Anti-discrimination Policy: Treaty on the Functioning of the European Union - Assignment Example

European Union Law Question Anti-discrimination Policy: Treaty on the Functioning of the European Union (TFEU). Introduction The Rome’s Treaty offers protection against discrimination related to race, as between natives of Member States and gender discrimination in pay (Article 6 and 119 of the Treaty of Rome 1957).1 Article 119 requires the Member States to promote and sustain the utilization of the ideology that all workers should receive uniform pay for equal work irrespective of their gender variations.2 In European Union (EU), the general principle provides equality for men and women as a basic right, and no one is supposed to discriminate or harass the other on gender basis. Segregation occurs when one person is treated less favourably than others in a similar circumstance or condition.”3 All workers deserve equal treatment in their places of work irrespective of their gender variations.4 This study examines the cases involving sex discrimination and the benefits of the claimants according to the TFEU. 1. Vicky’s Case Vicky’s accusations to the local authority of sex discrimination are valid because female planning assistants were paid less than their male counterparts in equal positions. There was no basis for paying higher wages or salaries to male workers than female workers considering that they were performing similar roles and subjected to comparable work environment. Even though some variations in pay may occur due to workers experiences, qualifications and nature of work each employee is subjected to, the criteria should apply to all employees notwithstanding gender disparities.5 Vicky can sue the local authority on the basis of sex discrimination and request the court to compel the court to offer equal pay for workers performing similar jobs of equal value irrespective of their gender variations. Employers use various techniques to decide on the salaries and wages they pay to their workers.6 The most common approach includes qualifications, responsibilities and experience of the workers. However, the employer is not obliged to offer equal pay on the ground of qualifications of workers experience.7 The pivotal consideration for setting equal pay for workers performing similar jobs is the value of their input to the organization.8 Therefore, employers should consider the nature of work and conditions the worker under which their workers are subjected to in order to avoid legal suits against gender discrimination. 2. Muriel’s Case In the case of Muriel she may not be able to raise the issue of gender discrimination against the local authority by comparing the salaries paid to personnel officers with the one paid to surveyors. The non-discrimination law prohibits employers from offering discriminatory treatments including salaries to the employees.9 Once a claim is raised by the employee concerning pay discrimination based on sex variations the employer should defend their conducts against that claim.10 According to the Burden of Proof Directive under the European Court of Justice (ECJ) (Directive 97/80) it is upon the employer to establish that their conducts did as far as payment of salaries are not discriminatory if the system applied lacked transparency in a situation where female employees determines that the average pay for women workers was lower than the pay for their male counterparts according11 Therefore, Muriel can sue the employer by raising the issue of gender discrimination against women employees on the basis of unfair pay. It will be the employer’s obligation to provide evidence in self-defence elaborating the cause of the variation in pay between male and female workers. However, despite the qualifications and experiences Muriel and her colleagues these workers were engaged in different activities from those of me and it is not appropriate to compare their salaries since their tasks and values cannot be compared either. The claim of against discrimination should be fair and based on the value of work and the nature of work environment the employees concerned are involved into.12 However, she can be successful if she provides evidence against the employer to attest that the company offered low salaries to female officer than what they could offer to male workers occupying the similar position. For example, she can achieve it if she can prove that the male predecessors in the similar position were paid higher the current female counterparts. 3. Amanda’s Case Part-time Workers Directive 9781 is incorporated under the Sex Discrimination laws in UK in order to protect the right of part-time workers against discrimination considering majority of those workers are female.13 The focus of the TFEU was to protect all workers in unfavourable treatments irrespective of their sexual or other differences.14 Therefore, part-time workers have equal rights and protection against discrimination similar to the one granted to full-time workers. For example, all employees are entitled to equal benefits such as right to access to a pension plan, equal per hour pay rate granted to full-time workers, pro-rate benefits granted to full-time workers, similar training offered to full-time workers, etc.15 In the case of Amanda, who works for local authority as a planning assistant on part-time basis claims that she and her colleagues are being discriminated on the basis of gender. Her concern is that since all part-time planning assistants are female and only they who are being paid less than their counterpart male full-time workers then the employer’s conducts are tantamount to sex-discrimination.16 The reason given by the employer for variations in payments is that it is not economical to include part-time workers in the scheme. In the case of Equal Opportunities Commission V Secretary of State for Employment (1994) the House of Lords claimed that treating part-time workers differently from full-time workers engaged in similar tasks, was tantamount to indirect discrimination of women. Therefore, since the rights of all workers are legally provided Amanda and her colleagues have the right to equal benefits granted to the full-time workers. Also, considering the claimant is a female worker she can raise a legal claim against her employer on the basis of sex discrimination. 4. Michael’s Case Non-discrimination laws protect both male and female workers against any form of discrimination by ensuring that both parties are given equal opportunities and pay for similar tasks.17 However, in the case of Michael against the local authority the job candidates were not given equal treatment. Considering that Michael had more qualifications and experience than Laura it would be expected that the employer would hire Michael. In the case of Lomers18 the court issued a verdict that an organization can seek to protect the welfare of women by during employment by applying measures that does not disadvantage the male job applicants. This could imply that where both men and women have equal qualifications the hiring officer can decide to offer the job to a female candidate in order to promote gender equality. However, in the issue raised by Michael against the employer it is apparent that the conducts of local authority acted in favour of female candidates since Michael had higher qualifications than Laura yet he did not get the job. Therefore, Michael can sue a local authority on the basis of sex discrimination during employment in order to claim that position. Conclusion The antidiscrimination law protects all workers against discrimination based on gender, age, religion, race, etc. The EU law against non-discrimination requires all workers to be given equal pay, social security and equal rights to access fair employment conditions. The non-discrimination laws aim at promoting social and economic welfare of the society by promoting equality of all people subjected to similar conditions and playing similar roles. Question 3: Article 101 TFEU Anti-Competitive Business undertakings play a significant role in promoting economic growth and sustainable development.19 The government has a liability to promote a competitive environment for the businesses in order to promote sustainable development. In order to achieve these goals the UK government support competitive policies with a focus of restricting business conducts that prohibit competition within the meaning of Article 101(TFEU)20. Competition laws aim at promoting healthy competition in order to achieve sustainable development.21 The purpose of this articles it to assess the anti-competitive behaviour of businesses that can be termed illegal because of promoting anticompetitive business practices. The European competitive laws aim at promoting the welfare of the consumers by ensuring that traders offer the superior products and services to the customers at a reasonable and affordable price.22 These laws also focus on promoting economic freedom and efficiencies by creating a level playground for all business operating in the industry so as to ensure none of the plays gain at the expense of other players.23 Another objective is to ensure fair and just practices in the market and offering protection to small and medium businesses. Therefore, competition laws aim at promoting market efficiency and satisfy the consumer needs sustainably. However, these goals can be achieved by having many well-established players in the market and prohibiting any activity that support establishment of a dominant competitor in the market.24 The struggle for economic growth and efficiency has undesired effects on the environment. This implies that the free market notion is detrimental to the environment because it promotes exhaustion of natural resources.25 Uncontrolled use of natural resources may lead to consumer crisis in the long-run and loss or consumer welfare. Therefore, the essence of competitive market policy is focused on promoting economic efficiency and increase in consumer share of economic gains from natural resources. Competition laws assist in correcting market failure in order to support the weaker players in the commercial transactions.26 Consumer welfare refers to the expansion of consumer surplus, which represents the actual price consumers are ready to pay for the goods and services in connection with the real price of the products.27 However, consumer welfare can be attained when the economic resources are effectively allocated in the society. Consumer welfare involves cost saving, efficient transactions, health considerations and environmental protections.28 Article 101 TFEU Prohibitions Cartel The European laws prohibited the undertakings of associations offering products in the market and engaged in the decision, agreement or concerted practice whether horizontal or vertical activities with the intention of “restricting, preventing or disrupting competition.”29 The law prohibits any association that fixes prices, limits outputs, shares markets, customers or sources of supply, or involves other cartels behaviour such as bid-rigging.”30 However, not all associations of this magnitude are restricted by the law. For example, according to Article 101(3) those that create efficiencies and share it customers such that their benefits outweighs the side effects of anticompetitive practices are generally spared.31 However, all cartels involved in activities that creates detriments to the consumers or creates a negative impact on the market are disregarded. Therefore, cartels rarely satisfy the requirement of Article 101(3) hence they are considered as practices limiting competition.32 The law imposes a penalty for the firms engaged in illegal market activities such as exchange of commercial information, quantity agreement, collusive tendering, sharing market, fixing prices, etc.33 For example, in Car Glass case the Commission imposed fine amounting to 1.3 billion euros to three companies in Car Glass case for being involved in illicit sharing of market and exchange of critical commercial information.34 Commercial cooperation Article 101(1) prohibits all commercial agreements and trading terms exerting sufficient influence on competition in the marketplace.35 Third parties can present the claim to the court regarding the arrangements they believe to be infringing the competitive policy and request the Commission to conduct an investigation of the associations.36 Also, they can present the claim before the court against the parties involved in practices that limits competition in case of any damages they suffer as a result of operations of the agreements interfering with competition. However, the parties who suffer damages due to the alleged infringement of competition rules have the responsibility to provide evidence of infringement.37 On the other hand, the party seeking defence under Article 101(3) must provide proof of satisfaction of the criteria set in that Article.38 Also, there should be proof of the affected market while taking into consideration of the pertinent product and geographic market. The commission has the responsibility of defining the market affected by the anticompetitive laws and making analysis of the product use while focusing on the consumers and competitors. The agreement of on competitors not included in the prohibitions is the one with prohibitions not exceeding 15% of the market share and those having less than 10% threshold of competitors involvement.39 However, these cannot evade the prohibitions if their practices involve price fixing or territorial market sharing such as imposing ban on exports or imposing prohibitions on similar trade between EU Member States.40 Mergers, acquisitions and joint ventures The European laws regulate the merger activities in order to avoid their harmful impacts on the market because of distortion of competition.41 Furthermore, the laws regulate state monopolies by encouraging market liberalization within the EU. Mergers and acquisitions distort market structures and results of market dominance and a few or an individual firm.42 This eliminates market efficiency and increases detrimental effects to consumers such as high prices, market sharing, etc. The business activities that result in the dominance of a single or group of firms in the market increases potential for abuse of dominance position by that dominant company. The dominance position refer to a condition where an individual firm holds economic powers that permit it to limit the maintenance of sufficient rivalry in the respective market because it is capable of operating independently of other companies and consumers. A firm is considered dominant if it holds greater than 40% of the market share in the industry. The conducts of a dominant firm considered abusive include unfair pricing, withholding of supplies, rebate pricing, discrimination, etc. Intellectual property licensing The commission issues intellectual property license in order to promote innovation and promote healthy competition.43 However, Article 101TFEU sets limits to which license can be issued. The Article will be applicable in a situation where the licensing restricts maintenance of retail price or provide the complete regional fortification to the licensor or licensee.44 Therefore, Commission provides license to intellectual property while taking regards of the extent to which they impose limitations to business competitions.45 Conclusion The EU laws prohibits as incompatible with the internal market all agreement undertakings, concerted practices and decisions by associations of undertakings that may disrupt trade activities between the member states and may undermine, limit of alter the internal market. Those are undertakings likely to fix prices or any trading conditions, result in sharing of market or supplies, prohibit or regulate market, technical development, or investments, all undertakings exhibiting discriminative transactions among the member states in an effort to impose competitive disadvantage, etc. Article 101 covers prohibitions such as cartels, intellectual property licensing, commercial cooperation, mergers, acquisitions and joint ventures. Bibliography Article 119 of the 1957 EEC Treaty Bailey David, “Restrictions on Competition by object under Article 101 TFEU,” (Common Market Law Review 49, 2012): 559-600 Brouwer Onno W., Goyder Joanna, Mes Daniel, “Developments in EC competition law in 2007.” (Common Market Law Review 45, 2008): 1167-1205 Cathryn Costello and Davies Gareth, “Case Law of the Court of Justice in the Field of Sex Equality since 2000,” (Common Market Law Review; Dec 2006, Vol. 43): 1567-1616. Dashwood Alan, Dougan Michael, Rodger Barry, Spaventa Eleanor and Wyatt Derrick, “Wyatt and Dashwoods European Union Law,” (Bloomsbury Publishing, 2011): 1-1110 Dansk Arbejdsgiverforening, acting on behalf of Danfoss [1989] ECR 03199 (Danfoss). ECJ 19 March 2002, Case 476/99 H. Lommers v Minister van Landbouw, Natuurbeheer en Visserij [2002] ECR I-02891 Lommers ECJ 17 October 1989, Case 109/88 Handels- og Kontorfunktionærernes Forbund I Danmark v Equal Opportunities Commission V Secretary of State for Employment (1994) Graham Cosmo, “Methods For Determining Whether An Agreement Restricts Competition,” (European. Law. Review 2013, 38(4)): 542-551 Grasmick Anna, “EU Sex Discrimination Law and the Principle of Equal Pay,” (GRIN Verlag, 2012) 5-10. Green Nicholas, Hartley Trevor C., Usher Anthony J., “The legal foundations of a single European market.” (Oxford University Press, 1991): 1-314. Hojnik Janja, “Free Movement of Goods in a Labyrinth," (Common Market Law Review 49, 2012): 291–326. Kaczorowska Alina, “European Union Law,” (Routledge, 2013). Paul Craig and de Burca Grainne, “EU Law: Text, Cases, and Materials,” (Oxford University Press, 2011): 1-155 Koldinska Kristina, “Case law of the European Court of Justice on sex discrimination 2006- 2011,” (Common Market Law Review 48, 2011): 1599-1638. Krenn Christoph, “A Missing piece in the Horizontal Effect “Jigsaw,” (Common Market Law Review 49, 2012):177–216 Lianos Ioannis, “Collusion in vertical relations under Article 81 EC,” (Common Market Law Review 45: 2008): 1027-1077. Mathijsen P. and Dyrberg Peter, “A Guide to European Union Law,” (Sweet & Maxwell, 2013): 1-728 Steiner Josephine, Woods Lorna and Philippa Watson, “Steiner & Woods EU Law,” (UK: Oxford University Press, 2012): 738. Ward Ian, “A Critical Introduction to European Law,” (Cambridge University Press, 2003): 1- 336 Weatherill Stephen, “Cases and Materials on EU Law 11th Ed. (UK: Oxford University Press, 2014): 1-643 Wilsher Daniel, “An assessment of the non-discrimination principle within the European Single Market.” (European Law Review, 33(1), 2008): 3-22 Read More