Seminar 5 of the Course European Law (2016/2017), Utrecht University

This is a seminar about Week 6!

Week 6 European Law (Seminar 5)

Equal treatment in employment

Question 1

Which similarities and/or differences are to be discerned between the discrimination prohibition on the grounds of age, handicap, belief and sexual orientation of Directive 2000/78, and the discrimination prohibition on the ground of nationality of Article 45 TFEU?

Take regard of their personal and material scope and their interpretation by the ECJ.

Answer to question 1:

Differences: The discrimination prohibition on grounds of age, handicap, belief and sexual orientation fall within the scope of the Directive. This Directive concerns equal treatment in employment, without cross-border element. It’s about internal labour situations. Therefore, the Directive has to be implemented in national law. The Directive applies to the public sector. The Directive is based on article 19 TFEU. 

The discrimination prohibition on the ground of nationality does concern a cross-border element. It can be invoked in other Member States. Article 45 TFEU has a community meaning and is applicable in all of the Member States. Article 45 TFEU does not apply to the public service (par. 4). Article 45 TFEU could be regarded as a lex specialis to article 18 TFEU.

Similarity: Both discrimination prohibitions have the objective to protect workers in the European Union, but the Directive also applies to self-employed persons. The Directive has a broader scope. This is a difference, but they both concern workers.

Question 2

A private school employs 100 female teachers, of which 40 work part time, and 50 male teachers, of which 10 work part time. Ms. Peters, who works 4 hours a day, is a member of the school’s works council (WsC). According to national law, members of the WsC can perform their WsC’s tasks in working time and are being paid their salary according to their employment contract. One day, the members of the WC take a full day-training course in labour law. The full time members receive payment according to 8 hours, however Ms Peters is only paid according to 4 hours because this is her contractual working time per day.

1. Is Ms Peters discriminated against on the basis of EU law? If so, does it constitute direct or indirect discrimination, and on what discrimination ground?

Answer to question 2a:

Mention the primary legislation first, so that is article 157 TFEU. Also, mention the Directive 2006/54 EC! Also use the Bilka case, par. 27.

This question concerns the discrimination on ground of sex: There is no direct discrimination, because Ms. Peters is not treated less favourably because she works part-time and her colleagues are working full-time. However, the training is a full day, and this will cost Ms. Peters 8 working hours. However, she only receives remuneration for 4 hours.

There is indirect discrimination, because the neutral provision in national law, brings Ms. Peters in disadvantage, because she works part-time. Mostly women are part-timers, that’s why this question concerns the discrimination on ground of sex (Bilka judgment).

The indirect discrimination could be justified, if the provision is proportionate and serves a legitimate aim.

b.         Could Ms Peters directly rely on Community law in order to receive the same payment as her colleagues, working full time? If so, which provision?

Answer to Question 2b:

Article 157 TFEU: Economic objective. Article 157 has horizontal direct effect (Defrenne II). Ms. Peters cannot rely on the Directive.

The prohibition of discrimination on the ground of sex is regulated by the Directive 2006/54 on the equal treatment of employees. The Directive must be implemented in national law, before a person is able to invoke the article. Article 14 is about the prohibition of direct and indirect discrimination. Ms. Peters cannot rely on Community law directly, the Directive has to be implemented first.

Question 3

The Dutch Minister of Social Affairs developed a legislative measure in order to combat the rising unemployment among young people in this time of financial crisis. According to this temporary measure, young workers under 27 years of age can enter more than three consecutive, fixed term employment contracts without the contract being automatically converted into a contract of indefinite duration. This is an exception to national labour law, protecting workers on fixed term contracts, which states that every fourth, consecutive fixed term contract is automatically converted in one of indefinite duration.

Bartho, 24 years, feels he is being deprived of social protection solely on the basis of age. He is not unemployed and actually expects to be offered a contract of indefinite duration in a short time by his employer because the employer needs his services and already offered him three, consecutive fixed term contracts until now.

Is the legislative measure in conformity with EU law?

Answer to Question 3:

Article 6 of the Directive 2000/78 describes justifications of differences of treatment on grounds of age. According to this article: ‘’Member States may provide that differences of treatment on grounds of age shall not constitute discrimination, if, within the context of national law, they are objectively and reasonably justified by a legitimate aim, including legitimate employment policy, labour market and vocational training objectives, and if the means of achieving that aim are proportionate and necessary.’’ In this case, the ground concerned is the labour market. Bartho is 24 years old and will not get a contract of indefinite duration, because of the regulation. This is discriminatory, because people younger than 27 years old will have disadvantage, because they will not have a contract of indefinite duration. Sub b is important: ‘’The fixing of minimum conditions of age, professional experience or seniority in service for access to employment or to certain advantages linked to employment’’. In this case there is a minimum condition of age from above 27 to obtain a contract of indefinite duration.

This however can be justified by a legitimate aim if it’s proportionate and necessary. According to the Dutch government, the measure was taken to combat the rising unemployment of younger people, because of the financial crisis. This is a legitimate aim. The provision is also proportionate, because it is a temporary measure. So, the measure is in compliance with EU law.

(Age concern case, par. 43). Mangold case: combating unemployment was accepted.

Question 4

An enterprise has to restructure. It agrees on a restructuring plan with the trade unions that offers workers that have to be made redundant, and not yet reached 60 years of age, an redundancy payment (total sum that equals their monthly salary x years of service) and outplacement services. Workers of 60 or older are expected to retire early and make use of their pre-pension plan. If they do so, they receive an additionally payment, making up (including pension benefits) 70% of their monthly wages. The employer and the unions reckon this plan to be based on solidarity because workers over 60 are offered income security, instead of employment security, as they will have little chances on the labour market as it is.

Mr. Vanilio, 63 years and 25 years of service, disagrees because the redundancy payment in his case would amount to much more money, compared to the additional payment to his pensions benefits.

Is the redundancy plan in conformity with EU law?

Answer to Question 4:

This case is about discrimination on the basis of age. There is no closed system, but a proportionality test. Discrimination on the basis of age falls within the scope of Directive 2000/78 EC. According to the Directive, there should be equal treatment and there is a prohibition of discrimination on the ground of age (article 6 Directive). The redundancy plan is therefore not in conformity with the European Law, because it is discriminatory and there is no equal treatment. Older persons in the enterprise are being treated less favourably than the younger employees. This is direct discrimination.

Question 5

The police of the municipality of Utrecht has a job-vacancy for an officer, who has to work in a neighbourhood were a significant number of the inhabitants has a Moroccan-ethnic background. For this reason and also because of the fact that Dutch-Moroccans are underrepresented in the Utrecht police force, the job-advertisement requires candidates to belong to an ethnic minority, preferable Moroccan.

1. Does the job requirement constitute discrimination under EU law? Which Directive is involved?

Answer to Question 5a:

The job requirement constitutes discrimination based on race, because the police prefers someone with a Moroccan-ethnic background. Other races are not able to apply for the job. This situation falls within the scope of the Directive 2000/43 EC on race discrimination. This is direct discrimination, because all the other races cannot apply for the job.  Only ethnic-minorities can apply for the job. According to article 2(2a) Directive, discrimination occurs where one person is treated less favourably than another is, has been or would be treated in a comparable situation on grounds of racial or ethnic origin.

b.         What kind of defences (name two) could the municipal police put forward on the basis of this Directive? Will they be successful? (argue why/why not)

Answer to Question 5b:

Because of the Moroccan-ethnic neighbourhood the police wants someone with a Moroccan-ethnic background or other ethnic minorities. The police is afraid that the group is underrepresented, and if there comes a Moroccan-ethnic police-officer, this might be fortunate for the trust of the ethnic groups. Also, the ethnic person could communicate better with the Moroccan community, if they don’t speak Dutch very well. So, there is a legitimate aim.

 However, Only article 4 and 5 (closed system) can form an exception to direct discrimination, according to the Directive 2000/43 EC. Article 4 does not apply, because it is not necessary to be Moroccan to fulfil the job. It could be legitimate, but you could not say that Moroccan people are always better qualified than non-Moroccan people to apply for the job. Also article 5 cannot be fulfilled. Therefore, the defences of the police will not be successful.