2. Quick outline of Euro Eq Law
principles
The of Fundamental Rights
The provisions
Other Treaty Powers re equality
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3. The general principle of
equality
The ECJ/CJEU recognises a “foundational” and “fundamental”
principle of equality that
similar situations must not be
treated differently, nor different situations
treated alike, unless such treatment is
objectively justified
See e.g. Case C-127/07 Arcelor Antlantique AT [23]
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4. The Charter of FR
Principles
Article 52(5) explains that principles have more limited legal
effects than rights:
“The provisions of this Charter which contain principles
may be implemented by legislative and executive acts
taken by institutions, bodies, offices and agencies of the
Union, and by acts of Member States when they are
implementing Union law, in the exercise of their respective
powers. They shall be judicially cognisable only in the
interpretation of such acts and in the ruling on their
legality.” CLOISTERS - ROBIN ALLEN QC
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5. The Charter of FR
Rights
Title III – Equality
20 – Equality before the law
21 – Non- Discrimination
22 - Cultural, religious and linguistic diversity
23 - Equality between women and men
24 - The rights of the child
25 - The rights of the elderly
26 - Integration of persons with disabilities
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6. CLOISTERS - ROBIN ALLEN QC
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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. For the purpose of this Article, ‘pay’ means the ordinary
basic or minimum wage or salary and any other
consideration, whether in cash or in kind, which the worker
receives directly or indirectly, in respect of his
employment, from his employer.
Equal pay without discrimination based on sex means: (a)
that pay for the same work at piece rates shall be
calculated on the basis of the same unit of measurement;
(b) that pay for work at time rates shall be the same for the
same job.
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3. The European Parliament and the Council, acting in
accordance with the ordinary legislative procedure, and after
consulting the Economic and Social Committee, shall adopt
measures to ensure the application of the principle of equal
opportunities and equal treatment of men and women in
matters of employment and occupation, including the principle
of equal pay for equal work or work of equal value.
4. With a view to ensuring full equality in practice between
men and women in working life, the principle of equal
treatment shall not prevent any Member State from
maintaining or adopting measures providing for specific
advantages in order to make it easier for the
underrepresented sex to pursue a vocational activity or to
prevent or compensate for disadvantages in professional
careers.
8. Article 10 TFEU
In defining and implementing its policies and
activities, the Union shall aim to combat
discrimination based on sex, racial or ethnic
origin, religion or belief, disability, age or
sexual orientation.
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9. Article 19 TFEU
(ex Article 13 TEC)
Without prejudice to the other provisions of the
Treaties and within the limits of the powers
conferred by them upon the Union, the Council,
acting unanimously in accordance with a special
legislative procedure and after obtaining the
consent of the European Parliament, may take
appropriate action to combat discrimination based
on sex, racial or ethnic origin, religion or belief,
disability, age or sexual orientation…
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10. THE KEY DIRECTIVES - 1
Race Directive 2000/43/EC
employment,
self-employment,
occupation,
vocational guidance and training including practical work
experience;
social protection, including social security and healthcare;
social advantages;
education;
access to and supply of goods and services, including housing.
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11. THE KEY DIRECTIVES - 2
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Council Directive 2000/78/EC of 27
November 2000 establishing a general
framework for equal treatment in
employment and occupation
Religion and belief
Sexual orientation
Disability
Age
12. FD - Material Provisions
Direct and indirect discrimination,
Victimisation and harassment,
And for disability reasonable
accommodation (= reasonable adjustment)
Employment and vocational training
Note Article 6 – permits derogations on a
social policy basis
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13. GENDER RELATED DIRECTIVES - 1
Directive of 7 July 2010 on the application of the principle of equal
treatment between men and women engaged in an activity in a self-
employed capacity and repealing Council Directive of 11 December
1986
Directive of 8 March 2010 implementing the revised Framework
Agreement on parental leave concluded by BUSINESSEUROPE,
UEAPME, CEEP and ETUC and repealing Directive of 3 June 1996
Directive of the European Parliament and of the Council of 5 July
2006 on the implementation of the principle of equal opportunities
and equal treatment of men and women in matters of employment
and occupation (recast)
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14. GENDER RELATED DIRECTIVES - 2
Directive of 13 December 2004 implementing the principle of equal
treatment between men and women in the access to and supply of goods
and services
Directive of 19 October 1992 on the introduction of measures to encourage
improvements in the safety and health at work of pregnant workers and
workers who have recently given birth or are breastfeeding
Directive of 11 December 1986 on the application of the principle of equal
treatment between men and women engaged in an activity, including
agriculture, in a self-employed capacity, and on the protection of self-
employed women during pregnancy and motherhood
Directive of 19 December 1978 on the progressive implementation of the
principle of equal treatment for men and women in matters of social security
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15. SOURCE OF Igen v Wong
GUIDANCE ON BofP
Example from FD
2…For the purposes of this Directive, the "principle of equal treatment"
shall mean that there shall be no direct or indirect discrimination
whatsoever on any of the grounds referred to
10 Burden of proof …Member States shall take such measures as are
necessary, in accordance with their national judicial systems, to ensure
that, when persons who consider themselves wronged because the
principle of equal treatment has not been applied to them establish,
before a court or other competent authority, facts from which it may be
presumed that there has been direct or indirect discrimination, it shall be
for the respondent to prove that there has been no breach of the principle
of equal treatment.
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16. FORGOTTEN ASPECTS OF THE DIRECTIVES:
FULL EQUALITY IN PRACTICE
Examples
Art 3 of the Gender Recast Directive
“Member States may maintain or adopt measures within the
meaning of Article [157(4) of the TFEU] with a view to ensuring full
equality in practice between men and women in working life.”
Art 5 RD (see also Art 7 of FD)
“Positive action - With a view to ensuring full equality in practice,
the principle of equal treatment shall not prevent any Member
State from maintaining or adopting specific measures to prevent
or compensate for disadvantages linked to racial or ethnic origin.”
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17. Article 23 of the Charter
1. Equality between women and men must be
ensured in all areas, including employment,
work and pay.
2. The principle of equality shall not prevent
the maintenance or adoption of measures
providing for specific advantages in favour of
the under-represented sex.
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18. FORGOTTEN ASPECTS OF THE
DIRECTIVES – 2
LEGAL RIGHTS OF ASSOCIATIONS
Example Art 9 FD
“2. Member States shall ensure that associations, organisations or
other legal entities which have, in accordance with the criteria laid
down by their national law, a legitimate interest in ensuring that
the provisions of this Directive are complied with, may engage,
either on behalf or in support of the complainant, with his or her
approval, in any judicial and/or administrative procedure provided
for the enforcement of obligations under this Directive.”
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