Seminar 5 of the Course European Law (2016/2017), Utrecht University
This is a seminar about Week 6!
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 TFEU?
Take regard of their personal and material scope and their interpretation by the ECJ.
Differences: The discrimination prohibition on grounds of age, handicap, belief and sexual orientation fall within the scope of the Directive. This Directive concerns equal treatment in employment, without cross-border element. It’s about internal labour situations. Therefore, the Directive has to be implemented in national law. The Directive applies to the public sector. The Directive is based on article 19 TFEU.
The discrimination prohibition on the ground of nationality does concern a cross-border element. It can be invoked in other Member States. Article 45 TFEU has a community meaning and is applicable in all of the Member States. Article 45 TFEU does not apply to the public service (par. 4). Article 45 TFEU could be regarded as a lex specialis to article 18 TFEU.
Similarity: Both discrimination prohibitions have the objective to protect workers in the European Union, but the Directive also applies to self-employed persons. The Directive has a broader scope. This is a difference, but they both concern workers.
A private school employs 100 female teachers, of which 40 work part time, and 50 male teachers, of which 10 work part time. Ms. Peters, who works 4 hours a day, is a member of the school’s works council (WsC). According to national law, members of the WsC can perform their WsC’s tasks in working time and are being paid their salary according to their employment contract. One day, the members of the WC take a full day-training course in labour law. The full time members receive payment according to 8 hours, however Ms Peters is only paid according to 4 hours because this is her contractual working time per day.
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European Law (2016/2017) Seminar 1Seminar 1 European Law (2016/2017), Utrecht University.
Geanonimiseerd.
Jay Booth is a famous doctor who holds a medical biology PhD from Trinity College Dublin. Although he has several years of experience and has extensively published in the area of postmenopausal birth, he cannot find a job in the currently declining Irish job-market. Therefore, he starts to provide technical and medical advice to a Bosnian private clinic where it is possible for postmenopausal women to give birth. Jay goes to Bosnia quite often. There, he analyses specific cases and organises meetings with the staff on these cases. The clinic pays him a small fortune for every case he works on. The clinic also provides him with the necessary facilities and equipment. Jay is further completely independent to organise his activities.
Can you explain which Treaty freedom Jay exercises?
You have to choose one of the freedoms:
Jay has no freedom of workers (art. 45 TFEU), because he is not in service of a company, there is no subordination and he is independent.
Jay has no freedom of establishment. You must pursue ‘’an economic activity, through a fixed establishment in another Member State for an indefinite period’’, according to the Viking-case, par. 70.
The concept of establishment is a Community national to participate, on a stable and continuous basis, in the economic life of a Member State other than his State of origin and to profit therefrom (Gebhard-case, par. 25). This is not the case here, because Jay is not working for an indefinite period.
Providing of services is temporary (par. 26): you look at the duration of the service, its regularity, periodicity or continuity.
Providing services (Art. 56 TFEU)
Jay is providing services to the Italian private clinic (Article 56 TFEU). Jay is providing a medical service advice, which could be seen as activities of the professions (sub d). Jay gets remuneration, he gets paid for his services. Medical services fall within the scope of Article 56 TFEU. It is temporary, because he’s not continuously working on cases. He goes to Bosnia quite often, so he travels a lot, but he returns to Ireland. It’s not on a regular basis, there is no contract between Jay and Bosnia. The case doesn’t say anything about regularity. It doesn’t matter that Bosnia does offer facilities and equipment. This does not mean that Jay may not equip himself (par. 27).
Suppose an English bookmaker, Doris Reader UK, established in the United Kingdom, carries on business as a bookmaker under a licence granted pursuant to the Betting, Gaming and Lotteries Act, which authorises Doris to carry on its activities in the United Kingdom and abroad. Doris offers the European public an extensive range of fixed sports bets on national, European and world sporting events.
On behalf of Doris, Petroni offers on the.....read more
European Law (2016/2017) Seminar 2Seminar 2 of the Course European Law (2016/2017), Utrecht University
According to the case Lawry Blum, par. 12. The term ‘worker’ covers ‘’any person performing for remuneration work the nature of which is not determined by himself for and under the control of another, regardless of the legal nature of the employment relationship’’.
The two main elements are therefore: remuneration and work in subordination. For a certain period of time, a person performs services for and under the direction of another person in return for which he or she receives remuneration (par 16).
At first, there is a freedom of movement for workers within the European Union, which means they should be able to move freely to work in other Member States. Secondly, there is a prohibition of discrimination based on nationality between workers of the Member States as regards employment, remuneration and other conditions of work and employment, under article 45 (2) TFEU.
Yes, this is possible. Article 45 TFEU is not applicable when there is no cross-border element, or when the employee works in the public service (art. 45 (4) TFEU). This is an exception on the article. Under all other circumstances, the article is applicable. According to the Bosman case, par. 93: the Article has direct effect. This means that the worker can invoke the article. A worker can rely on Article 45 against a private employer, this is direct horizontal effect: the worker can invoke article 45 TFEU against the employer. When a worker wants to invoke article 45 TFEU against the Host Member State, this is vertical direct effect.
The lighthouse guard of the lighthouse ‘Vuurlicht’ on the Dutch island Vlieland will soon retire. The Ministry of Transport and Public Works, which is responsible for lighthouses, has recently placed an advertisement for the appointment of a new lighthouse guard. The Italian Mr. Veccio is the only applicant. Mr. Veccio has finished his study in Italy but couldn’t find a job. Therefore he tries to find a job in the Netherlands. He stays now in Vlieland with his sister and brother in law who support for his living. Suppose, you work as a lawyer at the Ministry of Transport and Public Works and you are being asked to make notes with regard to the following arguments brought forward by the personnel department to refuse Mr. Veccio the job of lighthouse guard......read more
European Law (2016/2017) Seminar 3Seminar 3 of the Course European Law (2016/2017), Utrecht University
The Area of Freedom, Security and Justice is regulated by Article 3(2) TEU: ‘The Union shall offer its citizens an area of freedom, security and justice without internal frontiers, in which the free movement of persons is ensured in conjunction with appropriate measures with respect to external border controls, asylum, immigration and the prevention and combating of crime.’
According to this Article, the policy areas are border controls, immigration, asylum and the prevention and combating of crime.
The principle of the mutual recognition means that Member States have trust in one another and they recognize the judicial decisions of the other Member States, without checking the procedure that was followed. Member States should have the mutual trust that the procedure in the other Member State was right and the rights were guaranteed. This principle entails that the Member States work together and they trust each other. That’s why they recognize each other’s decisions.
There’s a distinction between criminal matters and civil matters.
Mr. Ludy, a French citizen, has been living in Denmark since 2007. In 2011 he attends a seminar in Stockholm on “War and Social Media”. Mr. Ludy is one of the keynote speakers of the seminar. Mr. Ludy had arranged in advance that he could stay in the apartment of one of the organizers of the seminar, Miss Anna. That night Mr. Ludy and Miss Anna, reportedly had sex. The day after Mr. Ludy returns to Denmark. A few months later a Swedish Court sentenced Mr. Ludy in absentia to 10 years’ imprisonment for rape. No summon was served because the Swedish authorities were not aware of Mr. Ludy’s whereabouts. The Prosecutor’s Office of Stockholm issued an European Arrest Warrant is against Mr. Ludy for the execution of the sentence. Mr. Ludy gives himself up to the Copenhagen Police and is taken into a surrender hearing at the Court of Copenhagen. Before the Court of Copenhagen Mr. Ludy argues that he was not aware of the proceedings in Sweden. He believes his right of defense has been infringed. The decision of sentence has not yet been served to him in anyway. Look at the Council Framework Decision on the European Arrest Warrant.
Yes, it is possible to issue a European Arrest Warrant. According to Article 2 Council Framework Decision (CFD), there are to requirements which.....read more
European Law (2016/2017) Seminar 4Seminar 4 of the Course European Law (2016/2017), Utrecht University.
These are the questions of Week 5! Week 4 has no seminar questions.
Paul Robowski, of Polish nationality, (26 years old) is working in Poland, where he earns 350 euros a month. On New year’s eve 2012 he decides that he wants to have a better life and wants to earn a higher wage in the future. He decides to apply for a job at Philips in Eindhoven (Netherlands), where he is subsequently offered an employment contract for 3 years. His wage is 2500 euros a month. In the beginning Paul is exhilarated as he earns about 7 times as much as before. Then he notices that his colleague, who is of the same age and has the same work experience and who does the same work earns 3000 euros. Paul goes to the personnel management and they tell him that they pay a lower wage to employees of the new Member States, since they earn a much lower income in the State of origin.
Paul is a worker, he falls within the scope of article 45 TFEU. Therefore, he can rely on the equality of treatment (article 45 (2) TFEU). He can claim the same wage as the national workers. There is also secondary legislation: The Regulation on the freedom for workers within the Union (article 7(1) Regulation). Paul can invoke article 45 TFEU, which protects free movement of the workers and requires equal treatment of workers. This provision has also horizontal direct effect. He can invoke the provisions against the employer.
Paul’s sister Elaine (24 years old), working and residing in Poland, hears about Paul’s wage and his success stories of his stay in that fairytale country and wishes to go the Netherlands as well. Fortunately, a company in her home town offers her a job in the Netherlands. She will be employed by this company and then sent to Nieuwegein for three years to work as a nurse for a private care institution. She will be offered a good wage. When she arrives in Nieuwegein in October 2013, she is offered by the Polish company a contract of employment for 3 years under Polish labour law, which says that she is offered 1250 euros a month for a full-time job. She hears from a colleague that she is paid below the statutory minimum wage in the Netherlands, which is 1477,80 euro. She also hears that the Dutch nurses in the clinic of her age and work experience doing the same work receive 1750 euros.
European Law (2016/2017) Seminar 5Seminar 5 of the Course European Law (2016/2017), Utrecht University
This is a seminar about Week 6!
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 TFEU?
Take regard of their personal and material scope and their interpretation by the ECJ.
Differences: The discrimination prohibition on grounds of age, handicap, belief and sexual orientation fall within the scope of the Directive. This Directive concerns equal treatment in employment, without cross-border element. It’s about internal labour situations. Therefore, the Directive has to be implemented in national law. The Directive applies to the public sector. The Directive is based on article 19 TFEU.
The discrimination prohibition on the ground of nationality does concern a cross-border element. It can be invoked in other Member States. Article 45 TFEU has a community meaning and is applicable in all of the Member States. Article 45 TFEU does not apply to the public service (par. 4). Article 45 TFEU could be regarded as a lex specialis to article 18 TFEU.
Similarity: Both discrimination prohibitions have the objective to protect workers in the European Union, but the Directive also applies to self-employed persons. The Directive has a broader scope. This is a difference, but they both concern workers.
A private school employs 100 female teachers, of which 40 work part time, and 50 male teachers, of which 10 work part time. Ms. Peters, who works 4 hours a day, is a member of the school’s works council (WsC). According to national law, members of the WsC can perform their WsC’s tasks in working time and are being paid their salary according to their employment contract. One day, the members of the WC take a full day-training course in labour law. The full time members receive payment according to 8 hours, however Ms Peters is only paid according to 4 hours because this is her contractual working time per day.
Mention the primary legislation first, so that is article 157 TFEU. Also, mention the Directive 2006/54 EC! Also use the Bilka case, par. 27.
This question concerns the discrimination on ground of sex: There is no direct discrimination, because Ms. Peters is not treated less favourably because she works part-time and her colleagues are working full-time. However, the training is a full day, and this will cost Ms. Peters 8 working hours. However, she only receives remuneration for 4 hours.
There is indirect discrimination, because the neutral provision in national law, brings Ms. Peters in disadvantage, because.....read more
European Law (2016/2017) Seminar 6European Law, Week 7: Transfer of Undertakings & Collective Redundancies (Seminar 6) (2016/2017) Utrecht University.
What is the purpose of the Collective Redundancies Directive and which three, distinct aspects does it regulate for this purpose?
The purpose of the Directive is in preamble 2 of the Directive: ‘’Greater protection should be afforder to workers in the event of collective redundancies while taking into account the need for balanced economic and social development within the Community.’’
The Collective Redundancies Directive is the Directive 1998/59/EC (collective redundancies). The purpose of the Directive is to protect workers. The Directive obliges the enterprise concerned to start negotiations with workers representatives. To see whether collective redundancies can be avoided, the number of workers affected can be reduced, and whether the consequences can be mitigated by recourse to accompanying social measures.
According to article 1, collective redundancies apply to dismissals effected by an employer for one or more reasons not related to the individual workers concerned where, according to the choice of the Member States, the number of redundancies is, (i) either over a period of 30 days; at least 10 in establishments normally employing more than 20 and less than 100 workers, at last 10% of the number of workers in establishments normally employing at least 100 but less than 30 workers, at least 30 in establishments normally employing 300 workers or more, (ii) or, over a period of 90 days, at least 20, whatever the number of workers normally employed in the establishments in question.
The Directive regulates that the employer should do three things, before he can dismiss employees:
Does the Collective Redundancies contain a definition on the following concepts?
- If so, how should they be interpreted?
- If not, what do they entail according to case law?
a. Collective redundancy (collectief ontslag)
b. Workers’ representatives (vertegenwoordigers van werknemers)
c. Notion of establishment (notie van vestiging)
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