Differentiated Eurolegalism in Action: Comparing the Judicial Enforcement of the EU Anti-Discrimination Law in Sweden and Belgium

Referring to scholarly work on Eurolegalism, defined as “the spread of a distinctive, juridified mode of governance” across European countries (Kelemen 2011), this article compares the judicial enforcement of legal norms within two European member states: Sweden and Belgium. It suggests looking at Eurolegalism in action, at the stage of policy implementation: who are the agents and which are the institutions empowered to protect legal rights? How do they use the court to enforce the law? To analyse this phenomenon, I focus on the enforcement of the EU and national anti-discrimination laws, which explicitly empower individuals to enforce legal norms but also create new public agencies to assist individuals in the process of mobilization of the court. It examines the variation in the litigation activity of the Equality Ombudsmen in both countries in the cases regarding employment issues. Differentiated judicial enforcement of anti-discrimination norms can be highlighted. In Sweden, the high degree of autonomy of social partners conducted the unions to resist to any governmental (and European) intrusion in labour issues. In this context, the Equality Ombudsman is a relatively weak agency, which builds its litigation policy without, even against, the social partners. In Belgium, where public authorities supervise the role of trade unions, the Equality Ombudsman negotiates the access to the labour court and its judicial policy with the labour unions. Through interviews with Equality Ombudsmen lawyers, labour unions, and private lawyers in Belgium and Sweden, the analysis of the differentiated Eurolegalism in action implies to go further than a comparison of the different national legal styles and legal cultures. It rather suggests taking into account the agents who mobilize the law, their participation in the governance process, and their relationship with the State and various interest groups. It also shows two ways of complying with the EU requirements.