Employment rights of Union Citizens

Question 1

Commission v France (French Merchant Seamen)

Answer 1

Example of direct discrimination

Concerned a French ministerial order which imposed an overall ratio of three French to one foreign national on ships of the merchant felt

ECJ: this ministerial order breached article 45 TFEU and Article 4 of Regulation 492/2011

Question 2

Ugliola

Answer 2

Example of indirect discrimination

Facts: Italian interrupted his employment in West Germany in order to fulfil his obligation as an Italian citizen to undertake compulsory military service in the Italian army. He had then resumed his employment with the same employer in West Germany. He wished his period of military service to be taken into account in determining his seniority with his employer. West German law provided for the period of military service to be taken into account but this only applied to workers who, irrespective of their nationality, undertook military service in the West German military army.

ECJ: held that this breached article 45 TFEU as it indirectly discriminated against workers from other MSs who undertook military service in their country of origin

Question 3

Groener v Ministry of Education

Answer 3

Irish Minister for Education refused to appoint a dutch national as she did not have the certificate of proficiency in the Irish language or an equivalent qualification and had failed a beginners course in irish gaelic.

The proficiency requirement applied to anyone applying or a permanent full time post as a teacher in certain areas, irrespective of their nationality

ECJ: held that the language condition was required by reason of the nature of the post to be filled and formed part of a policy of promoting national identity and culture

Question 4

Bosman

Answer 4

Bosman was a Belgian footballer whose contract had expired with his Belgian club. He wished to transfer to a French club who wanted to engage his services. Under the transfer system of football association, his own club would not release him without payment of a transfer fee by the club wishing to engage him. This rule was standard through FAs in Europe and did not discriminate directly or indirectly against non-nationals.

ECJ: held that the transfer rules still directly affected player’s access to the employment market in other MS and so were capable of impeding the freedom of movement for workers prohibited b Article 45.

But can be justified if those rules pursued a legitimate aim compatible with the Treaty and were justified by pressing reasons of public interests

Question 5

Gul

Answer 5

Facts: concerned a Turkish doctor who was living in Germany with his British wife. He had been given temporary authorisation to practice medicine but his application to renew was refused

ECJ: Article 23 of Directive 2004/38 gave him the right 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