this dialogue for all stakeholders at the University of Regensburg.

The two cornerstones of Europaeum’s philosophy are interdisciplinarity and intercultural comparison. The Centre currently focuses on the following areas of work: the MA programme Ost-West Studien (“East-West Studies”), the Tandem projects, events with thematic foci on Europe (Europe Day, excursions to


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Brussels and various countries in eastern Europe) and – last but not least – the implementation of collaborative projects with other organisations. The fact that Europaeum is a university centre does not limit its activities to the academic field. Numerous projects (exhibitions, panel discussions, lecture series, amateur theatre plays etc.) are carried out in cooperation with various political and economic stakeholders as well as cultural organisations. Some are one-time projects, others result in long term cooperation.

Europaeum is primarily concerned with teaching and research and offers support and assistance to students, university lecturers and researchers, who are looking for cooperation partners across national borders within Europe. In 2009, the Centre will intensify research focused European affairs. A new staff member will join Europaeum to coordinate research projects and ensure funding.

In the winter semester of 2002/03 Europaeum launched an international and interdisciplinary Master’s programme Ost-West Studien (OWS), open to students from eastern and western Europe, who have already obtained a bachelor’s degree (or its equivalent) in a social sciences or humanities subject. The Master’s diploma in OWS certifies sound knowledge of European affairs in the respective field(s) (economics, history, literature, law etc.), with a focus on central, eastern and south-eastern Europe. In the course of their studies students specialise in two of the above-mentioned fields, learn at least two foreign languages, conduct comparative analysis of cultures and gain intercultural experience. The combination of interdisciplinary approach and international environment is expected to foster creativity, cross-boundary thinking and commitment to common values in future professional activity. The duration of the MA programme OWS is two years.

Graduates are qualified to work at different EU agencies, various international organisations and companies operating throughout Europe. To make sure OWS students get the opportunity to visit courses according to their interests and aspirations, Europaeum works closely with different faculties and academic centres at the University of Regensburg as well as at partner universities in Bratislava, Brno, Łódź, Moscow, Ljubljana, Odessa, Pécs, Prague and others. Active cooperation with partner universities in the countries of central, eastern and south-eastern Europe is also a key factor for the Tandem exchange programme – another mainstay of Europaeum’s work. In the course of exchange, which always involves a visit to a partner university and a return visit to the University of Regensburg, students gain deep insight into the culture of another European country. Of course the Tandem project entails more than simply travelling abroad: before the visits take place the exchange students attend seminars to learn more about the history, culture and the institutional framework of the host country. Another important aspect is that Tandem exchange always involves personal contact between two students from partner universities. When Tandem partners contact each other for the first time they choose a topic around which their Tandem is going to revolve. Then each Tandem partner is required to set up an agenda of activities with relevance to the chosen subject (e.g. excursions, interviews etc.) so that the visits have a field study character. However spending time with the host family, sightseeing and experiencing foreign culture up close can be just as enriching as academic exchange. All in all the Tandem programme has proved to be a very productive way of bringing young people together in a learning environment.


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3. Syntax and Context There can be no doubt that “Europe” can be studied if there are suitable programmes, competent lecturing staff and interesting projects. Possibly such a study process can take place without any specific coordination effort, provided that the university meets all of the three aforementioned requirements. It would be up to students then, to design their curricula accordingly.

The first thing that would be lost in that case is the symbolic value of the respective curricula design: after all, the names “Europaeum” and “East-West Studies” imply a mission. It should also be mentioned that sometimes it is “mere” coordination that really creates something new by combining separate elements to one whole (remind yourself of current “European affairs”).

In this context Europaeum can be compared to three other types of institutions: on the one hand academic centres providing organisational support to other university departments or individuals, on the other hand supervising offices, the aim of which is essentially to coordinate international study programmes, and finally those non-governmental organisations whose projects (exhibitions, symposiums etc.) are aimed at the general public and therefore go beyond the academic field. Europaeum takes all three paths and can therefore deliver more value through synergy effects. Of course synergy is possible only because of the existing institutional framework and the profile of the University of Regensburg where one can find several study programmes with a special focus on certain countries (Bohemicum (Czech Studies), Slovakicum (Slovak Studies), but also German-Spanish, and German-French Studies), research institutes with focus on central,

eastern and south-eastern Europe and last but not least the “Bavarian Centre for Central, Eastern and South-Eastern Europe” (BAYHOST), which provides not just organisational assistance but also considerable financial support through many different programmes (mobility and internship grants, scholarships for language courses and postgraduate studies).

4. Connotation Several years ago I decided to participate in the MA programme Ost-West Studien offered by Europaeum, after having studied for four years at my home university in Russia. From my point of view there are three distinguishing characteristics about the East-West Centre at the University of Regensburg and its MA programme OWS. What tipped my decision was the fact that I could choose a field of specialisation regardless of my previous studies. Nonetheless, due to the interdisciplinary nature of the programme, the expertise obtained during my first degree turned out to be of advantage in many courses. Another important aspect, which I however learned to appreciate later, is the fact that I became a member of a non-virtual networking platform at Europaeum. In our day and age when “networking” has become a buzz word – and the more it is being abused, a curse – it seems to me that studying in a middle-sized, familiar group and working on various projects outside the classroom with people from this same group, is the only way to establish contacts which stand the future test of more than a few e-mails. Finally what must be mentioned about Europeaum is that the Centre constantly takes up new challenges in response to changes in university infrastructure, in German educational policy, EU guidelines, and political and economic changes in


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Europe and the whole world. In future the Centre will continue contributing to modern day education and to the evolutionary construction of Europe and European identity. And maybe one day Europaeum will evolve to become a blueprint for similar institutions at other European universities.

Further information on the Europaeum Centre in Regensburg is available at http://www.europaeum.de


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Annual Conference of the British International History Group

The University of Salford will be hosting from 2-5 September 2009 the annual conference of the British International History Group, part of the British International Studies Association.

Keynote Address: Professor John Keiger (Salford) The British International History Group (BIHG) was founded in 1987, as a sub-group of the British International Studies Association (BISA). It exists to draw together all those interested in teaching and researching into the history of international relations at university level in the United Kingdom. The Group holds its own conference in September, which includes the annual general meeting. The BIHG committee, elected at the conference, also acts as a link to other institutions such as the Foreign and Commonwealth Office and The National Archives. It seeks to defend the interests of historians of international relations at national level by, for example, making representations about the format of research assessment exercises.

For further information, please contact:

Dr Gaynor Johnson [email protected]


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Call for Contributions/Papers: European Minorities in Cross-Disciplinary Perspective

The Manchester Jean Monnet Centre of Excellence (JMCE) has recently been awarded Arts and Humanities Research Council funds to intensify its PhD training provision. As part of its commitment to postgraduate learning and training, the Centre is organising in 2009 a PhD conference and a special issue of its Yearbook on the topic of European Minorities in Cross-Disciplinary Perspective.

On 26 June 2009 the Centre will host a cross-disciplinary conference with a number of high-profile guest speakers giving plenary talks including Professor Patrick Stevenson (Southampton) and Professor Dieter Halwachs (Graz). The conference will be open to students from Manchester and beyond.

The Centre’s Yearbook 2009 (planned publication date: autumn 2009) will also have a special focus on European minorities. All articles submitted for the

Yearbook will be peer-reviewed by an advisory board. PhD students researching European minority groups from any disciplinary angle (e.g. linguistics, law, history, education, cultural studies and the social sciences) are invited to submit an abstract for the conference and/or submit an article for inclusion in the Centre’s Yearbook 2009. Students from JMCE-affiliated universities are particularly encouraged to submit a paper for consideration. We also welcome relevant book reviews and conference reports for inclusion in the Yearbook.

Full details are available on the JMCE’s website (section ‘Young Researchers’):

http://www.manchester.ac.uk/jeanmonnet Deadline for conference abstracts: 1 April 2009 Deadline for submissions for the Yearbook: 10 July 2009


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Manchester JMCE Seminar Series 2009 Further details and abstracts are available from the Manchester JMCE website http://www.manchester.ac.uk/jeanmonnet 11 February The Roma: Europe’s largest invisible minority, Yaron Matras 25 February Protest Politics across Europe, Senior academics from Manchester and Salford 11 March The ‘inconvenient truth’ about financialisation: ‘Policy networks’ and ‘social content’ of EU financial market integration, Huw Macartney 25 March An EU Arctic Policy, Clive Archer 29 April New Frontiers in EU Labour Law: From Flexicurity to Flex- Security, Jeffrey Kenner 13 May Challenging Europe’s Research and Innovation Systems, Luke Georghiou


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Manchester JMCE Annual Lecture 2009 We are delighted to announce the details of this year’s annual lecture:

18 May

The new Republic and the Old Empire:

the United States and the British Isles after 1776

Maurice Bric, UCD

All welcome. Further details are available on our website: http://www.manchester.ac.uk/jeanmonnet/annuallecture.htm

Documents

Manchester Jean Monnet Centre of Excellence Yearbook 2008, edited by Filippo N. Nereo & Kimberley J. Taylor