A Range of Community Rights - Assignment Example

EU Law Case Scenario Ans Article 12 lays out a general principle of non discriminatory conduct to be applied to all EU citizens, in freely moving throughout the European Union. Directive 2004/38 has expanded the scope of Articles 12 and 18 with new provisions for the free movement of persons within the EU. The major issue that arises in the case of both Derek and Sonia 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 Blum1 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 Derek, Sonia and Kate, who will all qualify as workers and will be entitled to a range of community rights applicable in all Member States2. In the sphere of equal pay for equal work, the scope of Article 141 is wide and also covers part time employees Derek’s work as a part time worker could therefore entitle him to the same benefits of income support as French nationals, while Sonia’s work may entitle her to receive equal days of holiday as French nationals, and there may be a breach of Article 141, especially in Derek’s, since no need of the undertaking/s (the café) exists to justify a discriminatory policy in wages or benefits towards British and French nationals3. Derek may also be able to claim income support on the grounds of this being a social advantage available to all workers within France.4 The only hindering factor may be that Derek left employment voluntarily, which may inhibit recovery. As Ackers has pointed out, those not already employed in EU-15 countries will fall victim to an unseen hierarchy where they will be at the bottom.5 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.”6 This could also include the denial of the family Metro card and less holidays a year for Sonia, both of which are being denied on the basis of nationality. Another important issue that arises in this scenario is the language requirement in the case of Derek, to hold a National Certificate of Proficiency in French. Derek was asked to take a language test for the job in the French bank, but he may have difficulty in establishing discriminatory conduct in selection on the basis of the requirement to possess a national language proficiency certificate. While the fact that he has been found eligible only for employment in a less well paid job at another bank could be constituted as indirect discrimination, the language issue is not likely to be interpreted as such. This issue was examined in the case of Groener7 as to whether the requirement for language could constitute indirect discrimination? However the Court held no discrimination, and applying this precedent in Derek’s case, it appears unlikely that the requirement for holding the National Certificate of Proficiency would be a significant issue, especially since Derek has been able to obtain employment elsewhere. Article 149 of EC Treaty provides for education, encouraging cooperation between member states and where necessary “supporting and supplementing their action”8. One of the goals underlying the policy of community education is to encourage the free mobility of students and instructors within the European Union9. Equal treatment was mandated for all students within the European Union in matters of access to education, as in the cases of Lair10 and Brown11. Since Matthew is the child of two immigrant parents, Derek and Sonia, will be entitled to educational benefits12 similar to other workers in France, which will include the facility of student grants.13 But in order to prevent abuse, the ECJ in the cases of Lair and Brown cited above, allowed restrictions on maintenance grants. This may affect Matthew adversely, because it would apply to all kinds of concessions in fees available to students and may disallow a concession in terms of paying the course fee, because he is not a French national and such benefits may be available only to them. In reference to the alleged reasons for deportation, Derek and his family may have grounds to contest it. 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.”14 Under Article 39, in certain instances the restriction of the rights of workers to free movement within the European Union may be justified, such as on grounds of public policy.15 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 Duyn16. Since Derek has engaged in illegal financial conduct this aspect would be taken into consideration. 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.17 Derek and Matthew’s actions may not constitute such a flagrant violation of public policy as to merit deportation. In Kate’s case, the allegation that her workplace was an illegal brothel may justify her losing her job, but not necessarily being deported if she was unaware of its use. Moreover, the rights of workers are recognized18 including the right to residence19 and the same rights are extended also to Matthew under Directive 2004/38. Therefore, it is possible that all four people can claim the right to remain in France on this basis. Ans 2: The major issue in this scenario is the lower pay that Sonia, as a female, is receiving in comparison to her male colleagues who are doing the same kind of work and have the same qualifications and experience. This will constitute a breach of Article 141, which clearly provides that “each member state shall ensure that the principle of equal pay for male and female workers for equal work or work of equal value is applied.”20 Article 1/1 of Directive 75/117 further clarifies the meaning of equal pay for equal work as “the elimination of all discrimination on grounds of sex with regard to all aspects and conditions of remuneration” when the same level of work is being performed to which equal value is attributed21. This would apply in Sonia’s case. Article 39 is specifically applicable to this case is also horizontally effective.22 Article 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 work23. Regulation 1612/68 may be especially applicable to Sonia24, in terms of the occupational pension scheme because this Regulation mandates an equality in “social and tax advantages” under rights available to a worker. The company claims that the grounds for such a differential policy between males and females lie in the fact that female employees retire at an earlier age and their pension is paid earlier. 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.25 But in this instance, there does not appear to be any real need on the part of the undertaking, hence it may be difficult for the organization to justify why differential pay rates are being applied to men and women on the basis of the occupational pension. 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.26 Therefore, in alleging discrimination in the payment of wages on the basis of differing occupational pensions, 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. Differences in pay between men and women must therefore be justifiable by the French company on grounds of social policy. For example, the ECJ has also pointed out that member states are concerned that their social security systems including unemployment benefits and income support, 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.27 If the Company can justify the application of a differential pension policy which in turn impacts upon the differential pay schemes, it is only then it can justify its position28. Sonia may have excellent grounds to contest refusal of employment for the finance job by applying the provisions of Article 141, because the Company has given the job to a male employee with less experience, and the reason appears to be purely on the basis that she is a lady. This will be in contravention of the requirement of Article 141 of equal pay for male and female workers for equal work and can be contested. Since Directive 75/117 further requires the elimination of all discrimination on the basis of sex, but the denial of the job to Sonia appears to be conditioned by discrimination on grounds of her sex, she may have a good case to contest denial of the job. Where Monique is concerned, a lower level of pay may be justified to some extent when compared to full time workers, because the provisions of Article 141 will only apply to any discrimination in terms of equal pay for equal work. Since Monique is a part time employee, she will receive less pay. But in the case of Levin29, part time workers were also deemed to be covered under the provisions of the Treaty and social and tax advantages were deemed to also apply to “areas as divers as entitlement to social security benefits30” On this basis, while she may also be entitled to benefits enjoyed by other employees, this does not necessarily imply that she can be entitled to equal pay. In this instance, the Company can argue that the sex of the employee is not a factor in the pay; it is merely a coincidence that the other receptionists are male. The difference in pay is on the basis of less hours worked, since Monique is a part time employee. As a result, the Company is in a position to justify why Monique is being paid less as compared to the othe reeceptionists, i.e, because she is working part time. But where Sonia is concenred, she has excellent grounds to contest discrimianiton under the provisions of Article 141, both for receiving lower ay for comparable work, as well as for being denied a job purely on the basis of her sex, which amounts to discrimination. Bibliography Books/Journal Articles: * Ackers, H.L. (1998) Shifting spaces: Women, citizenship and migration within the European union. Bristol: Policy press * De La Porte, Heleen Andre, 1997. Student Mobility within the European Union 19, Vocational Training: European Journal, p 63 * Dougan, M, 2001. “Free Movement: the work seeker as a citizen.” 4, Cambridge Yearbook of European Legal Studies, 93 * Paul and DeBurca, 2003. EU Law: Text, cases and materials, Oxford University Press Cases cited: * 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 * Cases 115 & 116/81 Adoui and Cornuaille * Case C-413/99 Bambast * Case 41/74 Van Duyn * Case 152/73 Sotgiu v Deutsche Bundespost [1974] ECR 153 * C-31/93, Nolte v Landesversicherungsantaldt Hannover [1995] ECR I 4625 * C-444/93, Megner and Scheffel v Innungskrankenkasse Vorderpfalz [1995] ECR I 4741 * Casagrande, Case 9/74 [1974] ECR 773 * Castelli, Case 261/83 [1984] ECR 3199 * Dona v Mantero [1976] ECR 1333; * Fiorini, Case 32/75 [1975] ECR 1085, * Groener 378/87 (1989) ECR 3967 * K.B. v. NHS Pensions Agency , Case C-117/01, http://www.pfc.org.uk/node/361; * Lair Case 39/86 (1988) ECR 3161 * Lebon, Case 316/85 [1987] ECR 2811 * Levin Case 53/81 (1982) * Lowrie Blum Case 66/85 (1986) ECR 2121 * Michel S, Case 76/72 [1973] ECR 457 * Ugliola Case 15/69 (1969) ECR 63 * Walrave, case 38/74 [1974] ECR 1405 Read More