O. Pollicino, Discriminazione sulla base del sesso e trattamento preferenziale nel Diritto comunitario. Un profilo giurisprudenziale alla ricerca del nucleo duro del New Legal Order
| Autor | Giuseppe Martinico |
| Páginas | 258-264 |
O. Pollicino, Discriminazione sulla base del sesso e trattamento preferenziale nel Diritto comunitario. Un profilo giurisprudenziale alla ricerca del nucleo duro del New Legal Order, GIUFFRÈ, MILAN, 2005, PAG. 330, 29 EUROS.
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The reviewed volume1 is the outcome of a long research project conducted by the author – currently Associate Professor in Law at the Bocconi University of Milan – during several research experiences; it won the “Marco Biagi” prize, an important award which permitted Pollicino to publish the volume for the Italian publisher Giuffrè of Milan.
The contents of this volume have been partially anticipated in some papers appeared in Italian and international journals during these years2.
The aim of the work consists of the study of both the preferential treatment’s evolution and the logics of the European Court of Justice (ECJ)’s modus decidendi in this field.
According to the author, in fact, this field of inquiry is particularly suitable for identifying the Court’s decisional techniques, as well as understanding the concepts of judicial activism and self-restraint and their respective limits.
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Such an analysis allows the author to place his conclusions in a general framework context, and to establish parameters which help us appreciate a creative decision and evaluate its outcome; as a matter of fact, the final chapter of the volume, rather than limiting its considerations to the field of sex equality principle, is focused on the current constitutional moment in the EU.
The book consists of a general introduction followed by six central chapters and the author’s final remarks.
In the first chapter, after having underlined what is regarded by the author as the real meaning and extent of the judge’s power, with particular emphasis on the specific role of the ECJ, and after having identified and evaluated the Court’s lawmaking judicial operations, he focuses on the legal and jurisprudential evolution of the principle of equal treatment before the Kalanke3 judgment.
The second chapter is devoted to the comparison between the “twin cases” Kalanke and Marschall which represent - according to the scholarship - the reference mark for the new season of the preferential measures’ evolution in EC law.
The third part of the volume focuses on the preferential treatment’s second phase: it is divided into two sections: the first one is centred on the legal (positive law) framework while the second one concentrates on the jurisprudential evolution (Badeck4 versus Abrahamsson5 and Schnorbus6) in matter of sex equality law.
In the fourth chapter Pollicino resumes the trends analytically studied in the previous chapters stressing the need for balancing in those cases the values involved before the ECJ.
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The fifth chapter dwells on the comparison between Grant and P.v.S. underlining the opposite solution reached by the ECJ in these very similar cases.
The final remarks (once more divided into two sections) focus on the human dignity principle as an emerging value which should characterize the EC anti-discriminatory law and the European Social law’s new season. The principle of human dignity has been recently re-discovered by the ECJ in the very famous judgment Omega7 as an impenetrable barrier for the reasons of economic law. This statement should be read as the finishing line of a long run, which started after Solange I8. This judgment intended to demonstrate (not by coincidence before a German judge) the ripeness of the EU legal system and, in general, the outcome of the constitutional dialogue with the national judicial interlocutors.
The second section of the final remarks hypothesises the constitutional tolerance principle’s possible...
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