European legislation
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European legislation Presentation Transcript

  • 1. EQUALITY LAW: THE CONTRIBUTION FROM ROBIN ALLEN QC CLOISTERS - ROBIN ALLEN QC EUROPEAN LAW 1
  • 2. Quick outline of Euro Eq Law principles The of Fundamental Rights The provisions Other Treaty Powers re equality CLOISTERS - ROBIN ALLEN QC EUROPEAN LAW 2
  • 3. The general principle of equality The ECJ/CJEU recognises a “foundational” and “fundamental” principle of equality that similar situations must not be treated differently, nor different situations treated alike, unless such treatment is objectively justified See e.g. Case C-127/07 Arcelor Antlantique AT [23] CLOISTERS - ROBIN ALLEN QC EUROPEAN LAW 3
  • 4. The Charter of FR Principles Article 52(5) explains that principles have more limited legal effects than rights: “The provisions of this Charter which contain principles may be implemented by legislative and executive acts taken by institutions, bodies, offices and agencies of the Union, and by acts of Member States when they are implementing Union law, in the exercise of their respective powers. They shall be judicially cognisable only in the interpretation of such acts and in the ruling on their legality.” CLOISTERS - ROBIN ALLEN QC EUROPEAN LAW 4
  • 5. The Charter of FR Rights Title III – Equality 20 – Equality before the law 21 – Non- Discrimination 22 - Cultural, religious and linguistic diversity 23 - Equality between women and men 24 - The rights of the child 25 - The rights of the elderly 26 - Integration of persons with disabilities CLOISTERS - ROBIN ALLEN QC EUROPEAN LAW 5
  • 6. CLOISTERS - ROBIN ALLEN QC EUROPEAN LAW 6 Article 157 TFEU 1. Each Member State shall ensure that the principle of equal pay for male and female workers for equal work or work of equal value is applied. 2. For the purpose of this Article, ‘pay’ means the ordinary basic or minimum wage or salary and any other consideration, whether in cash or in kind, which the worker receives directly or indirectly, in respect of his employment, from his employer. Equal pay without discrimination based on sex means: (a) that pay for the same work at piece rates shall be calculated on the basis of the same unit of measurement; (b) that pay for work at time rates shall be the same for the same job.
  • 7. CLOISTERS - ROBIN ALLEN QC EUROPEAN LAW 7 3. The European Parliament and the Council, acting in accordance with the ordinary legislative procedure, and after consulting the Economic and Social Committee, shall adopt measures to ensure the application of the principle of equal opportunities and equal treatment of men and women in matters of employment and occupation, including the principle of equal pay for equal work or work of equal value. 4. With a view to ensuring full equality in practice between men and women in working life, the principle of equal treatment shall not prevent any Member State from maintaining or adopting measures providing for specific advantages in order to make it easier for the underrepresented sex to pursue a vocational activity or to prevent or compensate for disadvantages in professional careers.
  • 8. Article 10 TFEU In defining and implementing its policies and activities, the Union shall aim to combat discrimination based on sex, racial or ethnic origin, religion or belief, disability, age or sexual orientation. CLOISTERS - ROBIN ALLEN QC EUROPEAN LAW 8
  • 9. Article 19 TFEU (ex Article 13 TEC) Without prejudice to the other provisions of the Treaties and within the limits of the powers conferred by them upon the Union, the Council, acting unanimously in accordance with a special legislative procedure and after obtaining the consent of the European Parliament, may take appropriate action to combat discrimination based on sex, racial or ethnic origin, religion or belief, disability, age or sexual orientation… CLOISTERS - ROBIN ALLEN QC EUROPEAN LAW 9
  • 10. THE KEY DIRECTIVES - 1 Race Directive 2000/43/EC employment, self-employment, occupation, vocational guidance and training including practical work experience; social protection, including social security and healthcare; social advantages; education; access to and supply of goods and services, including housing. CLOISTERS - ROBIN ALLEN QC EUROPEAN LAW 10
  • 11. THE KEY DIRECTIVES - 2 CLOISTERS - ROBIN ALLEN QC EUROPEAN LAW 11 Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation Religion and belief Sexual orientation Disability Age
  • 12. FD - Material Provisions Direct and indirect discrimination, Victimisation and harassment, And for disability reasonable accommodation (= reasonable adjustment) Employment and vocational training Note Article 6 – permits derogations on a social policy basis CLOISTERS - ROBIN ALLEN QC EUROPEAN LAW 12
  • 13. GENDER RELATED DIRECTIVES - 1 Directive of 7 July 2010 on the application of the principle of equal treatment between men and women engaged in an activity in a self- employed capacity and repealing Council Directive of 11 December 1986 Directive of 8 March 2010 implementing the revised Framework Agreement on parental leave concluded by BUSINESSEUROPE, UEAPME, CEEP and ETUC and repealing Directive of 3 June 1996 Directive of the European Parliament and of the Council of 5 July 2006 on the implementation of the principle of equal opportunities and equal treatment of men and women in matters of employment and occupation (recast) CLOISTERS - ROBIN ALLEN QC EUROPEAN LAW 13
  • 14. GENDER RELATED DIRECTIVES - 2 Directive of 13 December 2004 implementing the principle of equal treatment between men and women in the access to and supply of goods and services Directive of 19 October 1992 on the introduction of measures to encourage improvements in the safety and health at work of pregnant workers and workers who have recently given birth or are breastfeeding Directive of 11 December 1986 on the application of the principle of equal treatment between men and women engaged in an activity, including agriculture, in a self-employed capacity, and on the protection of self- employed women during pregnancy and motherhood Directive of 19 December 1978 on the progressive implementation of the principle of equal treatment for men and women in matters of social security CLOISTERS - ROBIN ALLEN QC EUROPEAN LAW 14
  • 15. SOURCE OF Igen v Wong GUIDANCE ON BofP Example from FD 2…For the purposes of this Directive, the "principle of equal treatment" shall mean that there shall be no direct or indirect discrimination whatsoever on any of the grounds referred to 10 Burden of proof …Member States shall take such measures as are necessary, in accordance with their national judicial systems, to ensure that, when persons who consider themselves wronged because the principle of equal treatment has not been applied to them establish, before a court or other competent authority, facts from which it may be presumed that there has been direct or indirect discrimination, it shall be for the respondent to prove that there has been no breach of the principle of equal treatment. CLOISTERS - ROBIN ALLEN QC EUROPEAN LAW 15
  • 16. FORGOTTEN ASPECTS OF THE DIRECTIVES: FULL EQUALITY IN PRACTICE Examples Art 3 of the Gender Recast Directive “Member States may maintain or adopt measures within the meaning of Article [157(4) of the TFEU] with a view to ensuring full equality in practice between men and women in working life.” Art 5 RD (see also Art 7 of FD) “Positive action - With a view to ensuring full equality in practice, the principle of equal treatment shall not prevent any Member State from maintaining or adopting specific measures to prevent or compensate for disadvantages linked to racial or ethnic origin.” CLOISTERS - ROBIN ALLEN QC EUROPEAN LAW 16
  • 17. Article 23 of the Charter 1. Equality between women and men must be ensured in all areas, including employment, work and pay. 2. The principle of equality shall not prevent the maintenance or adoption of measures providing for specific advantages in favour of the under-represented sex. CLOISTERS - ROBIN ALLEN QC EUROPEAN LAW 17
  • 18. FORGOTTEN ASPECTS OF THE DIRECTIVES – 2 LEGAL RIGHTS OF ASSOCIATIONS Example Art 9 FD “2. Member States shall ensure that associations, organisations or other legal entities which have, in accordance with the criteria laid down by their national law, a legitimate interest in ensuring that the provisions of this Directive are complied with, may engage, either on behalf or in support of the complainant, with his or her approval, in any judicial and/or administrative procedure provided for the enforcement of obligations under this Directive.” CLOISTERS - ROBIN ALLEN QC EUROPEAN LAW 18
  • 19. EQUALITY LAW: THE CONTRIBUTION FROM ROBIN ALLEN QC CLOISTERS - ROBIN ALLEN QC EUROPEAN LAW 19