Non-discrimination and equal treatment PDF

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6 – Non-discrimination and equal treatment Identify and critically evaluate the main ‘equality provisions’ in the TFEU?  Article 2 TEU - Fundamental value of the EU – equality is amongst other values  Article 3 TEU – equality is an objective and aim.  Article 119 EEC Treaty, now Article 157 TFEU;...

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6 – Non-discrimination and equal treatment 1. Identify and critically evaluate the main ‘equality provisions’ in the TFEU?  Article 2 TEU - Fundamental value of the EU – equality is amongst other values  Article 3 TEU – equality is an objective and aim.  Article 119 EEC Treaty, now Article 157 TFEU;  Articles 18-19 TFEU; o Art 18 – discrimination for free movement of persons. o Art 19 – enables secondary legislation to be enacted which prevents discrimination on other grounds, based on nationality, sexual orientation and belief. o Article 157 TFEU. 1. Each Member State shall ensure that the principle of equal pay for male and female workers for equal work or work of equal value is applied.

2. Defrenne v Sabena established the direct effect of European gender equality provisions. Discuss.  q 3. Do you agree that the Racial Equality Directive has a broader legal scope than EU gender equality legislation?  Council Directive 2000/43/EC of 29 June 2000 implementing the principle of equal treatment between persons irrespective of racial or ethnic origin Direct discrimination (Article 2(2)(a) of both Directives): where one person is treated less favourably than another is, has been or would be treated in a comparable situation’ on the grounds or race, religion, sexual orientation, […]. Indirect discrimination (Article 2(2)(b) of both Directives):an apparently neutral provision, criterion or practice’ would put persons of a racial or ethnic origin, or having a particular religion or belief, a particular disability, a particular age, or a particular sexual orientation at a ‘disadvantage’ compared to other persons.

4. What does ‘positive discrimination’ mean in the EU context?  Case C-450/93 Kalanke – ‘Positive discrimination’ measures go further than ‘positive action’ by conferring an advantage on the ‘under-represented sex’.  The CJEU held that national laws which guaranteed women absolute and unconditional priority for appointment or promotion went beyond the scope of ‘positive action’ measures and amounted to prohibited ‘positive discrimination’.  Case C-409/95 Marschall - distinguished Kalanke because men tended to be promoted more (fear of women interrupting their careers for children (pregnancy and breastfeeding) as well as household traditional duties) so women could be prioritised but there must be a saving clause (provision allows men to be appointed if it is justified)

6 – Non-discrimination and equal treatment 

Positive discrimination goes beyond positive action by conferring an advantage on the ‘under-represented sex’, such as prioritising employment or promotion. It is not permitted under EU law. However, positive discrimination measures containing a ‘saving clause’ are permitted under EU law.

 5. According to the Court in Mangold (para 77) ‘it is the responsibility of the national court to guarantee the full effectiveness of the general principle of non-discrimination’. What is, in your opinion, the significance of recognising equality as a general principle of EU law? ...