Equal Pay and Nondiscriminatory Treatment in the EU - Coursework Example

EU Law The major issues that arise in the case of Erich are the question of equal pay and non discriminatory treatment as compared to other UK workers, especially after the freedom of movement which has been allowed to workers across the European Union. Specific issues that arise are discrimination in terms of (a) issue of rail card (b) enrolling in the pension plan (c) less holidays and (d) non payment of child support benefits for part time work. In the case of Helga, the issue arising is whether requiring knowledge of a language is a discriminatory practice and whether her illegal claims for public support could constitute grounds for deportation. Educational issues are raised in the case of Sabine and Friedrich, in terms of entitlement to financial support for their education. Another issue arising in their case is whether their offences, i.e, prostitution and driving offences respectively, could constitute grounds for deportation. Although Erich, Helga, Sabine and Freidrich are German nationals, the free movement of workers throughout the European Union is permitted under Article 39 of the EC Treaty and Article 18 specifically states that “Every citizen of the Union shall have the right to move and reside freely within the territory of the Member States.” Therefore, in the context of the major issues relating to employment and education which are thrown up in this case scenario, all these German nationals are legally permitted to work in the U.K. and Article 12 also states in general that a non discriminatory code of conduct must be applied to all employees within the European Union1. From the perspective of workers, Closa argues that the preservation of national citizenship constraints is undemocratic from the perspective of EU citizenship.2 Therefore, under EU law, all these UK nationals must be treated on par with German nationals. In the first case, through the application of the provisions of Article 39, which is horizontally effective3, the case of Erich appears to suggest that EU law has been violated and discriminatory conduct has been meted out to him, because he is being treated differently from UK part time workers. Article 39(2) specifically addresses discrimination in treatment meted out to workers and mandates the “abolition of any discrimination on nationality between workers of the member states as regards employment, remuneration and other conditions of work and employment.” This would also apply in the case of the denial of the railcard to the family on the basis of their not being UK nationals, since the use of the rail card could be held to be a necessity for travelling to and fro from employment and therefore a condition of the employment itself, where discrimination cannot occur. In the case of Erich’s denial of child support income on the basis of his previous work being part time, Regulation 1612/68 may be applied, since it states that there must be no discrimination in conditions of work4 and this may also include part time work. In the case of Sogtiu it was held that ‘discrimination’ could not be restricted to overt forms of discrimination due to nationality but also includes “all covert forms of discrimination which, by the application of other criteria of differentiation, lead in fact to the same result.”5 EU law, under Article 141 is directed towards the achievement of basic employment equality principles of equal pay26 and equal treatment “as regards access to employment including promotion, vocational training and working conditions.”27 Under the provisions of this Article, men and women are to receive equal pay for equal work, with equal pay defined as any other consideration, whether in cash or in kind, which the worker receives, directly or indirectly, in respect of his employment from his employer.28 This would apply in Erich’s case at his full time bricklayer job, especially in the context of being denied admission to the pension scheme and in the fewer holidays he is entitled to, which could classify as covert forms of discrimination against non-UK nationals. Regulation 1612/68 specifically states that there must be parity in the “social and tax advantages”6 available to workers, while Article 141 mandates equal pay for equal work, even if workers are part time. Therefore, Erich may be able to claim the benefits that have been denied to him, since he has been able to subsequently find full time work as a bricklayer. But in the case of Levin, part time workers were also deemed to be eligible to receive social security benefits.7 Therefore, despite the fact that Erich was earlier working only part time and earning less , the denial of child support income during his period of unemployment may not be legally permissible. Since he is now a full time worker, he may therefore be eligible for all rights accorded to workers in the U.K., which is a part of the European Union.8 However, some limitations could arise through the application of Regulation 1408/71 which governs the payment of benefits for workers to ensure parity within the European Union. There have been cases where the member states have raised some objection on the payment of social benefits on the grounds that some restrictions are justified in keeping with the country’s social policies and the ECJ has tended to adopt a cautious policy in such instances.9 Steiner has also argued the merits of this position in so far as benefits to workers are concerned.10 In fact, the ECJ has supported the position of these Member States and highlighted the concerns that may arise in the provision of benefits, since the social security systems of the members 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.11 While it is possible that UK and Germany offer benefits on par, nevertheless benefits may not be considered when the interests of U.K.’s own citizens may be adversely affected and if this can be effectively proved, then the denial of child support and entry to the pension scheme may not necessarily be held to be discriminatory by the Courts. In the case of Helga, she could contend that denying her the teacher job on the basis of her lack of knowledge of Welsh might be discriminatory. There have been cases where such unnecessarily rigorous standards have been deemed to constitute discrimination.12 While the fact that Helga was denied a job as teacher merely on the basis of a language requirement could constitute indirect discrimination, however the issue of language requirement has not generally been deemed to be a discriminatory requirement. For example, the question of whether the requirement for passing a test in a language could constitute indirect discrimination was examined in the case of Groener13 where the Court held that no discrimination had occurred and since Article 3 may also apply in this case, Helga is unlikely to succeed in any claim. In the case of Sabine and Friedrich, the educational provisions of EU Law will apply – specifically Article 149, which encourages cooperation between member states in the achievement of educational goals for all EU citizens and where necessary, supporting and supplementing their action.14 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 Union.15 Equal treatment was mandated for all students within the European Union in matters of access to education, as in the cases of Lair16 and Brown.17 Directive 93/96 may also be applicable for both Sabine and Friedrich, because it allows right of free movement for educational purposes. However, this Directive may include restrictions on entitlements to educational grants. As the ECJ has clarified in the cases of Lair and Brown cited above, there is not much distinction between a worker and a student in EU law in terms of access to the various benefits that are permissible and allowed for workers, therefore a student may perform minimal work and avail of all the benefits available to workers. Therefore in order to prevent abuse of benefits available from the Member States, the ECJ has allowed some restrictions in educational grants for training courses. However, there is some scope of relief, especially for Sabine who has been denied a special student rate bank loan on the basis that she is not a U.K. citizen. A significant case in her support is R (Dany Bidar) v The London Borough of Ealing & the Secretary of State for Education and Skills18 where requirement of residence in order to qualify for loan was deemed to be indirect discrimination. The Directive 2004/38 could also apply in her favor and with support of the Bidar case cited above, she can contest the denial of student loan as indirect discrimination and may therefore be entitled to the loan to pursue her education. Similarly, Friedrich may be entitled as the child of two immigrant workers, to educational benefits19 similar to other workers in the U.K., which will include the facility of student grants.20 In reference to the threatened deportation of the entire family on one or other grounds, 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.”21 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.22 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 Duyn22. The issue in this case also concerned membership in an undesirable organization and the Court held that the individual’s “present association” would be considered a part of his/her personal conduct. This case shows that the personal conduct of the individual will be a significant factor to be taken into consideration in arriving at a decision on whether or not to deport, and nationality alone cannot be a grounds for deportation. Therefore, the family members’ conduct will be considered in arriving at a decision. However, the decision in Adoui makes discriminatory deportations by Member States more difficult. The convictions of Erich, Helga, Sabine and Friedrich may provide grounds for deportation by their actions which lean towards illegal activities, but the nature of those actions do not constitute such a flagrant violation of public policy as to merit deportation. But Helga’s conviction for illegal claim of benefits, coupled with the need for countries to sometimes limit their benefits as cited earlier, may impact more adversely on her chances of remaining in the U.K.. She could rely on the case of Bouchereau, where it was held that a previous conviction of an individual is not to be taken into account unless posing a significant threat23 and 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.” If Erich’s tax evasion or Helga’s illegal claim of benefits are deemed to pose a significant threat and a flagrant violation of public policy, they may be deported. 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.”24 Hence Sabine and Freidrich’s offences may not quite fit under this category of flagrant violation of public policy, because Freidrich’s driving offence and Sabine’s prostitution offence, while illegal, do not pose a significant threat . But Erich and Helga’s offences may be more serious, because they essentially are trying to gain public benefits in an unacceptable and illegal manner. By Erich trying to evade taxes and Helga trying to illegally claim benefits when she is not legally and justifiably entitled to them, they are trying to tap into the public funds that could benefit UK’s own citizens. This may be held to be a flagrant violation of public policy. However, since Article 39 recognizes the rights of workers and Erich is a worker, he is accorded certain rights under Directive 2004/38 which provides for rights to residence. In the case of Bambast25 the rights to residence were also deemed to be valid for the spouse of the workers and other members of the family and therefore they may all plead their right to stay on this basis although their success cannot be guaranteed. Bibliography Books/Articles: * 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 European Journal, 19, p 63 * Grain, Paul & Grainne De Burca, “EU Law: Text Cases & Materials” * Steiner “The Right to Welfare: Equality and Equity under Community Law” (1988) 10 European Law Review 21 * Tillotson, John and Foster, Nigel. ‘Text Cases and Materials on European Union Law’ Cases: * Angonese, Case C-281/98 [2000] ECR I-4139; [200] 2 CMLR 1120 * Bosman Case C-415/93 [1995] ECR I-4921; * Brown Case 197/86 (1988) ECR 3205 * Casagrande, Case 9/74 [1974] ECR 773 * Case C-209/03 R (Dany Bidar) v The London Borough of Ealing & the Secretary of State for Education and Skills * Case 152/73 Sotgiu v Deutsche Bundespost [1974] ECR 153 * Cases 115 & 116/81 Adoui and Cornuaille * Case 30/77 R v Bouchereau * Case 36/75 Rutili * Case C-413/99 Bambast * Case: C-31/93, Nolte v Landesversicherungsantaldt Hannover [1995] ECR I 4625 * Case C-444/93, Megner and Scheffel v Innungskrankenkasse Vorderpfalz [1995] ECR I 4741 * Case 41/74 Van Duyn * Castelli, Case 261/83 [1984] ECR 3199 * Commission v France (Code Maritime) [1974] ECR 359 * Dona v Mantero [1976] ECR 1333 * Groener 378/87 (1989) ECR 3967 * Lair Case 39/86 (1988) ECR 3161 * Levin Case 53/81 (1982) * Lebon, Case 316/85 [1987] ECR 2811 * Michel S, Case 76/72 [1973] ECR 457 * Walrave, case 38/74 [1974] ECR 1405 * Ugliola Case 15/69 (1969) ECR 63 Read More