Klaus was refused the equal pension entitlement and equal amount of holidays as a UK national. As mentioned above this is discrimination on grounds of nationality. Regulation 1612/68: Article 7 (2). This applies as well to Astrid, which has been refused free banking.
Klaus received social benefits when working under the regulation 1612/86 but ceased after three months of unemployment. The law State that a person is free to live in another Member State as long as he can support herself or is classed as dependant of someone or is a worker. Klaus was not filing any of these conditions for a short time.
The rights of the Klaus’s spouse and children are under the regulation 1612/68 and Directive 68/360.
Worker’s families
- The following shall, irrespective of their nationality, have the right to install themselves with a worker who is a national of a Member State and who is employed in the territory of another Member State: (a) his spouse and their descendants who are under 21 years or are dependants.(As long as the worker as adequate housing available)
12. The children of a national of a Member State who is or has been employed in the territory of another Member State shall be admitted to the State’s general educational, apprenticeship and vocational training courses under the same conditions as the nationals of the State, if such children are residing in its territory.
- Every citizen of the Union shall have the rights to move and reside freely within the territory of the Member States, subject to the limitations and conditions including in this treaty.
Equality of treatment:
On a practical level, equality of treatment means that the University or college in the Member State where the person study must accept you under the same conditions as nationals and not, for examples, require the student to pay higher fees. Similarly, if a grant is paid to nationals of the country where the student is to cover course fees, he should as well be able to receive it. The equality of treatment that the student is entitled to covers the payment of courses fees, however the principle does not apply to support or maintenance grants intended to help students pay their daily living expenses. Of course, Member States may also provide grants or other forms of assistance to foreign students, on their own initiative.
The freedom of movement of workers is mainly based on the principle of non-discrimination on the ground of nationality, while the freedom of non-wage earners to move within the Community is, generally speaking, expressed by the right of establishment and the right to provide service. The directive 90/366, which was adopted in 1990, replaced later by the Directive 93/96, New Article 7(3) provides rights to student undertaking a vocational course at a University in another Member State whereby the student can reside in the UK for the duration of her course. The ambiguity is in the definition of a vocational training. Is a secretarial course falls into this definition? If it does Sophie would be able to claim the same rights as a UK national. However if it does not she could claim that she is a child of a worker and could claim benefits under social advantage.
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Centre public d’aide sociale de Courcelles v. Lebon (Case 316/85)[1987]:Was a French national who was living and looking for work in Belgium while claiming benefits.
Sophie and Heinrich’s parents are workers from a Member State so they are entitled to take up any activity as en employed person however, if their parents were deported Heinrich could take a part-time job it will be, qualify as a worker. He will be able to claim educational rights under the community law and these rights are set out in secondary legislation, in Article 7(3) of regulation 1612/68. He could claim all financial benefits available to workers. Otherwise, he could apply for a grant or try to be help by an exchange program. Heinrich would have to look by himself for the organisation that could give him a financial help. Unfortunately to be entitling to a loan in the UK it is necessary to have resided in the territory for at least three years and have the British nationality.
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Casagrande v. Landeshauptsadt Munchen(Case 9/74) 1974:C was a child of a deceased Italian who had been working in Germany. His application for an educational grant was rejected because it was only payable to Germans nationals. The Bavarian Administrative Court inserted an Article 234 (ex 177).
Article 12 places Sophie and Heinrich in the same position as the children of nationals of the UK. A child can stay in the host country even if the parents had to go back to their country so they could choose to stay if their parents were deported.
- Cases 389 and 390/87, Echternach and Moritz [1989] ECR 723, [1990] 2 cmlr 305.
Limitations to free Movement of workers:
If you are employed involving a stay of more than three months, you must apply for a residence permit. You are entitled to this permit as a national of a Member State. The limitations specified in Article 39(3) E.C able an EU country to take any decision in relation to the residence on grounds of public order, public security or public health (Article 39(3)) (ex48 (3)), the person must be aware o the reasons for this decision.
This cannot be applying to a group, but only to individual members of the group
Directive 64/221 states that it must be “personal conduct”:
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(Van Duyn v. Home Office (41/74)1974). Mrs Van Duyn (Dutch) sought a place for a job for the Church of Scientology in the UK.AT the time the Church of Scientology was not illegal in the UK but was considered dangerous for the public. She was refused to take up the work. She sues in High Court and that made an Article 177reference.
A conviction for drug offences is not sufficient ground for deportation:
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Donatella Calfa (Case C-348/96)[1999]: Mrs Calfa(Italian) on holiday in Crete, has been charged by the Greek authorities with possession of prohibited drugs for her personal use. The ECJ ruled that automatic expulsion following a criminal conviction infringed Directive 64/221 because it took not account of personal conduct.
The personal conduct of the individual and the nature of the threat must be considering before any expulsion may be justified under Directive 64/221.
Consequently, Klaus and Astrid could argue on the fact that their convictions are enough to deport them. Defrauding a Bank and handling stolen cars do no have a serious threat towards the public. A EU country is entitled to refuse to issue or renew a residence permit, or to require a person to leave its territory, if the person constitutes a serious threat to public order or public secretary. In addition, having a criminal record is not, in itself, sufficient grounds to justify such a measure automatically. Additionally the regulation1251/70 gives the worker the right to remain in the territory of a Member State after having been employing there.
The right to reside:
Council directive of 15 October 1968 on the abolition of restrictions on movement and residence within the Community for workers of Member States and their families (68/360/EEC)
Article 4 and 9 provide freely a resident permit for 5 years renewal to someone from another Member State.
- Member State shall be entitled to residents rights.
- As proof of the right of residence, a document entitled “Residence Permit for a National of a Member State of the EEC” shall be issued. This document must include a statement that it has been issued pursuant to Regulation (EEC) No 1612/68 and the measures taken by the Member State for the implementation of the present directive.
Article 2 of regulation 1612/68 requires Member State to able E.U citizens to leave or go to another Member State simply showing an identity card or passport valid in the Community.
To put in a nutshell, under the directive 64/221 and the Article 9 Klaus and his family can appeal to the UK authorities. Taking into account that they have been the victims of discriminations during their residence in the UK, this could suport their case of not being deporting. Besides if Klaus and his family based their defence on the elements mentioned above (Law of free Movement of Person), they have a great chance of not being expulsing and will have the opportunity to benefit fully of their rights as E.U Members State.
Question 3:
Teresa, Gillian and Rona should use their rights under the Law of Sex Discrimination to be able to obtain their wishes, which have been illegally restrained by the company Big Plc.
Discrimination can occur in two ways:
- Direct discrimination occurs when men and women are differently, for example in term of pay, solely on the basis of sex (e.g.: Pregnancy)
- Indirect discrimination occurs when men and women are treated differently because an apparently neutral provision, practice recruitment, social security…
In the first part of the E.C Treaty is mentioning the principle of equality. Directive 97/80 and European Law on Sex Discrimination is bases upon the Article 141 (ex 119) E.C deal with equality in employment. The council adopted on the 10th of February 1975 the Directive 75/117/EEC on the principle of equal pay for men and woman. Directive 76/207 as regards on access to employment, vocational training, promotion… Directive 79/7 is on equal treatment in occupational and social security scheme.
Directive 75/117/EEC
- The principle of equal treatment for men and women in respect of access to employment and vocational training and promotion and in respect of other working conditions also appears to be necessary; whereas equal treatment for male and female workers constitutes one of the objectives of the Community.
- The principle of equal treatment shall mean that there shall be no discrimination on grounds of sec either directly or indirectly by reference in particular to marital or family statut.
3. This directive shall be without prejudice to provisions concerning the protection of women, particularly as regards pregnancy and maternity.
4. This directive shall be without prejudice to measures to promote equal
opportunity for men and women.
- Application of the principle of equal treatment means that there shall be no discrimination on grounds of sex in the condition, including selection criteria, for access to all jobs or posts, whatever the sector or branch of activity.
- To this end Member States shall take the measures necessary to ensure that it is apply.
Member States shall introduce into their national legal systems such measures as are necessary to enable all persons to apply to them the principle of equal treatment within the meaning of Articles 3, 4 and 5 to pursue their claims.
Equal treatment in occupational social security schemes:
They are two broad types of social security:
- Statutory social security is set up by national legislation. It covers, for instance, protection in case of sickness, invalidity, old age…
- Occupational social security is provided by an individual employer’s scheme. The scheme can be optional or compulsory.
You have the right to equal benefits when they are provided by an occupational social security scheme for the same risks as those covered by statutory schemes.
Thus, discrimination based on sex is prohibited in occupational social security schemes, including pensionable age.
Rona was not been able to take part of the company’s pension scheme because she works part-time and that she might leave to have a family as well.
Exclusion of part-time workers from entitlement may breach the Article 141 where they’re more female than male part-timers.
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Rinner-kuhn v. FWW (Case 171/88) 1989:Part-time employees who worked 10 hours a week or 45 hours a month were excluded from entitlement to sick pay.
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Bilka- Kaufhaus GmbH. Weber von Hartz (Case 170/84) 1980:Part-time workers were excluded from an occupational pension scheme unless they have been employed for 15 years. Full-time workers were similarly restricted. Nearly all part-time employees were female.
Barber v. Guardian Royal Exchange Assurance Group (Case 262/88): Mr Barber belonged to a pension fund established by his employers. Under the scheme women were entitled to receive their pension at the age of 57 but men at 62. This case has required occupational pension schemes to harmonise the retirement ages for men and women.
Rona should not be excluded from the pension for the reasons given which is a breach of Article 141 (ex 119.
It a breach of the Article 2(3), Directives 76/207, to refuse to employ a women on the grounds of pregnancy. And indirectly this is what happened among other things when Rona was rejected as a part-time employee o the pension scheme because she could “leave to have a family.”
Access to employment:
Employers should not discriminate between men and women when recruiting workers. However, there is an exception to the non-discrimination rule where the gender of the workers is an essential factor in the job.
All employees in the administration sector are female and are male in the sale department. The collective bargaining arrangement result in lower pay for a group composed in majority by women, collective agreement must respect the principal of equal pay for equal work, which is not the case here.
Teresa worked for 10 years in Big Plc in the administration department and she has been promote by half of the amount of her male colleague working in the sales department and who has been working in the company for 10 years too.
Promotion:
Employers should not discriminate when deciding which employees to promote. They must consider workers in terms of aspects such as their skills, education, performance and seniority, and not in term of gender.
You have the right to know which criteria are used to determine your pay. To help assess whether workers of different sex are paid equally for work of equal value, The European Commission has issued a “Code of practice on the implementation of equal pay for work of equal vale for women and men”.
To determine whether the work performed by a man and a woman are an equal value; a comparison of their work is required. Only the nature of the job is relevant and factors like part-time/full- time are not.
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Commission v. Smith (Case 129/79)[1980]: Has showed that comparability between two jobs doesn’t require the jobs to be similar or in the same establishment.
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Rummler v.Dato Druck (Case 237/85) 1986: The applicant challenged the criteria under a job classification scheme, claiming that he should receive a higher pay.
The right to equal pay for equal work and work of equal value applies to both the public and private sector.
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Defrenne v. Sabena (Case 43/75) 1976: Ms D, an airline stewardess employed by the Belgian airline Sabena, was paid less and has to retired earlier. She claimed it was a breach of Article 119(now 141) of the Treaty.
Equal treatment in the workplace:
Employers are not allowed to apply different working conditions to men and women doing the same job.
Teresa should therefore be entitled to equal pay and treatment at work. If focusing on the advantages that the sales department has regarding the company car and petrol allowance, this could be put under the classification of “pay”. Article 141.
“Pay” means the ordinary basic or minimum wage or salary and any other consideration, in cash or kind, which the worker receives, directly or indirectly, in respect of his job.
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Garland v. British Rail Engineering ltd. (Case 12/81). [1988] 2 AC 751: Grant of special travel facilities to former employees. The original nature of benefit is not relevant.
Gillian can claims Sex Discrimination under the Article 141 due to the fax that according to her employee sales “ is not really a woman’s job”. (Breach of the Article.)
To conclude, Teresa, Rona and Gillian have strong cases mostly under the Sex discrimination Law. However the company has not explained the reasons of these differences yet. Nevertheless it will be hard for the company to explain objectively to the court the motivations behind these inequalities instead of under Sex Discrimination.
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