European Union Discrimination Law - Essay Example

?European Union Law Table of Contents Question 3 Question 3 8 Reference List 13 Question European Union (EU) has created several pieces of legislation in order to combat discrimination practices on the basis of cultural and national origin, religion, gender, disability and age. As determined by the authoritative bodies of EU, a significant approach to enable effective application of legislation can be illustrated in the adoption of directives. With concern to anti-discriminative policies, in Europe, the directive for equivalent pay for male and female employees was first implemented in the year 1975. Based on similar grounds, directive 2004/113/EC was implemented in order to expand the protection against gender discrimination in different areas of the society1. In the light of discrimination, Article 141 TFEU plays a significant role by obligating EU member states to ensure any kind of discrimination with respect to sex must be prohibited. In this context, Article 157 deals with maintaining ‘equal pay for both male and female workers’ in an organisation for similar job responsibilities2. Discrimination practices in employment can occur in different situations and under different conditions. For instance, when an employee receives treatments which segregate them from other employees bearing same job responsibilities, on the basis of subjective or assimilated criteria such as gender, nationality, religion, disability, age, marital status, parental status, political views, socio economic view and trade union activities, it may be referred to as discriminatory practices. Discrimination and equality are governed by the key principle that an employee must receive equal treatment. Contextually, the code of non-discrimination is used to gender oriented discriminations concerning equal pay for male and female in Article 157 TFEU. This Act is used for avoiding pay gap between the earnings of men and women in an organisation. Under Article 157, an employee is regarded as an individual who performs certain activities under the guidance of another individual in exchange for money for a certain period of time. Therefore, once an individual is considered an employee as described in Article 157 TFEU, the articles of the treaties can be applied to him/her3. Article 157 TFEU provides an explicit commitment to equal pay for males and females, stating that equal pay without discrimination on the basis of gender denotes that the pay for similar kind of work must be calculated on the basis of the same unit of measurement for each employee. Equal pay also denotes that the pay for work at certain time rate must be equal for similar kind of job. With respect to Article 157 TFEU, pay comprises not only the basic remuneration committed to the employee, but also his/her overtime pay, extras, special advantages, travelling grants, rewards for appearing in training, termination payments and job-related pensions. Thus far, this has been constantly interpreted by legal bodies to imply that there must be no discrimination on the basis of gender over pay. With respect to any discrimination regarding pay, the European courts consider the link between the notion of pay which is articulated in Article 157 and the practiced social security system4. With respect to discrimination practices, there are two types of acts that can be performed by an organisation which are direct discrimination and indirect discrimination. In this context, it can be stated that Article 157 of the TFEU forbids both direct discrimination on the bases of gender in the area of pay and indirect discrimination. It is worth mentioning in this regard that direct discrimination happens when an individual is unequally treated on the basis of gender; for instance, when a woman is paid less than a man in a similar job. On the other hand, indirect discrimination refers to the discrimination which is the consequence of gender neutral norm, which tends to hamper an individual’s interests on the basis of sex5. With respect to the case of Kate, it can be observed that she was employed in the personnel department with a salary which was lower in comparison to other male personnel in the marketing department. Article 157 TFEU states that pay for work at certain time rate must be equal for similar kind of job responsibilities. In this circumstance, the job responsibilities of Kate in the personnel department are not similar with the job of employees in marketing department. There is huge differences in the nature of job, thus the claim of Kate to receive equal payment on the basis of sex discrimination is not applicable in this case in accordance with Article 157 of TFEU which specifies that equal pay is liable only for equal jobs. Therefore, due to dissimilar nature of job responsibilities in the personal department and the marketing department of the organisation, Kate could not take action against the company for sex discrimination6. Similarly, considering the case of Sharon, it can be observed that she is a part time employee in the marketing department when she observed that her rate of pay was less than other full time employees in the same department. Furthermore, unlike full time employees, she was excluded from sick pay. Analysing the situation, it can be affirmed that this is the case of indirect discrimination. In the EU law, any treatment of part time employees which is less favourable in comparison to other full time employees creates indirect discrimination and infringes the legislative policies enacted, except such practices are justified under reasonable grounds by the organisation. With regard to part time pay, equal treatment comprises compensation pay, seniority or service oriented increments on a similar scale, overtime pay, constitutional redundancy payments and sick pay. In this regard, Article 157 TFEU specifies that there can be no discrimination due to part time and full time employment, except the different treatments demonstrated by a company is justified on impartial basis. Thus, in this context that Sharon can take legal action against the company for getting involved in indirect discrimination practices owing to the fact that she was discriminated on the basis of work. In order to determine whether there is discrimination practiced within the company, a standard pay policy against which such assessment can be made is needed7. Regarding the third case of Tina, it is apparent that the company rejected her in order to restore gender imbalances within the department. It is worth mentioning in this regard that under Article 153 TFEU, an organisation must ensure equality between male and female workers with respect to labour market opportunities in correspondence to the eligibilities of the candidates. Equal opportunity denotes equal distribution regarding prospects in terms of education, training, employment, career growth and use of authority without considering gender, nationality and religion among others. Contextually, European Parliament encompasses provisions to apply the standard of equal opportunities and equal treatment of male and female with respect to occupation. The objective of equal employment opportunity is to ensure quality and productivity of organisations intended for strengthening social cohesion and inclusion. Thus, with respect to the situation of Tina, it can be stated that it is a case of violation of equal opportunity. According to EU law, every individual, irrespective of gender must be assisted to compete equally according to their individual talents. Hence, Tina can certainly take legal action against the company for breaching equal opportunity of employment and also for engaging in sex discrimination by not providing her equal chance in assessing her talent8. Question 3 The completion rules in European Union (EU) nations can be considered in relation to four broad aspects which are anti-competitive treaties and alliances, abuse of market power, market examinations and merger control. Among these four aspects, the second aspect, i.e. abuse of market power deals with the anti-competitive practices often conducted by organisations in the EU region. Under this aspect, the Competition Act of EU forbids the exploitation of a dominant market position of an organisation. The concept of abuse is regarded as any conduct, practiced by a leading organisation, which permits it to take advantage of the market position irrespective of the negative impact caused by the strategies on the competitors or customers or the industry structure as a whole. There are several forms of conduct which can be stated as abuse of market power, in this context, such as denial to supply in order to avoid free competition, exclusive purchasing or supply or inadequate distribution contract in order to create barriers of entry, pricing with exclusionary impacts and implementing biased standards upon independent suppliers. The term ‘dominant position’, in the context of EU law, is considered as a position of strong economic strength. Dominant position is determined by the level of competition in a particular market, the market share held by the organisation, position among other players in the market and bargaining power of customers. On the basis of the rule of thumb, dominance is not usually regarded to exist with less than 40% market share. Dominant position can be held either separately or between different organisations with satisfactory financial and structural association. However, this dominant position can be abused by certain conduct. Under Article 101 of the TFEU, the Office for Fair Trading (OFT) is held mainly liable for the implementation of Competition Law with respect to abusive conducts. Article 101 of TFEU hereby prohibits cartels and other contracts that could disrupt the effective competition in the European market9. Article 101 of TFEU was formerly termed as Article 81 which was later replaced in the year 2004. Article 101 specifies regulations vis-a-vis contracts, decisions taken by organisations concerning the activities of undertakings and concerted practices which can further restrict competition and exploit the dominant position gained by an organisation. The objective of the Article is thus to increase the responsibility of organisations and ensure transparency in the process of undertakings in order to ensure that their business conducts do not negatively impact the effective competition and breach EU rules in the European area. In order to avoid any kind of misuse of the market position, the competition establishments of Europe, comprising European Commission and general courts undertake greater responsibilities in safeguarding that the EU competition rules conform to their corresponding activities10. Article 101 of TFEU includes several elements which must be satisfied in order to make a particular conduct or practice legal. First and foremost, there must be a contract, decision or concerted practice identifiable between undertakings which might impact trade or can prevent or distort competition within EU member countries. Under Article 101 of TFEU, ‘undertaking’ is generally interpreted as any individual convoluted in economic activities, regardless of its legal status. Public sector organisations involving in economic activities can further be termed as undertakings for the purpose of legal enforcement. A parent organisation and its subsidiary or organisations under a single umbrella can usually be termed as a single undertaking where they perform business activities as an economic whole7. The prohibition of business conduct covers not only formal written contracts, but also other types of informal provisions or understandings, either through oral or written forms. These contracts are lawfully enforceable by every business organisation and are considered to establish treaties between the affiliates of trade association. The prohibition also applies to certain rules and regulations of organisations which restrict commercial freedom of affiliates associated with a trade association treating such conducts as ‘concerted practices’. The occurrence of concerted practices can be majorly observed in oligopolistic markets. One example of concerted practices is when a company in oligopoly market announces price on the basis of underlying assumptions that other market players will also amend their pricing accordingly. However, under Article 101 of TFEU, these kinds of practices which can harm competitive environment can be proscribed11. According to EU law, all contracts between undertakings and concerted conducts which may impact on the business between EU member nations and which have impact on hindrances, restrictions and distortions of rivalry within common market can be termed as illegal. Under Article 101 of TFEU, whether a given contract hampers, distorts or prevents competition, depends on a vigilant examination of the facts of each individual case comprising market structures and features. The following are the types of contracts which are considered as violation of prohibitions of anti-competitive agreements in the EU law as applied under Article 101 of TFEU: 1. Direct or indirect fixing of selling prices and other business circumstances 2. Collusive tendering 3. Manipulation of production, technological improvement and investment 4. Manipulation of source and supply in share market 5. Resale price preservation 6. Implementation of contradictory conditions to equivalent contacts with other business organisations; thereby, positioning them at a competitive disadvantage 7. Use of market allocation 8. Use of Anti-competitive business rules and commendations 9. Implementation of rules of overriding entry principles12 It is in this context that the Competition Act of EU provides a contract which is exempted from the violation of EU Law if it fulfils certain conditions. For instance, the competitive disadvantages that might arise due to anti-competitive conducts must be compensated by other economic advantages which must further accumulate to customers. The EU law also necessitates that the contract should include the least restrictive conducts of accomplishing the related advantages. A conduct is unlikely to be exempted from being considered illegal if organisations cannot demonstrate that their practices will not completely restrict active competition in the market for concerned products or services. Hence, conducts which fulfils these criteria are considered as legal and valid13. Certain provisions described above can be declared legal either in the case of a contract between undertakings or in the case of any decisions taken by business associates of undertakings or in the case of any concerted conduct, or group of concerted conducts. For instance, price fixing or market allocation can be possible among a group of organisations within a single undertaking. Furthermore, business conduct that contributes to the overall development of manufacturing and distribution of goods, promotion of technical and economic progress and subsequently allows customers fair share of resulting advantages, can be termed legal14. Reference List Bailey, D., 2012. Restrictions of Competition by Object under Article 101 TFEU. Common Market Law Review, Vol. 49, pp. 559-600. Burri, S. & Schiek, D., 2009. Multiple Discrimination in EU Law. The European Network of Legal Experts in the Field of Gender Equality. [Online] Available at: http://ec.europa.eu/justice/gender-equality/files/multiplediscriminationfinal7september2009_en.pdf [Accessed January 04, 2013]. Brouwer, O. & et. al., 2008. Developments in EC Competition Law in 2007: An Overview. Common Market Law Review, Vol. 45, pp. 1167-1205. Costello, C. & Davies, G., 2006. The Case Law of the Court Of Justice in the Field Of Sex Equality Since 2000. Common Market Law Review, Vol. 43, pp. 1567-1616. Craig, P. & Burca, G., 2007. EU Law: Text, Cases and Materials: Text, Cases and Materials. Oxford University Press. Ellis, E., 2008. Recent Developments in European Community Sex Equality Law. Common Market Law Review, pp. 379-408. Eurofound, 2011. Part-time Work. European Industrial Relations Dictionary. [Online] Available at: http://www.eurofound.europa.eu/areas/industrialrelations/dictionary/definitions/parttimework.htm [Accessed January 04, 2013]. EUR-Lex, 2010. Consolidated Version of the Treaty on the Functioning of the European Union. Official Journal of the European Union. Europa, 2011. Initiation of Proceedings. Commission Regulation. [Online] Available at: http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CONSLEG:2004R0773:20080701:EN:PDF [Accessed January 04, 2013]. European Union, 2011. EU Competition Law Rules Applicable to Antitrust Enforcement. Competition Handbooks. [Online] Available at: http://ec.europa.eu/competition/antitrust/legislation/handbook_vol_1.pdf [Accessed January 04, 2013]. Koldinska, K., 2011. Case law of the European Court of Justice on sex discrimination 2006-2011. Common Market Law Review, Vol. 48, pp. 1599-1638. Slaughter and May, 2011. An Overview of the UK Competition Rules. Media. [Online] Available at: http://www.slaughterandmay.com/media/1515647/an-overview-of-the-uk-competition-rules.pdf [Accessed January 04, 2013]. Read More