13 Feb EU ANTI-DISCRIMINATION LEGISLATION IN THE FIELD OF EMPLOYMENT
The principle of non-discrimination is one of the basic principles in force in the European Union. Everyone is equal before the law and everyone has the right to a life free from discrimination. Currently, in all 28 Member States of the European Union, citizens can benefit from their anti-discrimination rights, thanks to EU anti-discrimination legislation and the Commission’s enforcement. The Framework Directive 2000/78/EC ( which establishing a general framework for equal treatment in employment and occupation) and The Race Directive 2000/43/EC (implementing the principle of equal treatment between persons irrespective of racial or ethnic origin), adopted in 2000, function in every Member State. However there is still a problem in Member States to apply these regulations in practice. National authorities still need to ensure effective, practical protection for victims of discrimination. The biggest challenges include the lack of public awareness about the rights they are entitled to and the understatement of the number
of cases of discrimination. To support this process, the practicing lawyers in the field of equality law should continually rise their qualifications and conduct some trainings. Also they should be conducted in the EU Member States trainings or social actions to raise the social awareness about their rights while looking for a job in a other EU country.
The principle of equal treatment in the employment of migrant workers and domestic workers is regulated both in primary and secondary law of the European Union. Article 18 TFEU provides that all discrimination based on nationality is prohibited. The principle of non-discrimination is also defined in art. 19 TFEU, which allows the Council to apply the necessary measures to combat discrimination. Article 45 of the Treaty provides, however, that freedom of movement of workers covers within its scope the complete abolition of discrimination on grounds of nationality between workers from the Member States in the field of employment, remuneration and other working conditions. It is worth mentioning that the abovementioned article has direct effect, which basically means that if the phenomenon of discrimination on the basis of citizenship occurs, an employee, on the basis of this article, may pursue his claims before the national court. When it comes to the secondary law, the prohibition of discrimination is contained in Regulation No. 492/2011 of the European Parliament and of the Council and in art. 24 in Directive
2004/38/EC. It follows from these provisions that a citizen of the Union, as an employee, cannot be treated in another Member State differently than nationals of that country, mainly in the areas of employment, remuneration, dismissal and re-admission. What’s more, it benefits from identical tax and social benefits as other employees hired in the company. It is the duty of the employer to provide such an worker the opportunity to participate in the same vocational training. The principle of equal treatment also applies to the possibility of joining trade unions. Furthermore, in the light of EU law, all collective labor agreements and other similar agreements are invalid if they apply discriminatory criteria to employees who are citizens of another EU member.
It follows from the above that every worker in the same situation should be treated in the same way, regardless of its citizenship. The principle of equal treatment consists, therefore, in the elimination of all unjustified and harmful practices that differentiate the situation of employees,
if these practices are based on such an element, which on the grounds of law cannot give the base
to a different treatment. Therefore, it can be concluded that the prohibition of discrimination against employees on grounds of nationality is one of the basic principles of freedom of movement
of employees, which has a fundamental importance. The establishment of this prohibition at the supranational level is preventive and is justified by fears of a worse treatment of workers from other Member States. EU law requires compliance with this principle from any national entity that uses
or creates law. Thus, it means that it covers, among others, national legislators, trade unions and individual employers. However, it should be added that the abovementioned provisions don’t impose on national entities the obligation to treat the citizens of other Member States in a privileged manner. Local workers cannot bear the negative consequences resulting from better treatment of migrant workers.
As regards the subjective scope of the prohibition of discrimination, it covers not only employees currently employed in the host country, but also job applicants and former employees, as well as their family members. The subject scope, in turn, covers the whole range of issues to which labor law applies. Working or employment conditions should be interpreted as the whole legal situation of an employee related to his work. Equal treatment must be guaranteed not only legally but also factually, and include both direct and indirect discrimination. Direct discrimination occurs when national laws directly diversify the status of national and migrant workers, because of their nationality. According to the Regulation 492/2011, any Acts, regulations and administrative acts as well as administrative practices of a Member State which limit the possibility of applying for employment and submitting job offers, are prohibited. It is unacceptable to make the right to start and provide work depending on the conditions that do not apply to the citizens of other Member States. When it comes to the indirect discrimination, it occurs in cases where criteria other than citizenship can be considered discriminatory. They are so-called hidden forms of discrimination which, by applying different criteria of differentiation, have in fact the same effect. Indirect discrimination will, for instance, be a refusal to take into account the length of work that the employee has provided in another Member State.
However, EU law does not apply to a purely internal situation. This creates the problem
of the so-called reverse discrimination, on the ground of which an employee who is a citizen
of the Union, but who works in his country of origin, cannot rely on EU law in a dispute
with a local employer. The Court of Justice in the Volker Steen case stated that “a citizen
of a Member State who has never exercised his right to move freely within the EU cannot rely on Article 7 and 48 TEWG “. The abovementioned thesis was also confirmed by the Tribunal
in the latest case law, in the case of Renneberg. A condition sine qua non, which can be invoked under EU law, is therefore to employ a migrant worker in another Member State.
In the light of the Court’s case law, contrary to art. 45 TFEU is to establish or maintain national laws that apply irrespective of the nationality of the workers concerned but constitute an obstacle to their free movement within the Union. As a result, it is also contrary to EU law
to impose measures hindering the freedom of movement of employees. Therefore, it is forbidden for states to apply laws that, irrespective of citizenship, hinder the freedom of migration of citizens of other Union members and local citizens. As an example we can mention transfer rules introduced and used by national football associations, which were limiting the possibility of changing the club’s membership by the player ( the case of Bosman).
Provisions that directly discriminate citizens of other countries within European Union can only be introduced if such a possibility is provided for in Union law. This is confirmed by the provisions on restricting access to employment for citizens of another Member State in the public administration of the host country or provisions introducing a transitional period for the new EU Member after signing the Accession Treaty. When it comes to the indirect discrimination
and measures to block/limit migration, there is a condition of justifying the necessity of introducing such regulations. In the judgment in Commission v Germany the Court of Justice stated that ‘in so far as the provision of national law is not objectively justified and is not proportionate to the objective pursued, it must be regarded as indirectly discriminatory if it by its very nature may have a greater location of migrant workers rather than domestic workers, and conclude that there
is a risk of putting the former at a disadvantage “. In addition, a restrictive measure may be allowed only if it is proved that it has a purpose compatible with the Treaty and is justified by an ‘overriding reason in the public interest’. It must therefore satisfy the conditions of purpose, equity, effectiveness and proportionality.
As a result, we can observe that the Court of Justice, in its case-law, expands the powers of migrant workers in the EU on the one side, and on the other side uses the restrictive interpretation as regards the admissibility of exceptions to the principle of equal treatment of workers on the basis of their nationality. It should also be recognized that the prohibition of discrimination against domestic and migrant workers is the foundation of the freedom of movement of workers within the European Union.