Sex Equality in Social Protection: New Institutionalist Perspectives on Allocation of Competence Tamara K. Hervey* Abstract: T his article ex amines the development of regulation in the European Union ( EU) of sex equality in social protection. It applies research methodologies suggested by ‘new institutionalist’ and ‘historical institutionalist’ perspectives on European integration. It does not aim to replace existing accounts, but simply to add an additional perspective to the analysis. T he article suggests that new insights can be gained by observing the impact of the question of ‘division of competence’ on the issue of regulation of sex equality in social protection by the EU. The focus on division of competence illuminates relationships between institutions involved in the process of policy formation and implementation, especially the European Commission and the European Court of Justice. It may also illuminate policy outcomes and the directions in which the EU’s sex equality law ( and possibly social law more generally) has developed and may develop in the future. I Introduction The EU has enacted very few regulatory measures in the field of welfare policy. Thus, as Leibfried and Pierson note, ‘the welfare state remains one of the few key realms of policy competence where national governments still appear to reign supreme’. 1 Apart from the obligation to comply with the co-ordinating principles of Regulation 1408/71 2 and related measures to ensure transfer of social security benefits of mobile workers within the EU, Member States retain competence to enact their own measures relating to welfare or social protection. The main exception to this generalisation is the EU’s regulation of sex equality in the social protection field. The EU has enacted provisions which regulate national * University of Nottingham, UK. Earlier versions of this article were given at Beyond Equal Treatment - Social Security in a Changing Europe, Office for the Minister of Social Welfare, Ireland and European Commission, Dublin, October 1996; European Community Studies Association Biennial Conference, Seattle, May/June 1997 and staff seminars at the University of Ulster, April 1997 and the University of Manchester, January 1998. My thanks to all those who gave helpful comments and suggestions, especially Professors Karen Alter, Brian Bercusson, Simon Bulmer, Martin Loughlin and Jo Shaw. The usual disclaimer applies. 1 Leibfried, and Pierson ‘Social Policy’ in Wallace and Wallace Policy-M aking in the European Union (OUP, 1996) at 189. 2 OJ Sp. Ed. 1971 (II), at 416. European Law Journal, Vol. 4, No.2, June 1998, pp. 196–219 © Blackwell Publishers Ltd. 1998, 108 Cowley Road, Oxford OX4 1JF, UK and 350 Main Street, Malden, MA 02148, USA