Chapter 4 b Flashcards
What employment rights do Article 45 TFEU confer?
Prohibits
- direct discrimination
- indirect
- indistinctly applicable measures which impede access to the employment market
What is direct discrimination (employment)
Where workers from other Member States are overtly treated less favourably than nationals of the host Member State
> Commission v France (Seamen)
- ration of 3 French nationals to one on merchant fleet
- breached Article 45 and Article 4 of Regulation 492/2011
What is indirect discrimination (employment)
When a rule relating to employment is neutral in terms of nationality but in practice it affects non-national workers more severely than nationals.
Württembergische
- italian who had interrupted his employment in West Germany in order to fulfil his military service in Italian army
- resumed
- West German law provided for the period of military service to be taken into account in calculating the duration of a worker’s employment but this only applied to workers who, irrespective of their nationality, undertook military service in the West German military.
indirect disc
Can be justified on objective public interest grounds.
Sotgiu
What happened in Sotgiu?
Justification of indirect discrimination
- Workers in the West German Federal Postal Service received a separation allowance when they were employed away from home. This was increased by 10 DM per day for workers whose place of residence was within Germany but by only 7.50 DM per day where their place of residence was abroad.
- Sotgiu was an Italian national whose family was still residing in Italy. He was only entitled to the smaller increase.
- justifiable - Workers who retained their residence abroad were not required to move and so their allowance was expected to continue indefinitely.
How can you justify indirect discrimination?
Article 3(1) This article prohibits discrimination by Member States in respect of applications and offers for employment but then qualifies the prohibition by adding that it ‘shall not apply to conditions relating to the linguistic knowledge required by reason of the nature of the post to be filled.’
Groener v Ministry for Education
- Dutch national who had been engaged on a temporary basis as a part-time lecturer in art at a college in Ireland.
- applied for a permanent full time position which would be taught exclusively in English.
- he Minister for Education refused to appoint her as she did not have the certificate of proficiency in the Irish language or an equivalent qualification and had failed a beginner’s course in Irish Gaelic.
- The proficiency requirement applied to anyone applying for a permanent full–time post as a teacher in certain areas, irrespective of their nationality.
- The Court of Justice held that the language condition was required by reason of the nature of the post to be filled as it formed part of a policy of promoting Irish Gaelic, which was one of the official national languages of Ireland, as a means of expressing national identity and culture.
What happened in Groener?
Allowed discrimination Article 3(1) of Reg 492/2011
- Dutch national applied for a permanent full time position which would be taught exclusively in English.
- refused - no certificate of proficiency in the Irish language or an equivalent qualification and had failed a beginner’s course in Irish Gaelic.
- CoJ - language condition was required by reason of the nature of the post to be filled as it formed part of a policy of promoting Irish Gaelic, which was one of the official national languages of Ireland
What are Non discriminatory obstacles to accessing the employment market
Extended its interpretation of Article 45 TFEU
Prohibit measures which impede access to the employment market without being either directly or indirectly discriminatory on the basis of nationality
UNLESS Pressing Reasons in the Public Interest!
Kraus
The case was brought by a German student who had obtained a Masters in Law (LLM) from the University of Edinburgh and who, having returned to Germany, had refused to make a formal application for authorisation to use the academic title in Germany.
The possession of an academic title may be such an obstacle as it may be a pre-requisite for entry into a profession. Even if it is not a pre-requisite, it may still be advantageous to the holder.
a national measure governing the conditions under which an academic title obtained in another Member State may be used would be prohibited in so far as it is liable to hamper or to render less attractive the exercise by Community nationals, including those of the Member State which enacted the measure, of the free movement of workers, even if the measure is applicable without discrimination on grounds of nationality.
the Court of Justice went on to hold that such a measure could be justified if it pursued a legitimate objective compatible with the Treaty and was justified by pressing reasons of public interest.
The Court concluded that, on the facts, the German measure could be justified by the need to prevent the misleading use of academic titles so long as this was proportionate.
Union
- Football
What happened in Kraus
Measures equivalent to discrimination
- a legal requirement in Germany that a person must obtain authorisation from the relevant German federal state before he or she could use an academic title obtained in a foreign higher education establishment.
- The requirement applied irrespective of the nationality of the person wishing to use the title in Germany.
The case was brought by a German student who had obtained a Masters in Law (LLM) from the University of Edinburgh and who, having returned to Germany, had refused to make a formal application for authorisation to use the academic title in Germany. - The possession of an academic title may be such an obstacle as it may be a pre-requisite for entry into a profession. Even if it is not a pre-requisite, it may still be advantageous to the holder.
a national measure governing the conditions under which an academic title obtained in another Member State may be used would be prohibited in so far as it is liable to hamper or to render less attractive the exercise by Community nationals, including those of the Member State which enacted the measure, of the free movement of workers, even if the measure is applicable without discrimination on grounds of nationality. - the Court of Justice went on to hold that such a measure could be justified if it pursued a legitimate objective compatible with the Treaty and was justified by pressing reasons of public interest.
The Court concluded that, on the facts, the German measure could be justified by the need to prevent the misleading use of academic titles so long as this was proportionate.
leading case is
Union Royal Belge
- wished to transfer to a French club who wanted to engage his services.
Under the transfer system of football associations, his own club would not release him without payment of a transfer fee by the club wishing to engage him.
- This rule was standard throughout football associations in Europe and did not discriminate directly or indirectly against nonnationals. The rule also did not discriminate against players transferring internally or those going abroad. Despite this, the Court of Justice held that the transfer rules still directly affected players’ access to the employment market in other Member States and so were capable of impeding the freedom of movement for workers.
- So was an obstacle to free movement
The Court of Justice added that it could only be otherwise if those rules pursued a legitimate aim compatible with the Treaty and were justified by pressing reasons of public interest. But even if that were so, application of those rules would still have to be such as to ensure achievement of the aim in question and not go beyond what is necessary for that purpose
What happened in Union Royal Belge?
- wished to transfer to a French club who wanted to engage his services.
- needed transfer fee by the club wishing to engage him.
- directly affected players’ access to the employment market in other Member States
- So was an obstacle to free movement
What are the rights of family members to take up employment?
Article 23 of Directive 2004/38
‘FM of a UC who has right of residence shall be entitled to work’ (even if non EU)
Gul
- Turkish doctor who was living in Germany with his British wife.
- temporary authorisation to practice medicine but his application to renew this was refused.
- The Court interpreted the predecessor of Article 23 of Directive 2004/38 as providing him with a right take up any activity as an employed person on the same conditions as a worker under Regulation 492/2011 and subject to the same rules governing access to and the pursuit of the occupation as the nationals of the host Member State.
What happened in Gul
Right of family members to take up employment
This case concerned a Turkish Cypriot doctor who was living in Germany with his British wife. His wife worked as a hairdresser.
He had been given temporary authorisation to practice medicine but his application to renew this was refused.
The Court interpreted the predecessor of Article 23 of Directive 2004/38 as providing him with a right, as the spouse of a national of a Member State employed in the territory of another Member State, to take up any activity as an employed person on the same conditions as a worker under Regulation 492/2011 and subject to the same rules governing access to and the pursuit of the occupation as the nationals of the host Member State.
He was therefore entitled to rely on Article 3(1) of Regulation 492/2011.
What happened in Commission v France (Seamen)
- ratio of 3 French nationals to one on merchant fleet
- breached Article 45 and Article 4 of Regulation 492/2011
What happened in Württembergische
- Italian interrupted his employment in West Germany in order to fulfil his military service in Italian army
- resumed
- German law - service only taken to account in Germany
- indirectly discrimination
What are the social rights of Workers?
Article 7(2) of Regulation 492/2011
- provides that a worker who is a national of a Member State ‘shall enjoy the same social and tax advantages as national workers’.
What are the ‘social advantages’ as stated in Article 7(2) of Regulation 492/2011
Taken to include
– Discretionary childbirth loans: Reina v Landeskreditbank Baden-Württemberg
– Minimum income allowance: Hoeckx v Centre Public d’Aide Sociale de Kalmthout
– The right of a non-national who lives together with a national in a stable relationship to reside in the host State if this is available to national workers: Reed
– Funeral expenses benefits (O’Flynn v Adjudication Officer
NOT for Jobseekers (as a 'worker') LIMITED by Evans - Belgian WWII soldier pension - social advantages confined to those 'generally granted to workers bc of their worker status'
