The Legal Issues Scenarios - Case Study Example

 The Legal Issues Scenario EU law permits free movement of workers within the European Community, under Article 39, while according to Article 18, “every citizen of the Union shall have the right to move and reside freely within the territory of the Member States.” The case scenario provided deals mainly with the issues arising out of a German couple employed in the UK, who also have a son Max and domestic help Klara, who is a Czech. The legal issues arising in this case are predominantly related to employment. In the case of Heinrich and Christine, the issue of Equal Pay for equal work arises. “Top off” social security and unemployment benefits arise in the case of Heinrich while in the case of Christine, discrimination in selection, mandatory language tests and pension requirements are at issue. In the case of Max, the legal issue that arises is the right to equal access to loans for education, while in Klara’s case there may be the problem of sex discrimination. Additionally, legal issues connected to reasons for proposed deportation of the family must also be taken into account. Article 18 of the EC Treaty allows the right to free movement of persons within the European Union, while Article 12 lays out a general principle of non discriminatory conduct to be applied to all EU citizens. Directive 2004/38 has in fact expanded the scope of Article 12 and has put in place new provisions for the free movement of persons within the EU. Closa has argued for a supranational democratic citizenship for the European Union, on the basis that a citizenship regulated by national considerations is undemocratic in its origin.1 The major issue that arises in the case of both Christine and Heinrich is the question of equal pay for equal work, which is mandated by Article 141 of the EC Treaty. However, before this aspect can be assessed, it must be determined whether they first qualify as “workers”. A general definition of worker has been set out in Lowrie Blum2 stating the essential feature that characterizes a worker is that “for a certain period of time a person performs services for and under the direction of another person for which he receives remuneration.” This will be applicable to Heinrich, Christine and Klara who will all qualify as workers and will be entitled to a range of community rights applicable in all Member States3. In the sphere of equal pay for equal work, the scope of Article 141 is wide and also covers part time employees - the ECJ has set out a test of objective justification for courts to apply, whereby a discriminatory policy in wages and benefits will be deemed to be a breach of Article 141 unless it may be objectively justified on the basis of a real need of the undertaking.4 There is a breach of Article 141, especially in Heinrich and Christine’s case, since no such need of the undertaking/s exists. Article 39 is specifically applicable to this case is also horizontally effective.5Article 39(2) applies to discriminatory aspects and “abolition of any discrimination on nationality between workers of the member states as regards employment, remuneration and other conditions of work and employment.” Regulation 1612/68 also mandates equality of treatment in employment and no discrimination in conditions of work6. The criterion laid down in the case of Sogtiu was that the requirement for equality did not refer only to over discrimination on the basis of nationality but also included “all covert forms of discrimination which, by the application of other criteria of differentiation, lead in fact to the same result”7 Both Heinrich and Christine have a solid case to claim discrimination in the conditions of employment – Heinrich working ten hours more per week and Clara getting only a part time job as teacher in spite of passing the required test.8 On the issue of non receipt of “top up benefit”, Regulation 1612/68 may be applicable to Heinrich9, which mandates an equality in “social and tax advantages” under rights available to a worker. In the case of Levin10, part time workers were also deemed to be covered under the provisions of the Treaty and said social and tax advantages were deemed to also apply to “areas as divers as entitlement to social security benefits11” Therefore, Heinrich may be able to claim these top up benefits on the grounds of their being a social advantage available to all workers within the UK.12 The regulation may also apply in the case of Christine, who is a part time employee , yet being denied occupational pension. There is a case for discrimination, as in Preston and Ors v Wolverhampton Healthcare NHS trust & Ors13 where a group of women succeeded in getting access to pension scheme despite being part time workers. In the case of Vroege, an occupational pension scheme was deemed to qualify under Article 141.14 Christine qualifies as a worker in the UK and under Article 141, may be entitled to pension benefits under the occupational pension scheme. Directive 79/7 has in effect replaced discriminatory rules of member states on social security pension schemes and introduced neutral rules to allow women equal access to benefits. Christine can also challenge her employer’s reasons for denial of pension, on grounds of her having to leave to have children. Whiteford has pointed out the need to allow equal benefits from the social security system to women, especially in appreciation of their non financial contributions to society in giving care.15 Regulation 1408/71 has also governed the regulation of social security so that there is parity for workers within the European Union. However, it must be borne in mind that as far as allowing access to social security benefit and pension schemes is concerned the ECJ has demonstrated a cautious policy and allowed objections by member States on grounds of social policy.16 Therefore, in alleging discrimination in the pension scheme, it must be noted that a restriction may be deemed valid if a Member State argues that it is a necessary part of the social policy. The same criteria would also apply in the case of unemployment benefits for Heinrich17. The aspect that may stand in opposition to Heinrich claiming unemployment benefits is the factor that the ECJ has also pointed out, wherein member states are concerned that their social security systems including unemployment benefits, are being severely stressed due to the influx of “immigrants entering from other countries whose social benefits are less generous”, thereby draining the resources available for its own citizens.18 However Art 7(2) of Regulation 1612/68 may be applied to actively seek these benefits for Heinrich, because he is a resident of UK by virtue of his having been employed there and is entitled to receive “social and tax advantages”. The only hindering factor may be that Heinrich left employment voluntarily, which may inhibit recovery. As Ackers has pointed out, especially in the case of women, those not already employed in the EU-15 countries will fall victim to an unseen hierarchy where they will be at the bottom.19 It is possible that Christine will have a better chance at recovering work related benefits as compared to Heinrich, whose voluntary leaving of employment will hinder his chances. Christine has been asked to take a language test , but she may have difficulty in establishing discriminatory conduct on the basis of the requirement to take an English language test. While the fact that she has been found eligible only for part time employment could be constituted as indirect discrimination, the language issue is not likely to be interpreted as such. This issue examined in the case of Groener20 as to whether the requirement for language could constitute indirect discrimination? However the Court held no discrimination, and Article 3 will also apply, hence Christine cannot use these grounds and is unlikely to succeed on those grounds. Article 149 of EC Treaty provides for education, encouraging cooperation between member states and where necessary “supporting and supplementing their action”21. Articles 126 and 127 of the EU are specifically directed towards enhancing community goals in education and one of the goals underlying the policy is to encourage the free mobility of students and instructors within the European Union22. Directive 93/96 will apply in Max’s case, because it allows right of free movement. However, this Directive may include restrictions on entitlements to educational grants. Equal treatment was mandated for all students within the European Union in matters of access to education, as in the cases of Lair23 and Brown24. However, there is a distinction that arises between a worker and a student in the European Union, in terms of claiming benefits that accrue to workers under social security and benefit schemes, which can also be appropriated by students despite the fact that their work contribution may be marginal or insubstantial. In order to prevent abuse, the ECJ in the cases of Lair and Brown cited above, allowed restrictions on maintenance grants. This could have affected Max adversely, however after the provisions of Article 12 on general non discrimination have been enhanced with Directive 2004/38, new provisions are in place to offset limitations on scholarships and grants available to non UK nationals. A significant case in Mark’s support is R (Dany Bidar) v The London Borough of Ealing & the Secretary of State for Education and Skills25 where requirement of residence in order to qualify for loan was deemed to be indirect discrimination. Thus, under new Directive 2004/38 and with support of Bidar, the denial of student loan to Max could construe as indirect discrimination and he may be entitled to the loan to pursue his education. Moreover, as the child of two immigrant workers, Max will be entitled to educational benefits26 similar to other workers in the UK, which will include the facility of student grants.27 In the case of Klara, the issue of illegal entry could have been an issue but for the fact that as an employed worker, she can avail fully of the range of benefits under Article 39. Unlike Christine and Max, she may not be considered as a valid member of Heinrich’s family under Article 2(2) of Directive 2004/38 since she is the domestic help. Directive 2000/78/EC prohibits discrimination in employment, but excludes sex, therefore this may not work in Klara’s favor to support her case of sex discrimination in the rejection of her application as security guard. The grounds are also not very strong under Directive 76/20727b, which mandates that the “equal treatment principle” would include discrimination on the grounds of sex, since this Directive does not appear to be horizontally applicable and only appears to perpetuate gender stereotyped roles27c, because it does not impose obligations on employers, as pointed out in the case of Bilka27a Further weakening Klara’s case is the precedent set in Johnston v Chief Constable of the RUC, where the female sex of applicants was deemed to be a valid factor in refusal of appointment in security positions due to the physical dangers involved27d. Moreover, since she has applied for social security benefits on falsified documents, she is being deported. But applying the criterion laid out in the case of Rutili28 “if the person in question poses a very serious threat to public policy, then the State should be able to justify a deportation order as required under Directive 64/221” it may be noted that Klara would hardly constitute such a threat. Heinrich’s application for railcard should have also been granted because Article 39 prohibits discrimination and Directive 2000/78/EC prohibits discrimination in employment. Since Heinrich is employed in a full time job as postman, he is entitled to these work related benefits and denial could constitute indirect discrimination28a. Unless some strong justification can be provided, such as economic factors mandating such an action28b or unless it is justified for administrative convenience28c , Heinrich could have a good case for alleging indirect discrimination. In reference to the threatened deportation of other members, Directive 64/221, article 28 offers protection from expulsion and in the case of Adoui, it was stated that “reasons given for expulsion must be …detailed to enable the person to protect interests.”29 Moreover, the question that must be considered is whether the conduct of the members of the family indeed justifies deportation. Under Article 39, in certain instances the restriction of the rights of workers to free movement within the European Union may be justified.30 Article 3(1) of Directive 64/221 states that such measures are undertaken on grounds of protecting public security and will be decided on the basis of conduct of individual, as was the case in Van Duyn. The issue in that case also concerned membership in an undesirable organization, as is the case with Christine and the Court held that the individual’s “present association” would be considered a part of his/her personal conduct.31 But discriminatory conduct by member states in regard to deportation of workers from member States has now been made more difficult in recent ECJ decisions.32 Although Klara, and Max will add to the grounds for deportation by their actions, yet the nature of those actions do not constitute such a flagrant violation of public policy as to merit deportation. However, Heinrich’s conviction for drug dealing will impact adversely on his chances of remaining within the UK. Possibly, he may be able to rely on the case of Bouchereau, where a previous conviction of an individual is not to be taken into account unless posing a significant threat.33 Moreover, overriding these concerns about the conduct of the family, there are the provisions of Article 39, where the rights of workers are recognized and Heinrich, Christine and Klara qualify as workers while Max is a valid member of the family, to whom the same rights are extended under Directive 2004/38. In the case of Bambast the rights to residence were also deemed valid for other members of the family apart from the spouse.34 Therefore, it is possible that all four people can claim the right to remain in the UK on this basis. From an overall perspective however, there are also chances that Heinrich and Christine may find it difficult to plead for their case to stay. Christine’s membership in an extreme right wing party may be considered a significant enough violation because of the recent terrorist threats and enhanced security measures which are being implemented within the UK and other Member States. In the case of Bouchereau it was held that Article 3(2) required the authorities to examine such deportation cases “from the point of view of the interests inherent in protecting the requirements of public policy”35 and terrorism and terrorist activity of extreme right wing and left wing organizations are considered a significant threat in public policy. In the case of Ruitli it was held that the nature of the activity had to be “more than the disruption which any breach of the law causes.” 36 Heinrich’s involvement in drug dealing could be constituted to meet this criterion, since public policy in the UK is now clamping down on drugs. Although the ECJ has made deportation much more difficult, it has also demonstrated reticence where public policy of the Member States is concerned, therefore there is a good chance that they may uphold the UK Government’s decision to deport the family. Since Max has not been a worker within the UK, it will be difficult for him to get permission to stay if his parents are deported and Klara’s chances are seriously affected by her illegal status. Bibliography Cases: * Angonese, Case C-281/98 [2000] ECR I-4139; [200] 2 CMLR 1120 * Bilka Kaufhaus GmbH v Weber Von Hartz (1986) IRLR * Bosman Case C-415/93 [1995] ECR I-4921 * Brown Case 197/86 (1988) ECR 3205 * Case 152/73 Sotgiu v Deutsche Bundespost [1974] ECR 153 * C-444/93, Megner and Scheffel v Innungskrankenkasse Vorderpfalz [1995] ECR I 4741 * Case C-209/03 R (Dany Bidar) v The London Borough of Ealing & the Secretary of State for Education and Skills * Case C-31/93, Nolte v Landesversicherungsantaldt Hannover [1995] ECR I 4625 * Case 41/74 Van Duyn * Cases 115 & 116/81 Adoui and Cornuaille * Case 36/75 Rutili * CASE 170/84 Bilka Kaufhaus * Case 30/77 R v Bouchereau * Case C-413/99 Bambast * CASE C-127/92 Enderby * CASE C-189/91 Krishammer * CASE 96/80 Jenkins * Casagrande, Case 9/74 [1974] ECR 773 * Castelli, Case 261/83 [1984] ECR 3199 * Commission v France (Code Maritime) [1974] ECR 359 * Dona v Mantero [1976] ECR 1333 * Fiorini, Case 32/75 [1975] ECR 1085 * Groener 378/87 (1989) ECR 3967 * Lebon, Case 316/85 [1987] ECR 2811 * Levin Case 53/81 (1982) * Lair Case 39/86 (1988) ECR 3161 * Lowrie Blum Case 66/85 (1986) ECR 2121 * Michel S, Case 76/72 [1973] ECR 457, * Preston and Ors v Wolverhampton Healthcare NHS trust & Ors& Midland Bank plc (1997)IRLR 233 CA * Walrave, case 38/74 [1974] ECR 1405 * Ugliola Case 15/69 (1969) ECR 63 * Vroege (1994) IRLR 651 Books/Articles: * Ackers, H.L. (1998) Shifting spaces: Women, citizenship and migration within the European union. Bristol: Policy press * Closa, Carlos. Supranational citizenship and democracy: Normative and empirical Dimensions In European Citizenship: An international Challenge (M.Torre, ed) Kluver Law International * De La Porte, Heleen Andre, Student Mobility within the European Union Vocational Training 19 European Journal, p 63 * Dougan “Free Movement: the work seeker as a citizen.” (2001) 4 Cambridge Yearbook of European Legal Studies 93 * Paul and DeBurca. EU Law: Text, cases and materials pp 708 * Steiner “The Right to Welfare: Equality and Equity under Community Law” (1988) 10 European Law Review 21 * Tillotson, John & Foster, Nigel ‘Text Cases and Materials on European Union Law’, pp 323 * Whiteford, Elaine, 1997 . Conservatism rises again:whether women providing full time nursing care of spouse in their home fall within the scope of working population for purposes of Directive 79/7 19, Journal of Social Welfare and Family Law, pp 361 Read More