A Fresh Look at Judicial Remedies in EU Equality Law and Beyond: The Untapped Possibility of Structural Injunctions

Document Type

Article

Publication Date

2023

Abstract

This Article proposes a shift in thinking about judicial remedies (or “sanctions”), from antidiscrimination law to equal pay and beyond. We suggest the currently preferred remedies – one-off declarations, compensation, fines, and simple orders to obey the law – may be insufficient when confronting a recalcitrant institution, complex violations, or broad, ongoing harm. In such cases, we suggest considering a remedy long overlooked in Europe: a “structural injunction”, i.e., ordering changes to an offending organisation’s structure, processes, or rules.

We argue that, under certain circumstances, an injunction, including a structural injunction, may be appropriate or required under EU law to remedy persistent organisational discrimination, including systemic or structural discrimination. After considering the injunctive demands of Union law, and the appropriateness of structural injunctions, we examine their compatibility with national constitutional traditions. Finally, we analyse different forms of structural injunctions to show how courts may issue them – in what we call their “modern” form – while minding the judiciary’s constitutional role and institutional competence.

This Article seeks to inform current theory and practice from legislative drafting to enforcement of European equality law, as well as other areas where complex or systemic organisational violations persist. Comparative analysis informs our argument.

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