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FREE MOVEMENT OF PERSONS IN EU LOW - Essay Example

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The cases of Defrenne v Sabena,1 Barber v Guardian Royal Exchange Assurance Group,2 and Marshall v Sotuhampton and South-West Hampshire Area Health Authority3, all portray instances of private parties looking to European Community (EC) law for assistance with their domestic grievances…
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Download file to see previous pages nce of the European Court of Justice's (ECJ) ruling was.
In Defrenne, the individual acted against a condition in her contract of employment that required her to retire at the age of 40, whilst male employees continued up to the age of 55. She pleaded her defense on the basis of Article 141 of the Treaty of Amsterdam (then Article 119), guaranteeing equal pay for equal work. The fundamental problem at hand was whether the provision could be enforced horizontally- against a private party by such a party- as Sabena Airline was classified as a private party, albeit with the state as a majority shareholder, on the basis that it was constituted under private law, and with staff under private contracts of employment. However, the ECJ held that Article 141 did have direct effect so that the equal pay principle applied to contractual relations between employer and employee in a Member States. This was on the grounds that 'Article 119 is a mandatory in nature'. But because of a general principle of legal certainty, there could not be direct effect for retrospective applications, thus only claims for equal pay already brought at the date of the Defrenne judgment could be pursued in national courts.
The Defrenne case also provides an example of the court interpreting the Van Gend En Loos conditions for direct effect flexibly. Article 141 states that 'the application of the principle that men and women should receive equal pay for equal work', and this was deemed to lack sufficient precision to be invoked by a private party and enforced by a national court. This is on the basis that it did not impose a precise negative obligation on the Member States- or Belgium in this case- nor did it provide a clear definition of terms such as 'priciple' or 'pay' or 'equal work'.5 However, the case retains its credibility as the court segregated the principle of equal work, within the article, with the factual uncertainties regarding the terms stipulated. Indeed, the case shows a clear determination by the courts to ensure tht the EC's aims were not ignored by laggard Member States.
As a conclusion, therefore, the aforementioned considerations portray that Defrenne was successful in her claims, and the court did give priority to the social, rather than economic, aims of Aritcle 141, upholding 'one of the fundamental human rights', and therefore pursing its obligation to ensure the respect of such rights.6 The case of Baudet7 was another case relying on the success of the Defrenne claim. However, Defrenne was only successful in claiming the first of her three claims- that in respect of wages paid to her during her employment by Sabena. The other two, the indemnity paid to her at the termination of her employment and her pension rights could not be claimed as the court deemed that ...Download file to see next pagesRead More
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