WEEK 3 – EQUAL TREATMENT IN EMPLOYMENT
READING
Literature
● Peers and Barnard Ch. 20, Section 4
Legislation and cases
● Directive 2006/54/EC 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) (Sex Discrimination
Directive)
● Council Directive 2000/43/EC of 29 June 2000 implementing the principle of equal
treatment between persons irrespective of racial or ethnic origin (Race Discrimination
Directive)
● Council Directive 2000/78/EC of 27 November 2000 establishing a general framework
for equal treatment in employment and occupation (Framework Directive)
● Case C-170/84 (Bilka-Kaufhaus)
● Case C-157/15 (Achbita/G4S Secure Solutions)
● Case C-555/07 (Kücükdeveci)
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?
Take regard of their personal and material scope and their interpretation by the ECJ.
Similarities:
- Art. 45 sub 2 TFEU/art. 2 Framework Directive -> abolition of any discrimination
for workers/employment and occupation
o The Court decided this, it was later included in the Treaty.
- Art. 45 sub 3/art. 3 Framework Directive -> free choice of employment etc.
- Both are applicable to workers (art. 45/art. 1 Directive)
, Differences:
- Art. 45 sub 4 TFEU/Framework Directive -> TFEU excludes public services, while
the Framework is applicable for every service (art. 3(1))
o However, in fact the difference is minimal because the Court has defined
public sector in a very strict and minimal way. The Court defined
‘employment in the public service’ as “those posts which involve direct or
indirect participation in the exercise of powers conferred by public law
and in the discharge of functions whose purpose is to safeguard the
general interests of the State or of other public authorities and which
therefore require a special relationship or allegiance to the State on the
part of persons occupying them and reciprocity of rights and duties which
form the foundation of the bond of nationality”.
- For art. 45 there needs to be a cross-border element, while the framework
directive is also applicable in internal situations.
- Art. 45 TFEU is based on art. 18 TFEU about the common market, Framework
Directive is based on art. 19 TFEU about fundamental human rights.
o Look at art. 19 TFEU, because the Directive mentions art. 19 TFEU as
basis.
- Harassment and instructions to discrimination are only included in the
framework directive, not in the TFEU. So, the directive goes further than the
TFEU in this case.
o Harassment: “unwanted conduct related to any of the grounds referred to
in art. 1 takes place with the purpose or effect of violating the dignity of a
person and of creating an intimidating, hostile, degrading, humiliating or
offensive movement.” (art. 2(3)).
- Justifications in the TFEU are public policy, public safety and public health, while
justifications in the Directive asks for a legitimate aim, appropriate and
necessary. According to case law of the Court any justification on ground of art.
45 TFEU needs to be proportionate, so it needs to be appropriate and necessary.
However, in the Directive direct discrimination cannot be justified (art. 2(2a). It
only provides justification grounds for indirect discrimination. In the Treaty you
can justify direct discrimination as well as indirect discrimination on the
justification grounds mentioned.
QUESTION 2
The Dutch Minister of Social Affairs adopted a legislative measure in order to combat the
rising unemployment among young people in this time of financial crisis. This temporary
measure entails that workers under 27 can enter more than three consecutive, fixed
term employment contracts without the contract being automatically converted into a
READING
Literature
● Peers and Barnard Ch. 20, Section 4
Legislation and cases
● Directive 2006/54/EC 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) (Sex Discrimination
Directive)
● Council Directive 2000/43/EC of 29 June 2000 implementing the principle of equal
treatment between persons irrespective of racial or ethnic origin (Race Discrimination
Directive)
● Council Directive 2000/78/EC of 27 November 2000 establishing a general framework
for equal treatment in employment and occupation (Framework Directive)
● Case C-170/84 (Bilka-Kaufhaus)
● Case C-157/15 (Achbita/G4S Secure Solutions)
● Case C-555/07 (Kücükdeveci)
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?
Take regard of their personal and material scope and their interpretation by the ECJ.
Similarities:
- Art. 45 sub 2 TFEU/art. 2 Framework Directive -> abolition of any discrimination
for workers/employment and occupation
o The Court decided this, it was later included in the Treaty.
- Art. 45 sub 3/art. 3 Framework Directive -> free choice of employment etc.
- Both are applicable to workers (art. 45/art. 1 Directive)
, Differences:
- Art. 45 sub 4 TFEU/Framework Directive -> TFEU excludes public services, while
the Framework is applicable for every service (art. 3(1))
o However, in fact the difference is minimal because the Court has defined
public sector in a very strict and minimal way. The Court defined
‘employment in the public service’ as “those posts which involve direct or
indirect participation in the exercise of powers conferred by public law
and in the discharge of functions whose purpose is to safeguard the
general interests of the State or of other public authorities and which
therefore require a special relationship or allegiance to the State on the
part of persons occupying them and reciprocity of rights and duties which
form the foundation of the bond of nationality”.
- For art. 45 there needs to be a cross-border element, while the framework
directive is also applicable in internal situations.
- Art. 45 TFEU is based on art. 18 TFEU about the common market, Framework
Directive is based on art. 19 TFEU about fundamental human rights.
o Look at art. 19 TFEU, because the Directive mentions art. 19 TFEU as
basis.
- Harassment and instructions to discrimination are only included in the
framework directive, not in the TFEU. So, the directive goes further than the
TFEU in this case.
o Harassment: “unwanted conduct related to any of the grounds referred to
in art. 1 takes place with the purpose or effect of violating the dignity of a
person and of creating an intimidating, hostile, degrading, humiliating or
offensive movement.” (art. 2(3)).
- Justifications in the TFEU are public policy, public safety and public health, while
justifications in the Directive asks for a legitimate aim, appropriate and
necessary. According to case law of the Court any justification on ground of art.
45 TFEU needs to be proportionate, so it needs to be appropriate and necessary.
However, in the Directive direct discrimination cannot be justified (art. 2(2a). It
only provides justification grounds for indirect discrimination. In the Treaty you
can justify direct discrimination as well as indirect discrimination on the
justification grounds mentioned.
QUESTION 2
The Dutch Minister of Social Affairs adopted a legislative measure in order to combat the
rising unemployment among young people in this time of financial crisis. This temporary
measure entails that workers under 27 can enter more than three consecutive, fixed
term employment contracts without the contract being automatically converted into a
