EU w6 Flashcards
Art. 157 TFEU, which also reflects the principle of equality and non-discrimination. This article regulates equality in terms of ‘equal pay’ between men and women. Article 157 TFEU has both economic and social objective. This was first concluded in the Defrenne II case, where is was argued that art. 157 TFEU is not only economic in the sense that article 157 TFEU counteracts cost price discrepancies by employing women who are paid less for the work than men.
Article 157 TFEU is elaborated in Directive 2006/54. The basis for this Directive is article 157(3) TFEU.
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The principle of equality and non-discrimination is found in Articles 2 and 3 (3) TEU.
Art. 157 TFEU, which also reflects the principle of equality and non-discrimination. This article regulates equality in terms of ‘equal pay’ between men and women. Article 157 TFEU has both economic and social objective. This was first concluded in the Defrenne II case, where is was argued that art. 157 TFEU is not only economic in the sense that article 157 TFEU counteracts cost price discrepancies by employing women who are paid less for the work than men.
Article 157 TFEU is elaborated in Directive 2006/54. The basis for this Directive is article 157(3) TFEU.
art. 157 TFEU is about discrimination on the gounds of gender and not nationality!
Essentie van het leerstuk: met artikel 157 TFEU heeft men geprobeerd om discriminatie op basis van geslacht in de werkrelatie te verbeteren. Belangrijk is om die reden dat er sprake is van een ‘worker’ om van deze werksituatie te kunnen spreken, maar ook dat er sprake is van discriminatie op basis van geslacht. Een vrouw wordt dus ofwel direct gediscrimineerd omdat zij een vrouw is of zij wordt harder geraakt door de maatregel.
art. 157 TFEU is about discrimination on the gounds of gender and not nationality!
Basis of ethnicity. Art. 19 TFEU has NO direct effect, it CANNOT be invoked in national courts. In order to invoke discrimination on the grounds of race, directive 2000/43 must be applicable.
Basis of ethnicity. Art. 19 TFEU has NO direct effect, it CANNOT be invoked in national courts. In order to invoke discrimination on the grounds of race, directive 2000/43 must be applicable.
subject 6 Horizontal effect
The general rule for directives is that they are addressed to the state and are not applicable in a horizontal relationship. This means that citizens generally can not invoke anti-discrimination directives between themselves. This is obviously undesirable, as anti-discrimination also applies in horizontal relationships. For this reason, there are a number of nuances that can still ensure that the directives apply in a horizontal relationship.
Legal duty of the courts.
Courts have a legal duty to interpret their national laws in accordance with the rules set out in the directives. However, if the courts see no way of interpreting their national laws in conformity with EU law, fundamental principles can provide a way of acting to confirm EU law and the directives.
Fundamental principles:
according to para. 54 of the Kucukdeveci case, non-discrimination is a fundamental principle. Natioanl courts should not apply national law if it is incompatible with the fundamental principle of non-discrimination. Since the fundamental principle of non-discrimination has a horizontal effect, the directives which give effect to this principle also have a horizontal effect.
Par. 54
‘The possibility thus given to the national court by the second paragraph of Article 267 TFEU of asking the Court for a preliminary ruling before disapplying the national provision that is contrary to European Union law cannot, however, be transformed into an obligation because national law does not allow that court to disapply a provision it considers to be contrary to the constitution unless the provision has first been declared unconstitutional by the Constitutional Court. By reason of the principle of the primacy of European Union law, which extends also to the principle of non-discrimination on grounds of age, contrary national legislation which falls within the scope of European Union law must be disapplied (…)’
The Egenberger case also elaborates on this. According to para. 82, art. 21 of the Charter has horizontal effect. Since that article expresses the principle of non-discrimination, directives expressing that principle also have horizontal effect.
Par. 82
‘In the light of the foregoing, the answer to Question 2 is that a national court hearing a dispute between two individuals is obliged, where it is not possible for it to interpret the applicable national law in conformity with Article 4(2) of Directive 2000/78, to ensure within its jurisdiction the judicial protection deriving for individuals from Articles 21 and 47 of the Charter and to guarantee the full effectiveness of those articles by disapplying if need be any contrary provision of national law.’
LET OP: voordat je dus een vraag beantwoordt over discriminatie en je ziet dat er een horizontale relatie is, loop dan altijd deze arresten langs!
subject 6 Horizontal effect
Defrenne II (Case C-43/75)
Relevantie: In deze zaak werd bepaald dat artikel 157 TFEU direct effect en een ‘community meaning’ heeft, wat inhoudt dat het artikel een Europese Unie brede betekenis heeft. Het artikel heeft zowel een economische als een sociale dimensie.
Relevante feiten: The case involves Ms Defrenne who joined an airline. The woman’s contract stated that the employment relationship would end by operation of law once she turned 40. Ms Defrenne invoked unequal treatment.
Beoordeling: Paragraph 8 of the case first of all reveals that the meaning of Article 157 TFEU can go two ways. Paragraph 9 first discusses the economic meaning, namely that competition is not affected in countries where the principle of equal treatment is not respected. We can see the social definition of Article 157 TFEU in paragraph 10, which discusses that Article 157TFEU also improves the livelihoods of residents of the European Union. In paragraph 12, we then see that this double meaning is among the foundations of the European community.
In paragraph 40, we see again that Article 157 TFEU has direct effect and can therefore also be invoked in national courts.
Defrenne II (Case C-43/75)
Relevantie: In deze zaak werd bepaald dat artikel 157 TFEU direct effect en een ‘community meaning’ heeft, wat inhoudt dat het artikel een Europese Unie brede betekenis heeft. Het artikel heeft zowel een economische als een sociale dimensie.
Relevante feiten: The case involves Ms Defrenne who joined an airline. The woman’s contract stated that the employment relationship would end by operation of law once she turned 40. Ms Defrenne invoked unequal treatment.
Beoordeling: Paragraph 8 of the case first of all reveals that the meaning of Article 157 TFEU can go two ways. Paragraph 9 first discusses the economic meaning, namely that competition is not affected in countries where the principle of equal treatment is not respected. We can see the social definition of Article 157 TFEU in paragraph 10, which discusses that Article 157TFEU also improves the livelihoods of residents of the European Union. In paragraph 12, we then see that this double meaning is among the foundations of the European community.
In paragraph 40, we see again that Article 157 TFEU has direct effect and can therefore also be invoked in national courts.
Bilka-Kaufhaus (Case C-170/84)
Relevantie: De belangrijkste rechtsregel die je uit Bilka Kaufhaus kunt halen is dat onder de material scope van ‘pay’ uit artikel 157 TFEU, ‘wage’ valt.
Relevante feiten: The case involves the company Bilka Kaufhaus and the former employee (werknemer). The question at the centre of the case was whether the employee was entitled to an old-age pension under the arrangement Bilka had for its employees (werknemers). Under the scheme, employees were eligible only if they had completed 20 years of service, 15 of which were full-time. The employee did not work the required 15 years full-time, upon which Bilka did not want to give her a pension. The employee alleged unequal treatment between men and women because women are much more likely to be forced to work part-time to take care of their children.
Beoordeling: We see the first important consideration in paragraph 15 where the Court explains that wage is covered by pay from Article 157 TFEU. The Court finally defines an inference of pay from Article 157 TFEU: ‘the ordinary basic or minimum wage or salary and any other consideration, whether in cash or in kind, which the worker receives, directly or indirectly, in respect of his employment from his employer.’
We also see in paragraph 36 how the objective justification of Article 157 TFEU should be worked out. A legitimate aim must be necessary and the requirements of necessary and appropriate must be met.
Bilka-Kaufhaus (Case C-170/84)
Relevantie: De belangrijkste rechtsregel die je uit Bilka Kaufhaus kunt halen is dat onder de material scope van ‘pay’ uit artikel 157 TFEU, ‘wage’ valt.
Relevante feiten: The case involves the company Bilka Kaufhaus and the former employee (werknemer). The question at the centre of the case was whether the employee was entitled to an old-age pension under the arrangement Bilka had for its employees (werknemers). Under the scheme, employees were eligible only if they had completed 20 years of service, 15 of which were full-time. The employee did not work the required 15 years full-time, upon which Bilka did not want to give her a pension. The employee alleged unequal treatment between men and women because women are much more likely to be forced to work part-time to take care of their children.
Beoordeling: We see the first important consideration in paragraph 15 where the Court explains that wage is covered by pay from Article 157 TFEU. The Court finally defines an inference of pay from Article 157 TFEU: ‘the ordinary basic or minimum wage or salary and any other consideration, whether in cash or in kind, which the worker receives, directly or indirectly, in respect of his employment from his employer.’
We also see in paragraph 36 how the objective justification of Article 157 TFEU should be worked out. A legitimate aim must be necessary and the requirements of necessary and appropriate must be met.
Kücükdeveci (Case C-555/07)
Relevantie: De relevantie van deze zaak is dat het handvaten biedt om te bepalen of een Directive uit deze week ook in een horizontale relatie kan worden ingeroepen.
Relevante feiten: Kücükdeveci was employed by Swedex. She was fired by her employer and revolted against it. According to her, the notice period was not long enough. The employer had a rule that work done before the age of 25 did not qualify when boning the notice period. Kücükdeveci then alleged age discrimination and argued that Swedex’s provision should be disregarded.
Beoordeling:
A first important consideration we mentioned through the summary is paragraph 28, which presents the definition of direct discrimination: ‘ direct discrimination is to be taken to occur where one person is treated less favourably than another person in a comparable situation (….)’.
What this case is really about is paragraph 54. This paragraph reveals that anti-discrimination is a general principle of the European Union. It may even be considered a fundamental principle. National courts should disapply national law that violates the fundamental principle of anti-discrimination. Therefore, the principle of anti-discrimination has a horizontal effect and any article in the Directive encompassing that principle can be invoked against another citizen. However the Directive then has indirect horizontal effect.
Kücükdeveci (Case C-555/07)
Relevantie: De relevantie van deze zaak is dat het handvaten biedt om te bepalen of een Directive uit deze week ook in een horizontale relatie kan worden ingeroepen.
Relevante feiten: Kücükdeveci was employed by Swedex. She was fired by her employer and revolted against it. According to her, the notice period was not long enough. The employer had a rule that work done before the age of 25 did not qualify when boning the notice period. Kücükdeveci then alleged age discrimination and argued that Swedex’s provision should be disregarded.
Beoordeling:
A first important consideration we mentioned through the summary is paragraph 28, which presents the definition of direct discrimination: ‘ direct discrimination is to be taken to occur where one person is treated less favourably than another person in a comparable situation (….)’.
What this case is really about is paragraph 54. This paragraph reveals that anti-discrimination is a general principle of the European Union. It may even be considered a fundamental principle. National courts should disapply national law that violates the fundamental principle of anti-discrimination. Therefore, the principle of anti-discrimination has a horizontal effect and any article in the Directive encompassing that principle can be invoked against another citizen. However the Directive then has indirect horizontal effect.
Egenberger (Case C-414/16)
Relevantie: De relevantie van deze zaak is dat het ook handvaten biedt om te bepalen of een Directive uit deze week ook in een horizontale relatie kan worden ingeroepen.
Relevante feiten: Egenberger does not belong to any faith community and responded to a vacancy. However, she was not invited for an interview. She believes she was rejected for an interview because she did not belong to the desired faith community. The faith community relied on the fact that the endorsement was justified on the grounds of godliness or faith community.
Beoordeling: The most important paragraph in this case is paragraph 82. Article 21 of the Charter articulates the principle of anti-discrimination. Since this principle is a fundamental principle from the Charter, it has horizontal effect. Directives articulating this principle therefore have indirect horizontal effect.
Nadere uitleg van Lawbooks: Dit is een andere wijze om deze vraag aan te vliegen. De rechters oordeelde hierin dat een fundamenteel beginsel uit artikel 21 van de Charter horizontaal effect heeft en iedere Directive die dit beginsel verwoord indirect horizontaal effect.
Egenberger (Case C-414/16)
Relevantie: De relevantie van deze zaak is dat het ook handvaten biedt om te bepalen of een Directive uit deze week ook in een horizontale relatie kan worden ingeroepen.
Relevante feiten: Egenberger does not belong to any faith community and responded to a vacancy. However, she was not invited for an interview. She believes she was rejected for an interview because she did not belong to the desired faith community. The faith community relied on the fact that the endorsement was justified on the grounds of godliness or faith community.
Beoordeling: The most important paragraph in this case is paragraph 82. Article 21 of the Charter articulates the principle of anti-discrimination. Since this principle is a fundamental principle from the Charter, it has horizontal effect. Directives articulating this principle therefore have indirect horizontal effect.
Nadere uitleg van Lawbooks: Dit is een andere wijze om deze vraag aan te vliegen. De rechters oordeelde hierin dat een fundamenteel beginsel uit artikel 21 van de Charter horizontaal effect heeft en iedere Directive die dit beginsel verwoord indirect horizontaal effect.
Achbita/G4S Secure Solutions (Case C-157/15)
Relevantie: Deze zaak gaat om de interpretatie van artikel 2(2) a van de Directive 2000/78. De vraag die centraal staat is of het dragen van een hoofddoek gezien kan worden als ‘belief’.
Relevante feiten: Achbita is employed by G4S as a Muslim woman. There was an unwritten rule within the company whereby employees were not allowed to give visible signs of their religious beliefs. Achbita expressed to her employers that she would like to wear a headscarf to which the employers replied that this was not tolerated. The works council then passed an official resolution prohibiting her from wearing a headscarf, among other things. Achbita was subsequently fired for expressing her firm intention to express her faith. Achbita took legal steps against her resign.
Beoordeling: The first important paragraph is 28. This stipulates that wearing a headscarf can be seen as belief. the judge’s reasoning here is that the ECHR (EVRM) and the charter both use a broad concept in which expressing one’s belief through a headscarf can also be part of that definition .
Then, in further paragraphs, the system of objective justification returns. In paragraph 37, we see that requiring a certain religious neutrality from your employees can and may be a legitimate aim. Paragraph 40 then goes on to say that the measure used must also be appropriate to achieve that goal. Paragraph 42 returns to the requirement of necessity
Achbita/G4S Secure Solutions (Case C-157/15)
Relevantie: Deze zaak gaat om de interpretatie van artikel 2(2) a van de Directive 2000/78. De vraag die centraal staat is of het dragen van een hoofddoek gezien kan worden als ‘belief’.
Relevante feiten: Achbita is employed by G4S as a Muslim woman. There was an unwritten rule within the company whereby employees were not allowed to give visible signs of their religious beliefs. Achbita expressed to her employers that she would like to wear a headscarf to which the employers replied that this was not tolerated. The works council then passed an official resolution prohibiting her from wearing a headscarf, among other things. Achbita was subsequently fired for expressing her firm intention to express her faith. Achbita took legal steps against her resign.
Beoordeling: The first important paragraph is 28. This stipulates that wearing a headscarf can be seen as belief. the judge’s reasoning here is that the ECHR (EVRM) and the charter both use a broad concept in which expressing one’s belief through a headscarf can also be part of that definition .
Then, in further paragraphs, the system of objective justification returns. In paragraph 37, we see that requiring a certain religious neutrality from your employees can and may be a legitimate aim. Paragraph 40 then goes on to say that the measure used must also be appropriate to achieve that goal. Paragraph 42 returns to the requirement of necessity
> Art. 157 has direct effect (can be invoked before national courts against the State)
> Article 157 also has horizontal direct effect (i.e. against employer)
last week found art. 54 TFEU free movement based on nationality is also horizontal effect and same thing for art. 157 TFEU.
> Art. 157 has direct effect (can be invoked before national courts against the State)
> Article 157 also has horizontal direct effect (i.e. against employer)
hc aant..
Indirect discrimination
Bilka-Kaufhaus judgment
Part-time employees are entitled to pensions under the scheme only if they have worked full time for at least 15 years over a total period of 20 years. Part timers were must of time excluded..
Questions:
Is this wage?
Is this covered by Art. 157?
Does the special rule for part-timers constitute discrimination? Why?
General framework for solving a case
First analyse the facts: art. 157 TFEU
Select the most specific provisions for your case. Check whether they are applicable
does the person fall under the personal scope of the provision?
does the disputed issue fall under the material scope of the provision?
what are the conditions, exemptions, exceptions?
Bilka-Kaufhaus judgment (cont.)
Personal scope: male and female workers. So workers only, self-employed is a different group.
worker definition > Lawrie Blum case.
Material scope: wage = all advantages in cash and kind which are paid now or in the future on the basis of the employment relationship
|Indirect discrimination
Part-time work is a neutral criterion: but it affects many more women than men: suspicion of indirect discrimination on ground of sex
In case of a suspicion of indirect discrimination, the person alleged of discrimination can present an objective justification. The disputed rule/practice must
(i) have a legitimate aim (228 blz. Reader)
(ii) must be adequate has to reach this aim
(iii) must not go beyond what is necessary to achieve the aim (proportional)
|Objective justification presented by Bilka (employer)
‘the exclusion of part-time workers from the occupational pension scheme is intended solely to discourage part-time work, since in general part-time workers refuse to work in the late afternoon and on Saturdays.
II Equal treatment directives
Equal Treatment m/w in Employment and Occupation
Art. 157(3) TFEU: The European Parliament and the Council, acting in accordance with the ordinary legislative procedure, and after consulting the Economic and Social Committee, shall adopt measures to ensure the application of the principle of equal opportunities and equal treatment of men and women in matters of employment and occupation, including the principle of equal pay for equal work or work of equal value:
Equal Treatment in Employment and Occupation Directive: Directive 2006/54
The nature of a directive: to be implemented by MS
|Directive 2006/54 (cont.)
Article 14: There shall be no direct or indirect discrimination on grounds of sex in the public or private sectors, including public bodies [personal scope]
[nb chapter 2 concerns occupational pensions – you can ignore this)
|Directive 2006/54 (cont.)
Article 14: discrimination is forbidden as regards [material scope]:
- access to work
- vocational guidance (training for job)
- employment and working conditions (also dismissal)
- membership of trade unions or employers’ organizations
III Terminology
direct discrimination, harassment, indirect discrimination in Directive 2006/54
|Direct discrimination
- direct discrimination: shall be taken to occur where one person is treated less favourably on grounds of sex than another person is, has been or would be treated in a comparable situation (Art. 2(1a))
- example: ‘our bakery seeks female workers’ is direct discrimination
In EU law: sex discrimination is symmetrical
|Harassment
Art. 2(2a) prohibits harassment
Harassment: when an unwanted conduct related to the sex of a person or conduct of a sexual nature occurs with the purpose or effect of violating the dignity of a person and of creating an intimidating, hostile, degrading, humiliating or offensive environment (art. 2(1c/d)).
In case of direct discrimination on basis of sex: a closed system of exceptions
- direct discrimination is forbidden unless exceptions allowed by the directive apply (closed system):
The allowed exceptions are:
1. the sex is a genuine and determining occupational requirement, provided that the objective is legitimate and the requirement is proportionate (Art. 14(2) of directive);
- the protection of the woman, in particular in case of pregnancy and maternity (Art. 2(2c));
- affirmative action (Art. 3).
|Exception 1: genuine and determining occupational requirement
The sex is a genuine and determining occupational requirement, provided that the objective is legitimate and the requirement is proportionate.
Examples:
- For the role of James Bond only men can apply
- Only women can apply for working in a fashion show of female clothing
|Exception 2: protection of women
The protection of the woman, in particular in case of pregnancy and maternity.
Example: maternity leave for women is 16 weeks, for fathers 2 days
Exception 3: Affirmative action
Art. 3: MS may maintain or adopt measures within the meaning of 157(4) of the Treaty with a view to ensuring full equality in practice between men and women in working life
Article 157(4): the principle of equal treatment shall not prevent any Member State from maintaining or adopting measures providing for specific advantages in order to make it easier for the underrepresented sex to pursue a vocational activity or to prevent or compensate for disadvantages in professional careers.
Indirect discrimination
Where an apparently neutral provision, criterion or practice would put persons of one sex at a particular disadvantage compared with persons of the other sex,
unless that provision, criterion or practice is objectively justified by
- a legitimate aim and
- the means of achieving that aim are appropriate and
- necessary
(Art. 2(1)(b) Recast directive)
|Reversal of burden of proof
Article 19: Member States shall take such measures as are necessary, in accordance with their national judicial systems, to ensure that, when persons who consider themselves wronged because the principle of equal treatment has not been applied to them establish, before a court or other competent authority, facts from which it may be presumed that there has been direct or indirect discrimination, it shall be for the respondent to prove that there has been no breach of the principle of equal treatment.
|Is this allowed?
- A bakery asks for female sales persons > direct discrimination, no exceptions seemed to be applicable. For bakery there is not have to be a female person. No protection for women and no affirmative action.
- Women can retire at 60 and men at 65 > direct discrimination. Forbidden if it is a form of employment condition. So here we made a distinguish between statutes.
- A hospital wants to employ only women in the maternity department > do we think that it is a genuine and determining occupational requirement that you only allowed women in the maternity department. Women gives birth and it is sensitive situation which we do not admitted men. But on the other hand we have men doctors.
- A law allows only men to work in a submarine > case law,
Indirect discrimination
Bilka-Kaufhaus judgment
Part-time employees are entitled to pensions under the scheme only if they have worked full time for at least 15 years over a total period of 20 years. Part timers were must of time excluded..
Questions:
Is this wage?
hc deel 2
IV. Equal treatment on other grounds:
race, religion, belief, age, disability, sexual orientation
A general Treaty provision prohibiting discrimination
Introduced by Treaty of Amsterdam
(1997), now Article 19 TFEU:
‘Without prejudice to the other provisions of the Treaties and within the limits of the powers conferred by them upon the Union, the Council, acting unanimously in accordance with a special legislative procedure and after obtaining the consent of the European Parliament, may take appropriate action to combat discrimination based on sex, racial or ethnic origin, religion or belief, disability, age or sexual orientation.’
Based on art. 19 TFEU are:
Directive 2000/43/EC equal treatment regardless of race and ethnic origin (Race directive)
Directive 2000/78/EC: Framework for equal treatment in work and profession (disability, age, religion, sexual orientation) (Framework directive) (employments conditions)
|Directive 2000/43, Article 3 (race)
Personal scope: this Directive shall apply to all persons, as regards both the public and private sectors, including public bodies. Broad scope. And not only workers.
Material scope:
(a) conditions for access to employment, to self-employment and to occupation, including selection criteria and recruitment conditions, whatever the branch of activity and at all levels of the professional hierarchy, including promotion;
(b) access to all types and to all levels of vocational guidance, vocational training, advanced vocational training and retraining, including practical work experience;
(c) employment and working conditions, including dismissals and pay
|Directive 2000/43 (cont)
(d) membership of and involvement in an organisation of workers or employers, or any organisation whose members carry on a particular profession, including the benefits provided for by such organisations;
Additional area’s: which we can not find in other directives!
(e) social protection, including social security and healthcare;
(f) social advantages;
(g) education;
(h) access to and supply of goods and services which are available to the public, including housing.
This Directive does not cover difference of treatment based on nationality
Directive 2000/43 (cont)
The directive has comparable provisions as Directive 2006/54, for instance
- Art. 2: definition of discrimination (including harassment)
- closed system of exceptions in case of direct discrimination (art. 4 genuine and determining occupational requirements)
- positive action (art. 5)
- burden of proof (art. 8)
Another one:
Directive 2000/78: a general framework for equal treatment in employment and occupation
Forbidden grounds: religion, belief, disability, age, sexual orientation
Personal scope: Within the limits of the areas of competence conferred on the Community, this Directive shall apply to all persons, as regards both the public and private sectors, including public bodies. Not limited to workers. Is broad scope all persons.
Directive 2000/78 (cont.)
Material scope
(a) conditions for access to employment, to self-employment or to occupation, including selection criteria and recruitment conditions, whatever the branch of activity and at all levels of the professional hierarchy, including promotion;
(b) access to all types and to all levels of vocational guidance, vocational training, advanced vocational training and retraining, including practical work experience;
(c) employment and working conditions, including dismissals and pay;
(d) membership of organisation of workers or employers
- This Directive does not cover differences of treatment based on nationality
Directive 2000/78 (cont.)
Exceptions
- Article 4(1): genuine and determining occupational requirements, provided that the objective is legitimate and the requirement is proportionate.
-a roman catholic school recruits only catholic teachers?
-A person in a wheel chair is refused a job as teacher?
|Directive 2000/78 (cont.)
Exceptions
Article 4(2): exception for churches and other public and private organisations based on religion or belief;
Positive action (art. 7)
With a view to ensuring full equality in practice, the principle of equal treatment shall not prevent any Member State from maintaining or adopting specific measures to prevent or compensate for disadvantages linked to any of the grounds referred to in Article 1.
Egenberger judgment page 242 directive also 244
A woman applies for a job to draw a country report on racial discrimination in Germany for a protestant organisation. A job requirement was that she was member of the protestant church. Since she did not satisfy this, she was not invited for an interview. She applied for compensation under German law
German law :‘1
Egenberger (cont.)
Court:
Art. 4(1) Directive 2000/78 allows the exception for occupation requirements. According to Art. 4(2) the requirement of religion can be an occupational requirement for churches
§ 51-53 art. 4(2) of the directive gives a balance between the right to non-discrimination and the autonomy of the churches. Courts have to examine this: is for a particular job, by reason of its activities or the context religion a genuine, legitimate and justified occupational requirement, given the ethos of the church or organisation?
so not for administration or cleaner etc.
Directive 2000/78 (cont)
Specific provision on disability (article 5)
Reasonable accommodation for disabled persons:
- employers must take appropriate measures in order to enable a person with disability to have access in employment or training, unless this is a disproportionate burden on employer
- A burden is not disproportionate if this is sufficiently remedied by public measures
Belief: Achbita judgment
Ms Achbita worked as a receptionist. After 3 years of work she informed her line managers that she intended to wear an Islamic scarf
Employer: this is forbidden because the visible wearing of political, philosophical or religious signs was contrary to the employer’s position of neutrality
In 2006 she was dismissed since she insisted on wearing the headscarf at work
What is belief? Page 252 r.o. 34?
Does art. 2(2)(a) of Dir. 2000/78 mean that the prohibition of wearing a scarf constitutes a form of direct discrimination prohibited by the directive?
Court: the directive does not define belief. However Art. 9 ECHR provides that the right to belief includes the right to manifest this religion or belief in worship, teaching, practice and observance.
Direct or indirect discrimination? The disputed rule of the employer treats all workers in the undertaking in the same way by requiring them to dress neutrally.
the rule is not applied differently to
Achbita: therefore no direct
discrimination.
Achbita (cont.)
Indirect discrimination? It is not inconceivable that the apparently neutral obligation results in persons adhering to a particular religion being put at a particular advantage
Objective justification?
Court: a policy of neutrality must be considered legitimate, e.g. in view of freedom to conduct an enterprise. In particular for employees in direct contact with customers
Prohibition of wearing visible signs is appropriate to ensure neutrality policy, provided it is consistently and systematically applied
Necessary? Is the prohibition restricted to what is strictly necessary?
Come to conclusion it is justified. yes
|Age
In case of age: no closed system of exceptions in case of direct discrimination:
Article 6(1): Member States may provide that differences of treatment on grounds of age shall not constitute discrimination, if, within the context of national law, they are objectively and reasonably justified: (ages changes with time)
- by a legitimate aim, including legitimate employment policy, labour market and vocational training objectives,
- and if the means of achieving that aim are appropriate and necessary. (proportional)
|Age (cont.)
Examples of allowed differences:
Art. 6(2):
- For young persons, older persons and persons with caring responsibilities, in order to promote their vocational integration or ensure their protection
- Fixing of minimum of age for access to employment or to advantages
- The fixing of a maximum age for recruitment based on training requirements for the post in question or the need for a reasonable period of employment before recruitment
Age: Kücükdeveci judgment page on 235 of reader
The disputed scheme: periods of work before the age of 25 were not taken into account for calculating the period of notice
Court: this is a form of discrimination: persons are treated less favourable on the basis of age.
Objective justification?
- Legitimate aim?: it is a social policy objective, to give young people more chances on the labour market
- appropriate and proportionate?
the condition applies to all persons who joined the undertaking before 25, whatever the age at the time of dismissal (§ 41)
it makes no difference between young people who enter active life early after little or no vocational training, and persons who start work later after a long period of training (§ 42):
therefore: not appropriate and proportional
Kücükdeveci
Problem: a directive does not have horizontal effect.
Court: the principle of non-discrimination is a general principle (e.g. art. 14 ECHR)
- the national court has to disapply national law if it is inconsistent with this fundamental principle
- The principle has horizontal effect
- it gives the corresponding provision of Dir. 2000/78 indirectly horizontal effect
V The EU Charter of Fundamental rights
EU Charter of Fundamental Rights
Includes 50 articles with fundamental rights
Charter is a declaration of Council, but since 2009:
Article 6 TEU: the Charter shall have the same legal value as the Treaties
Some articles do not provide concrete rights
Article 16 Freedom to conduct a business
The freedom to conduct a business in accordance with Union law and national laws and practices is recognised.
A few articles are strongly worded
Article 21 Non-discrimination
1. Any discrimination based on any ground such as sex, race, colour, ethnic or social origin, genetic features, language, religion or belief, political or any other opinion, membership of a national minority, property, birth, disability, age or sexual orientation shall be prohibited.
- Within the scope of application of the Treaties and without prejudice to any of their specific provisions, any discrimination on grounds of nationality shall be prohibited
Egenberger
Problem:
A directive does not have horizontal effect.
However: when a Charter provision is unconditionally and sufficiently clearly worded (i.e. provides a subjective right), it can be used to give de facto horizontal effect to the directive provision that elaborates this principle
This is the case with article 21 of the Charter in relation with Directive 2000/78
hc deel 2
Which grounds:
1 Gender art. 157 TFEU and Directive 2006/54/EC and art. 21 Charter
2 race Directive 2000/43/EC and 19 TFEU and art. 21 Charter
3 age directive 2000/78/EC ‘framework directive’ and art. 21 Charter and 19 TFEU
4 religion directive 2000/78/EC ‘framework directive’ and art. 21 Charter and 19 TFEU
5 disability directive 2000/78/EC ‘framework directive’ and art. 21 Charter and 19 TFEU
6 sexual oriental directive 2000/78/EC ‘framework directive’ and art. 21 Charter and 19 TFEU
Art. 21 EUCFR has broad scope, dus meerdere voorbeelden kunnen er onder vallen.
Which grounds:
1 Gender art. 157 TFEU and Directive 2006/54/EC and art. 21 Charter
2 race Directive 2000/43/EC and 19 TFEU and art. 21 Charter
