European Union - Discrimination Law

Key Term Definitions

Direct effect - Direct effect is the term given to provisions of EU law which can confer rights on individuals which the courts of Member States are legally bound to recognise and enforce. EU law that is directly effective has priority and overrides any conflicting national legislation.

Indirect effect - Indirect effect is a situation where national courts of Member States must interpret national laws, so that they align correctly with an unimplemented, or badly implemented directive.

Horizontal direct effect - Horizontal direct effect concerns the relationship between individuals. If a certain provision of EU law is horizontally directly effective then citizens are able to rely on it in legal actions against each other. Certain provisions of treaties and regulations are examples of provisions which have horizontal direct effectiveness.
However, directives are usually incapable of being horizontally directly effective.

Vertical effect - Concerns the relationship between EU law and national law of Member States. Citizens can rely upon EU law to enable themselves to take action against public bodies.

Shared Competence - Shared competence refers to the situation where the EU has power to legislate in some areas of policy, and the Member States have power to legislate in other areas of that policy. An example of an area of shared competence is 'social policy.'

Direct Discrimination - Direct discrimination is defined as existing when "one person is treated less favourably on grounds of X than another is, has been or would be treated in a comparable situation." X refers to a prohibited stand of discrimination e.g. Age, Sex, Race.

Indirect Discrimination - Indirect discrimination is defined in the Equality Recast Directive as "an apparently neutral practice, criterion or provision which would put persons of one sex at a particularly disadvantage compared with persons of the other sex, unless that provision is objectively justified by a legitimate aim, and the means of achieving that aim are appropriate and necessary."

Objective Justification - Indirect discrimination can be justified if it meets the objective justification criteria, which are: Legitimate, Reflect a Real Need, Appropriate and Necessary.

Introduction

Combating discrimination is an area of social policy in the EU. In the EU social policy is a 'shared competence' where the EU has power to legislate in some areas, and other areas are reserved for the Member States.

Primary Legislation and Treaties (by date of enforcement)

Treaty of Rome (1957)

This treaty is the predecessor to TFEU, however some EU Discrimination law originated in this treaty, so it is important to be aware of it.

  • The principle of equal pay for men and women was stated in the Treaty of Rome.

Treaty of Amsterdam (1999)

This treaty brought new legal bases to combat other forms of discrimination such as age, race, religious belief and sexual orientation.

Treaty on the Functioning of the European Union (2009)

  • Article 4 (2b)
  • Article 8
  • Article 9
  • Article 10
  • Article 18 - FINISH THIS ONE
  • Article 19 TFEU
  • Article 157 (1)
  • Article 157 (2)
  • Article 157 (3)
  • Article 157 (4)


Secondary Legislation and Directives (by date)

Equality "Recast" Directive 2006/54

This directive was formed from the amalgamation of the Equal Pay Directive 75/117 and the Equal Treatment Directive 76/207, and (obviously) includes their provisions.

Pregnant Workers Directive 92/85

This directive protects pregnant workers by mandating employers to carry out risk assessment for pregnant workers.
Paid materntity leave...
something else, see page 3.


Nationality Discrimination

Status: Prohibited.

Article 18 TFEU prohibits discrimination on grounds of nationality completely.

"Within the scope of application of the Treaties, and without prejudice to any special provisions contained therein, any discrimination on grounds of nationality shall be prohibited."

Racial or Ethnic Origin Discrimination

Status: Prohibited.

Directive 2000/43

  • Prohibits direct and indirect discrimination in relation to employment matters and in relation to social advantages, education and access to and supply of goods and services available to the public. (e.g. housing)

Religious/Belief/Age/Disability/Sexual Orientation Discrimination

Status: Prohibited (With some exceptions)

Directive 2008/78

  • Prohibits direct and indirect discrimination. However, the scope is limited to the employment sphere.

Sex Discrimination

Status: Prohibited in relation to employment.

Article 157 TFEU

  • Prohibits gender based pay discrimination.

The Equality "Recast" Directive 2006/54

  • Equal pay for equal work.
  • Equal access to benefits and benefits derived from occupational benefit schemes.
  • Equal treatment in working conditions.
  • Prohibits direct and indirect discrimination on grounds of sex in public and private sectors.
  • The directive makes Member States ensure there are adequate enforcement procedures and remedies.
  • The directive covers the burden of proof in discrimination case. (EXPAND ON THIS)

Pregnant Workers Directive (Directive 92/85)

  • Requires employers to carry out risk assessment for pregnant workers, and to reassign them to other tasks if potential hazards are discovered. If not possible to avoid hazards at work the pregnant woman must be given leave.
  • The directive requires Member States to provide for a period of paid maternity leave.

Other

  • Note that sex discrimination is also outlawed in relation to access to and supply of goods and services (Directive 2004/113), and social security (Directive 79/7).

Direct Discrimination

Direct Discrimination - Direct discrimination is defined as existing when "one person is treated less favourably on grounds of X than another is, has been or would be treated in a comparable situation." X refers to a prohibited stand of discrimination e.g. Age, Sex, Race.

Thus, there are three key components to direct discrimination:

  1. Less favourable treatment.
  2. A prohibited strand of discrimination (gender, race, age, sexual orientation etc.
  3. A relevant comparator (man or woman, homosexual or heterosexual etc.)

Direct discrimination can NEVER be justified in EU law.

Indirect Discrimination

Indirect discrimination is defined in the Equality Recast Directive as "an apparently neutral practice, criterion or provision which would put persons of one sex at a particularly disadvantage compared with persons of the other sex, unless that provision is objectively justified by a legitimate aim, and the means of achieving that aim are appropriate and necessary."

Indirect discrimination CAN be justified under certain circumstances.
To do this you must:

  1. Be justified by objective factors unrelated to sex, race, religion etc.
  2. Be proportional

The 3 Derogations

EU law provides three derogations from the principle of equal treatment for direct and indirect discrimination. They are:

  1. The possibility of excluding certain occupational activities to one sex where sex is a genuine and determining factor, e.g. actor/actress. (Provided for by Article 14(2) Equality "Recast" Directive.)
  2. Provisions regarding the protection of women, particularly with regards to pregnancy and maternity. (Provided for by Article 28(1) Equality "Recast" Directive.)
  3. Measures to promote equal opportunity for men and women, by removing existing inequalities which affect women's opportunities. (Provided by Article 3 Equality "Recast" Directive.)

Burden of Proof in Discrimination Cases

In discrimination cases the burden of proof rests on the employer, who has to prove that there has been no breach of the principle of equal treatment. This is because it may be difficult for an individual to who may not have access to the relevant information in proving discrimination.

For example, in the Bilka-Kaufhaus case, the respondent employer had to show that there had been no breach of the principle of equal treatment.

Harassment

Harassment amounts to discrimination. It is defined as,

"unwanted conduct related to the sex of a person with the purpose or effect of creating an intimidating hostile, degrading, humiliating or offensive environment," and can be verbal, non-verbal or physical.

There are three pieces of legislation to know here:

  1. Article 2, Recast Directive for sexual harassment.
  2. Directive 2000/43 for racial harassment.
  3. Directive 2000/78 for other strains of prohibited discrimination.


Victimisation

Adverse treatment or consequences imposed as a reaction to a complaint or to proceedings aimed at enforcing compliance with the principle of equal treatment.

Victimisation is prohibited under ALL the discrimination directives.

Positive Action

Permitted under Article 3, Recast Directive; and Article 157 TFEU.

This means that Member States can adopt measures to help an under-represented sex in order to pursue full equality. This typically takes the form of providing one sex with advantages to ensure they have an easier time getting a job in a specific market.

Know five cases of: (See 'case law' section for full details)

  1. Kalanke (1995) (c-450/93)
  2. Marschall (1997) (c-409/95)
  3. Badeck (2000) (c-258/97)
  4. Abrahamsson and Anderson (2000) ECR I-5539
  5. Lommers 'Netherlands Nursery case' (2002) (c-476/99)

Sex Discrimination in Access to Goods and Services

Status: Prohibited by Directive 2004/113 outside of private and family life. Education, media and advertising are excluded from this directive's scope.

The first case on this related to an Article of Directive 2004/113 itself which permitted states to allow different insurance policies between men and women. The case of Test Achats led to the declaration of this Article being ultra vires.

Case Law

Defrenne v. Sabena (No 2) (c-43/75)

Defrenne took a case against the (now closed) airline company Sabena for equal pay for men and women.This was the case where the European Court of Justice (CJEU) breathed life into Article 119 (Now Article 157 TFEU) by making it directly effective.

Part time workers case (Find name of case)

Part time workers took a case to the CJEU that indirect sex discrimination had occurred because part time workers were excluded from pension schemes, and the majority of part time workers were women.

Bilka-Kaufhaus v Karin Weber von Hartz (c-170/84)

This case saw the creation of the objective justification concept. The concept required the employer to show that the indirect discrimination could be justified if there was:

  • a legitimate business goal
  • the means chosen reflect a real need for the indirect discrimination to exist
  • the means chosen are appropriate to achieving the objective in question; and
  • the means chosen are necessary to that end.

(In short, the business goal must be: Legitimate, Reflect a Real Need, Appropriate and Necessary.)

Kalanke (1995) (c-450/93)

CJEU decided a policy of automatically recruiting women when they were underrepresented in a particular sector was unlawful to the (now repealed) Equal Treatment Directive.

Marschall (1997) (c-409/95)

ECJ ruled that women were not to be given automatic priority if reasons specific to a male candidate tilted the balance in his favour.

Badeck (2000) (c-258/97)

Abrahamsson and Anderson (2000) ECR I-5539

"Positive discrimination cannot be used to justify the appointment of a less qualified woman over a more highly qualified man."

Lommers 'Netherlands Nursery case' (2002) (c-476/99)

Netherlands allowed mothers subsidised childcare to allow them to work. Mr. Lommers applied to a nursery for his child, but was refused. CJEU held that this measure was not proportionate, but that a man who had sole responsibility for child care would also have to be considered for a subsidised nursery space.

Test Achats (c-236/09)

This case declared an Article of a directive which allowed for different insurance policies between men and women to be ultra vires.

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