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European Law (2016/2017) Seminar 4
Seminar 4 of the Course European Law (2016/2017), Utrecht University.
These are the questions of Week 5! Week 4 has no seminar questions.
Week 5 (Seminar 4) European Law
Posted workers
Question 1
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.
- Can Paul, who agreed with the wage in his contract of employment, do anything against the difference in wage and on which grounds?
Answer to Question 1a:
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.
- Can Elaine, who agreed with the wage in his contract of employment, do anything against the difference in wage and on which grounds?
Answer to Question 1b:
Elaine does not fall within the scope of Article 45 TFEU. She is a posted worker, the company is posting her to the Netherlands. As a posting worker Elaine falls within the scope of Article 56 TFEU. Article 3(1 /sub c) Posted Work Directive is important. Her period of posting is quite long, but the Directive does not set definitive limits to the duration of the posting. Mostly, the limit upheld is 3 years. Article 3 of the Directive applies so she can claim the minimum wage. Elaine cannot claim equal treatment. There is a difference, because Elaine can’t claim equal treatment, she is not a worker and is less protected. She is entitled to the minimum wage of 14477,80 euro, but nothing more.
- If there is a difference in outcome between Paul’s and Elaine’s case, what is the reason for this difference? Is this difference justified?
Answer to Question 1c:
There is a difference between a worker and a posted worker. The posted worker provides services for a shorter period of time. It is a political and economic decision. If you impose more strict guidelines, you would force the company to pay a much higher wage: it would harm the freedom of services, that’s why there is a lower form of protection.
Elaine is dismissed after two years, since the employer became bored now Elaine kept complaining about her low wage. She argued that under Dutch law a contract of employment for a definite period can be terminated before its expiry only if this is foreseen in the contract itself (which was not the case). Her employer says that this is not the case. Since dismissal law is not part of the posting directive and since unemployment benefits are not mentioned in the directive, she cannot oppose her dismissal with reference to Dutch law and she is not entitled to Dutch unemployment benefits.
d. Is this reference to the posting directive correct?
Answer to Question 1d:
Dismissal rights and consultation rights do not fall under the protection of this Directive (article 3 PWD). Dismissal law is no part of the Directive. The exception from article 3(10) must be interpreted very strictly, and dismissal law and benefits are no part of this exception.
Question 2
Suppose, the Netherlands wishes to reduce the possibilities of agencies for temporary work of other Member States to employ foreign workers in this country, since it fears high unemployment due to the financial crisis. Therefore it wishes to introduce a permit system for foreign offices; a permit is issued only if the owner has a certificate of good behaviour obtained in the Netherlands.
Latviatemp, owned by Ms Mary, who has already run an office for temporary work for 5 years in Latvia and a permit for this work by that country, for which she submitted a certificate of good behaviour, is refused to operate in the Netherlands because of the lack of the certificate.
Can Ms Mary do something against this?
Answer to question 2:
This would be an extra requirement. She can do something about it. The requirement falls under the scope of the article 56 TFEU. The certificate is not justifies, since is not a proportionate requirement. According to the Rüffert-case, par. 33: ‘’You may not go beyond the rules for the minimum protection. It may only be justified if there is protection’’.
Question 3
What is the relevance of the Laval judgment to the Posting Directive? (you can ignore the issue of the way in which Sweden collective agreements are implemented)
Answer to Question 3:
The right guaranteed by workers post in the territory of the Host Member state is limited (Article 3(1)). Par. 80 and 81 of the Laval case.
Question 4
The Posting directive mentions, in Article 3, a number of social rights which have to be observed in case of posting.
There is some discussion whether these minimal social rights constitute protection of the posted workers (view 1), or whether they are meant to protect the national social model of the Member States (view 2). By social model is meant that Member States each have a certain organisation of their labour law and social security law, which provides for a particular level of protection. There are important differences between the old Member States, which have, in general, a relatively high level of protection, and the new ones, which are more dedicated to a liberal model, with little protection. If a Member State with a ‘’cheap model’’ can, without restriction, make use of the differences in protection level, this may undermine the traditional model of the old Member States. The latter is sometimes referred to as social dumping.
Give some arguments for the first view and some for the second view.
Answer to question 4:
Posted workers have at least some protection. Posted workers can gain by the Directive in other Member States. That is quite good for the posted workers.
There can still be a competition about wages, and social dumping. This is unfortunate for the Host Member State. The Sending state takes advantages of the low labour market in the other Host State.
There must be found a balance between a fair competition and a certain level of protection. The Directive tries to do this.
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European Law (2016/2017) Seminars
European Law (2016/2017) Seminar 1
European Law (2016/2017) Seminar 1
Seminar 1 European Law (2016/2017), Utrecht University.
Geanonimiseerd.
European Law Seminar Week 1 (2016/2017)
Freedom of establishment & freedom to provide services
Question 1
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?
Answer to question 1:
You have to choose one of the freedoms:
- Freedom of workers (art. 45 TFEU)
- Freedom of establishment (art. 49 TFEU)
- Freedom of providing services (art. 56 TFEU).
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).
Question 2
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
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European Law (2016/2017) Seminar 2
European Law (2016/2017) Seminar 2
Seminar 2 of the Course European Law (2016/2017), Utrecht University
Week 2
Free movement of workers and persons & EU citizenship
Seminar questions
Question 1
- What is meant by the concept of a worker within the meaning of Article 45 TFEU? What are the two main elements of the activity performed by the migrant worker?
Answer to question 1a:
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).
- What protection is given to a worker by Article 45 TFEU?
Answer to question 1b:
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.
- Can a worker rely on Article 45 TFEU against a private employer?
Answer to question 1c:
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.
Question 2
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
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European Law (2016/2017) Seminar 3
European Law (2016/2017) Seminar 3
Seminar 3 of the Course European Law (2016/2017), Utrecht University
Week 3
The Area of Freedom, Security and Justice
Question 1
- Which policy areas does the Area of Freedom, Security and Justice encompass?
Answer to question 1a:
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 Tampere European Council (1999) endorsed the principle of the mutual recognition of judicial decisions as the foundation of judicial cooperation in both civil and criminal matters. What does this principle entail?
Answer to question 1b:
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.
Question 2
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.
- Is it possible for Sweden to issue a European Arrest Warrant for Mr. Ludy?
Answer to question 2a:
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
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European Law (2016/2017) Seminar 4
European Law (2016/2017) Seminar 4
Seminar 4 of the Course European Law (2016/2017), Utrecht University.
These are the questions of Week 5! Week 4 has no seminar questions.
Week 5 (Seminar 4) European Law
Posted workers
Question 1
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.
- Can Paul, who agreed with the wage in his contract of employment, do anything against the difference in wage and on which grounds?
Answer to Question 1a:
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.
- Can Elaine, who agreed with the wage in his contract of employment, do anything against the difference in wage and on which grounds?
Answer.....read more
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European Law (2016/2017) Seminar 5
European Law (2016/2017) Seminar 5
Seminar 5 of the Course European Law (2016/2017), Utrecht University
This is a seminar about Week 6!
Week 6 European Law (Seminar 5)
Equal treatment in employment
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 TFEU?
Take regard of their personal and material scope and their interpretation by the ECJ.
Answer to question 1:
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.
Question 2
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.
- Is Ms Peters discriminated against on the basis of EU law? If so, does it constitute direct or indirect discrimination, and on what discrimination ground?
Answer to question 2a:
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
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European Law (2016/2017) Seminar 6
European Law (2016/2017) Seminar 6
European Law, Week 7: Transfer of Undertakings & Collective Redundancies (Seminar 6) (2016/2017) Utrecht University.
European Law: Seminar 6 (Week 7) Transfer of undertakings & collective redundancies
Question 1
What is the purpose of the Collective Redundancies Directive and which three, distinct aspects does it regulate for this purpose?
Answer to Question 1:
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:
- Information and consultation with the workers representatives (article 2 Directive)
- Notify the competent public authority in writing of any projected collective redundancies (article 3 Directive) > with all the relevant information
- The redundancies shall take effect not earlier than 30 days after the notification referred to in article 3(1) without prejudice to any provisions governing individual rights with regard to notice of dismissal.
Question 2
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)
Answer to Question 2:
- Collective redundancy is regulated in article 1(1)(a) Directive 98/59/EC. This is a ‘’dismissal 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:
- 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 .....read more
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