Law Problem Question: EU Law on Free Movement

Eric, a Swedish national, entered Germany to look for work. He found a job as a casual labourer on a building site but this only lasted for a few weeks. He then attempted to claim social security but was told that as a non-German national he was not entitled to receive it while looking for work.

His partner Klara also arrived in Germany together with their two children Karl and Katrina.. Klara found work as a part-time sales assistant. She also claimed state benefits to supplement her income.

Eric and Klara both applied for a resident’s permit but were told that they were not eligible as they were not earning a sufficient income to fully support themselves.

Eric applied for a full-time job as an administrator. He was required to take a German language test even though he said that he is fluent in German (whereas German national applicants to the job were not required to take the test).

He was told that his test result only entitled him to a lower paid job (as opposed to the job he had applied for). He accepted this job, but later discovered that his employer had not given him the same pension rights as his German national colleagues.

Eric and Klara both applied for a “family tax allowance” that was available for families with two or more children but they were told that this allowance only applied to German nationals, therefore their application for it was refused.

Karl, who had just left school, applied to do a training course. The course was free to German nationals. Karl complained when he was required to pay a fee.

Katrina obtained a place at a German university. She was refused an attendance allowance, although such an allowance was available for German nationals who attended university..

Eric was found guilty of a serious computer fraud. Klara was convicted of theft. Karl was found guilty of driving without a license and without insurance. Katrina was convicted of illegal drug use. The authorities now wish to deport the whole family from Germany..

ADVISE Eric, Klara, Karl and Katrina as to how European Union law on the free movement of persons (Art 39EC) may be argued in relation to the above events.

Question 2

Maria is employed as an administrator by World Tours Ltd. Most employees in the administration department are female. All of the employees in the marketing and sales department are male. Maria discovered that her salary scale was lower than those of employees in the marketing and sales department who have been with the company for the same length of time as her. She is claiming that this difference in pay amounts to sex discrimination and is arguing that an administrator’s pay should be equal with that of a marketing assistant.

Another issue is that the marketing and sales staff all have a company car whereas this is not true of administration staff. Maria is arguing that she should have one and that to refuse her one is sex discrimination.

Gita works part-time in the accounts department. Only ten percent of the full-time staff in the department are female whereas ninety percent of the department’s part-time staff are female. Gita discovered that her rate of pay was less than that of the full-time staff in the department.

When Gita asked her employer if he could alter her working hours so that she could spend more time with her children he refused, and said that if she did not like it she can find another job. Gita is arguing that both of the above situations amount to sex discrimination.

Christine phoned for a full-time job that had been advertised for the marketing and sales department. She was told that the job had just been filled but they could interview her for a job in the administration department. She was given the administration job but later heard that Donald, who was interviewed on the same day as her, was given a job in marketing. She complained about this, but was told that women are not really suited to working in marketing and sales. Christine is now arguing that she has been the victim of sex discrimination.

ADVISE Maria, Gita and Christine how EU law on sex discrimination (Art 141EC) may be argued in relation to each situation above.

ANSWER

QUESTION 1

In advising Eric, Klara, Karl and Katrina one must consider a fundamental freedom settled by EC law for the benefit of economically active citizens of the European Union. The Treaty of Rome 1957^[1] (hereafter ‘the Treaty’), enshrines the principle of free movement around the EU for workers and their families. Article 39^[2] stipulates inter alia that:

“1. Freedom of movement for workers shall be secured within the Community..

2. Such freedom of movement shall entail the abolition of any discrimination based on nationality between workers of the Member States as regards employment, remuneration and other conditions of work and employment.”^[3]

The family should also be advised that the EU is moving the emphasis away from free movement rights attached to the status of worker to rights based on citizenship Directive 2004/38^[4] states in clause 3 of its preamble:

“Union citizenship should be the fundamental status of nationals of the Member States when they exercise their right of free movement and residence.”^[5]

However, Article 6 of the Directive only allows an unfettered right to free movement based on citizenship alone for a period of three months. In order to enjoy a right of residence for a period exceeding three months the family must be advised that Union citizens are still obliged to demonstrate economic activity or financial self-reliance.

Karl has attempted to claim social security but was told that as a non-German national he was not entitled to receive it while looking for work. Regulation 1612/68^[6] provides that EC nationals are guaranteed the right to pursue and take up employment in the territory of another member state under exactly the same conditions as nationals of that state. The Regulation states, specifically that non-national workers are entitled to the same social and tax advantages as national workers in Article 7(2).

In order for Karl to qualify as a worker in this context he must prove that his economic activity, which was confined to a few weeks work as a casual labourer on a building site, is sufficient. The Treaty does provide a definition of the concept of ‘worker’. That said, the Court of Justice typically interprets Article 39 generously. In Lawrie-Blum v Land Baden-Wrttemberg^[7] the essential characteristic of a worker was found to be:

“the performance of services for and under the direction of another in return for remuneration during a certain period of time”.

Levin v Staatsecretaris van Justitie^[8] confirms that the concept of ‘worker’ must be determined by reference to EU law rather than national law and in this case a part-time worker was deemed to qualify on the basis that the work was ‘real’ work of an economic nature and not purely nominal or minimal^[9]. In Steymann v Staatsecretaris van Justitie^[10] a member of a religious community who acted as a handy man paid keep and pocket money also qualified as a worker so it is submitted that Karl would also be found to qualify. This should leave him entitled to equal treatment in terms of social security with German nationals.

Eric and Klara applied for residence permits but were informed that they were not eligible because they were not earning a sufficient income to fully support themselves. However, they can be advised that Directive 68/360 dictates that workers and their families are entitled to residence permits under Article 6 and given that Klara should qualify as a worker due to her part-time employment they are entitled to them. Klara has work as a part-time sales assistant and claims state benefits to supplement her income, but this is analogous to the situation in Kempf v Staatsecretaris van Justitie^[11], where a part-time music teacher from Germany received supplementary benefits in the Netherlands but nonetheless qualified as a worker.

In regards to the fact that Eric was required to take a German language test even though he claims he is fluent in German although German national applicants to the job were not required to take the test Eric can be advised that by Article 3(1) of Regulation 1612/68 member states are permitted to impose conditions relating to linguistic knowledge required by reason of the nature of the post to be filled. See also: Groener v Minster for Education^[12].

Further information is required as to whether the job in question was one that actually required a high proficiency in German. Eric thereafter accepted a lower rated job, only later to discover that his employer had not given him the same pension rights as his German national colleagues. This is a direct contravention of Regulation 1612/68 Article 7(1) which provides that EC workers may not be treated differently in terms of their conditions of employment including pension rights on account of their nationality. See for authority: Ugliola^[13].

It is noted that Karl, who has just left school, has applied to do a training course which is free to German nationals, but that Karl is to pay a fee. This is a breach of Regulation 1612/68 Article 12, which provides that the children of migrant workers shall be admitted to the host states general educational, apprenticeships and vocational training courses under the same conditions as nationals of the host state. Therefore as Casagrande v Landeshauptstadt Munchen^[14] confirms, Karl is entitled to take the course for free, just as German nationals can.

Much the same analysis applies to Katrina in connection with the refusal of her attendance allowance for university. If such an allowance is given to German nationals she is entitled to equal treatment under Regulation 1612/68. The case Commission v Belgium^[15] provides that the children of migrant workers are entitled to equal treatment in access to all forms of state education.

The German authorities now wish to deport the family due to their criminal activity. Eric was found guilty of a serious computer fraud. Klara was convicted of theft. Karl was found guilty of driving without a license and without insurance. Katrina was convicted of illegal drug use. It is submitted that, subject to the provision of further information regarding the specific nature of the offences, none of these crimes will justify the German state in excepting the family from the general rights in Article 39 EC and deporting them. States can exclude individuals on grounds of public policy or public security under Article 39(3) but criminal convictions do not necessarily provide grounds for this. R v Bouchereau^[16] indicates that a criminal conviction will only prove relevant if it indicates a threat to the requirements of public policy and it is argued that none of the above crimes fall into that narrowly construed category.

In Bonsignore v Oberstadtdirektor of Cologne^[17] an individual who shot his victim with an unlawfully possessed firearm successfully challenged deportation on the grounds that deportation cannot be used as general preventative measure. This appears far more serious in terms of public policy and security than the crimes of the family. Moreover in Donatella Calfa^[18] an Italian threatened with expulsion from Greece successfully invoked Article 39 EC and Article 3 of Directive 64/221 in the context of being convicted of using prohibited drugs and this is specifically analogous to Katrina’s situation..

1181 WORDS

QUESTION 2

Article 141 EC provides that member states: “shall ensure that the principle of equal pay for male and female workers for equal work or work of equal value is applied..” In this context the word pay is expansively defined, including any: “consideration whether in cash or in kind, which the worker receives directly or indirectly, in respect of his employment, from his employer”.. The Equal Pay Act 1970 regulates this field in the United Kingdom.

Advising Maria first, it is noted that she has discovered that the female dominated administration department is paid at a lower rate than that of the male dominated marketing and sales department. In order to successfully press a claim for sex discrimination Maria will have to make a case asserting that the work of an administrator is of equal value to that of a marketing assistant with the same length of service..

It is impossible to determine whether or not these two jobs can be objectively equated in terms of value and further particulars are sought on the matter. However, in Enderby v Frenchay Area Health Authority^[19] the European Court of Justice held that where statistics show a material difference between pay for jobs found to be of equal value where one is almost entirely carried out by women (speech therapists) and the other is largely carried out by men (pharmacists) then the employer is obliged to show that the difference can be objectively justified on grounds other than that of sex.

In Bilka-Kaufhaus v Weber von Hartz^[20] the European Court set down guidelines as to what constitutes an objective justification in this sphere:

“If the national court finds that the measures chosen correspond to a real need on the part of the undertaking, are appropriate with a view to achieving the objectives pursued, and are necessary to that end, the fact that the measures affect a greater number of women than men is not sufficient to show that they constitute an infringement.”

Therefore Maria can be advised that she must prove her work is of equal value to that of a marketing assistant and then look to the employer to justify its position in the terms outlined above. If it cannot, she has a case for equal pay.

As for the company cars given only to marketing and sales staff, further information is requested.. The provision of a car certainly constitutes a ‘non-pay benefit’ covered by Article 141 EC but it may well be that it is necessary to provide cars to marketers because their work entails considerable travel, while administration staff are typically based in a single office. It is advised that this argument would be considered objective justification for an employer’s decision not to supply company cars to administration staff.

Regarding Gita’s concerns, she has discovered that part-timers, who are predominantly female (90 per cent), are paid at a lower rate of pay than full timers, who are predominantly male (90 per cent). Gita can be advised that this scenario has arisen several times for the consideration of the European Court. In the case Jenkins v Kingsgate (Clothing Productions) Ltd^[21] part-time workers (the great majority of which were female) were paid 10 per cent less than full-time workers. The Court held that the lower rate of pay for part-time workers did not necessarily infringe Article 141, provided that the difference in pay could be objectively justified and was in no way related to discrimination based on sex. Endorsing the Jenkins ruling, in Bilka-Kaufhaus the court added that if no objective justification was available an infringement of Article 141 would be found. As stated above, in Bilka-Kaufhaus the Court defined what it was looking for in terms of objective justification and this jurisprudence is applicable here although it will not be repeated for the sake of brevity.

In simple terms, Gita’s employer must prove that the pay differential can be objectively justified. If it cannot Gita will have a strong case for sex discrimination and compensation.

As for Gita’s second problem it is noted that she has requested an alteration in her working hours so that she can spend more time with her children and that this has been refused. It is advised that it would be difficult for Gita to claim that this amounts to sex discrimination because there is absolutely no evidence that the employer would do anything other than refuse a similar request made by a male employee in the same circumstances. The employer does not appear to have based his decision on sex, but merely on efficient office management. This is not on its face unequal treatment or discrimination on grounds of sex as in Macarthys Ltd v Smith^[22] and therefore it is hard to build a robust legal case to support Gita’s claim.

Christine enquired about a job in the marketing and sales department of a company but was informed that the job had just been filled. She was offered a job in the administration department instead and took it. Later she heard that Donald, who was interviewed on the same day as her, was given a job in marketing. Further particulars are required as to whether in fact Donald had indeed already been given the job when Christine made her enquiry or whether this was misinformation.

Directive 76/207 provides in Article 1(1) for the principle of equal treatment of men and women as regards access to employment. Article 2 defines ‘equal treatment’ as prohibiting all discrimination on grounds of sex either directly or indirectly. If Christine did call after the marketing job had been filled then it is hard to argue that she was discriminated against because the vacancy no longer existed and she did actually obtain a different job thereafter. If Christine was lied to and put off her application before the job had been awarded to Donald it is submitted that this would amount to direct sex discrimination under the Directive.. Article 2(2) of the Directive suggests that there may be an exception to the general rule in Article 1 where ‘the sex of the worker constitutes a determining factor’ in a job. See for example Stoeckel^[23] on this point. However it is most unlikely that there is anything in a marketing and sales job that would or should inherently exclude women applicants. In terms of United Kingdom law, Christine could bring a claim under s.6(1) of the Sex Discrimination Act 1975 if that is the case on the grounds of suffering discrimination by not being offered the opportunity to apply for the job for reasons of her sex.

The fact that when she complained about her treatment she was told that “women are not really suited to working in marketing and sales” is strong circumstantial evidence of a workplace tendency towards sex discrimination and the Court would take a very dim view of this sentiment (on the relatively safe assumption that there is no cogent objective reason to prefer male employees on these particular facts). This remark may strengthen Christine’s case if she wishes to challenge her employer on the issue.

1177 WORDS

THE END

GLOBAL DOCUMENT WORD COUNT : 3164 (excluding footnotes)

BIBLIOGRAPHY

Consolidated version of the Treaty establishing the European Economic Community:

http://eur-lex.europa.eu/LexUriServ/site/en/oj/2006/ce321/ce32120061229en000103 31.pdf.

EC Legislation 2006-2007, Foster (2006) Blackstone’s Statutes

EU Law – Text Cases and Materials, Craig and de Burca, (2003), Oxford University Press

Law of the European Union, Kent, P., (2001) Longman

Textbook on EC Law, Steiner, Woods and Twigg-Flesner, (2006) Blackstone

Cases as footnoted

1

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^[1] Consolidated version of the Treaty establishing the European Economic Community: http://eur-lex.europa..eu/LexUriServ/site/en/oj/2006/ce321/ce32120061229en000103 31.pdf.

^[2] Renumbered by the Treaty of Amsterdam, this provision was formerly found in Article 48 EC.

^[3] EC Legislation 2006-2007, Foster (2006) Blackstones Statutes.

^[4] See for full text: Official Journal of the European Union, L229/35, 29.6.2004.

^[5] See: http://europa.eu.int/eur-lex/pri/en/oj/dat/2004/l_229/l_22920040629en00350048.pdf.

^[6] EC Legislation 2006-2007, Foster (2006) Blackstone’s Statutes..

^[7] Case 66/85..

^[8] Case 53/81.

^[9] Law of the European Union, Kent, P., (2001) Longman, p.152.

^[10] Case 196/87.

^[11] Case 139/85.

^[12] Case 397/87.

^[13] Case 15/69.

^[14] Case 9/74.

^[15] Case 42/87.

^[16] Case 30/77.

^[17] Case 67/74.

^[18] Case C-348/96.

^[19] Case C-127/92.

^[20] Case 170/84.

^[21] Case 96/80.

^[22] Case 129/79.

^[23] Case C-345/89.