1. European Labour Law
Jean Monnet Chair of EU Labour Law Academic Year Silvia Borelli: Please, check the web site for any materials distributed during the course! Lesson 6

2. EU Antidiscrimination Law
EU Antidiscrimination Law deals with:
Prohibition of discrimination on ground of nationality
Gender equality
Tackling Discrimination

3. Prohibition of discrimination on ground of nationality
“Freedom of movement for workers shall be secured within the Union. Such freedom of movement shall entail the abolition of any discrimination based on nationality between workers of the Member States as regards employment, remuneration and other conditions of work and employment” (art. 45 TFEU).
Reg. 492/2011
«(6) The right of freedom of movement […] requires that equality of treatment be ensured in fact and in law in respect of all matters relating to the actual pursuit of activities as employed persons and to eligibility for housing, and also that obstacles to the mobility of workers be eliminated, in particular as regards the conditions for the integration of the worker’s family into the host country” (whereas).
Art. 7
“A worker who is a national of a Member State may not, in the territory of another Member State, be treated differently from national workers by reason of his nationality in respect of any conditions of employment and work, in particular as regards remuneration, dismissal, and, should he become unemployed, reinstatement or re-employment.
He shall enjoy the same social and tax advantages as national workers. […]
Any clause of a collective or individual agreement or of any other collective regulation concerning eligibility for employment, remuneration and other conditions of work or dismissal shall be null and void in so far as it lays down or authorises discriminatory conditions in respect of workers who are nationals of the other Member States”.

4. Prohibition of discrimination on ground of nationality
Art. 18 TFUE “Within the scope of application of the Treaties, and without prejudice to any special provisions contained therein, any discrimination on grounds of nationality shall be prohibited. The European Parliament and the Council, acting in accordance with the ordinary legislative procedure, may adopt rules designed to prohibit such discrimination”. Art. 21 CFREU “Within the scope of application of the Treaty establishing the European Community and of the Treaty on European Union, and without prejudice to the special provisions of those Treaties, any discrimination on grounds of nationality shall be prohibited”. “Citizens of the Union lawfully resident in the territory of a host Member State can rely on Article 6 [18] of the Treaty in all situations which fall within the scope ratione materiae of Community law. Citizenship of the Union is destined to be the fundamental status of nationals of the Member States, enabling those who find themselves in the same situation to enjoy the same treatment in law irrespective of their nationality, subject to such exceptions as are expressly provided for” (CGUE, Collins)

5. Prohibition of discrimination on ground of nationality
Prohibition of direct discrimination: discrimination by reason of nationality Prohibition of indirect discrimination: «conditions imposed by national law must be regarded as indirectly discriminatory where, although applicable irrespective of nationality, they affect essentially migrant workers. It is otherwise only if those provisions are justified by objective considerations independent of the nationality of the workers concerned, and if they are proportionate to the legitimate aim pursued by the national law. […] unless objectively justified and proportionate to its aim, a provision of national law must be regarded as indirectly discriminatory if it is intrinsically able to affect migrant workers more than national workers and if there is a consequent risk that it will place the former at a particular disadvantage” (CGUE, O’Flynn) Prohibition of obstacle to freedom of movement: «the provisions of the Treaty relating to freedom of movement for persons […] preclude measures which might place Community citizens at a disadvantage when they wish to pursue an economic activity in the territory of another Member State”. These measures can be justified only if they pursue a legitimate aim compatible with the Treaty, are justified by pressing reasons of public interest and their application ensures achievement of the aim in question and does not go beyond what is necessary for that purpose (CGUE, Bosmann).

6. Prohibition of discrimination on ground of nationality
DIRECTIVE 2014/54/EU on measures facilitating the exercise of rights conferred on workers in the context of freedom of movement for workers Art. 3 Member States shall ensure that judicial procedures are available to all Union workers and members of their family who consider that they have suffered or are suffering from unjustified restrictions and obstacles to their right to free movement or who consider themselves wronged by a failure to apply the principle of equal treatment to them. Member States shall ensure that associations, organisations, including the social partners, or other legal entities, which have a legitimate interest in ensuring that the Directive is complied with, may engage, either on behalf of or in support of, Union workers and members of their family, with their approval, in any judicial and/or administrative procedure provided for the enforcement of the rights referred to in Article 1. Art. 4 Each Member State shall designate one or more bodies for the promotion, analysis, monitoring and support of equal treatment of Union workers and members of their family without discrimination on grounds of nationality, unjustified restrictions or obstacles to their right to free movement and shall make the necessary arrangements for the proper functioning of such bodies.

7. Gender Equality
The Treaty of Rome of 1957 required equal pay between men and women, and provided the competence to develop the first Equality Directives (Art. 119): the Equal Pay Directive of 1975 (Directive 75/117) and the Equal Treatment Directive of 1976 (Directive 76/207), which prohibited discrimination on grounds of gender in access to employment, vocational training and promotion, and working conditions. Art. 157 TFEU «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. […] 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. 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. Gender Equality
Art. 8 TFEU «In all its activities, the Union shall aim to eliminate inequalities, and to promote equality, between men and women”. Art. 23 CFREU «Equality between men and women must be ensured in all areas, including employment, work and pay. The principle of equality shall not prevent the maintenance or adoption of measures providing for specific advantages in favour of the under-represented sex”.

9. Gender Equality
Council Directive 79/7/EEC of 19 December 1978 on the progressive implementation of the principle of equal treatment for men and women in matters of social security.
The Principle of equal treatment protects European citizens against discrimination on grounds of sex as regards:
the scope of the schemes and the conditions of access thereto;
the obligation to contribute and the calculation of contributions;
the calculation of benefits and the conditions governing the duration and retention of entitlement to benefit.
Directive 2006/54/EC 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)
This Directive prohibits direct or indirect discrimination between men and women concerning the conditions of:
recruitment, access to employment and self-employment;
dismissals;
vocational training and promotion;
membership of workers’ or employers’ organisations.
Moreover, the Directive affirms that:
Women and men are treated equally under occupational social security schemes
At the end of maternal, paternal or adoption leave, employees have the right to a) return to their jobs or to equivalent posts on conditions which are no less favourable to them; b) benefit from any improvement in working conditions to which they would have been entitled during their absence.
Defence of rights
Promoting equal treatment

10. Gender Equality
Directive 2010/41/EU of the European Parliament and of the Council 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 86/613/EEC. The principle of equal treatment between men and women prohibits all forms of discrimination based on sex. This principle must be complied with when establishing, equipping or extending a business, as well as when launching or extending any other form of self-employed activity. This Directive enables EU countries to adopt positive action measures. Such public measures are aimed at ensuring full equality between men and women in working life, for example by promoting business creation by women. Maternity rights.

11. Gender Equality
Direct discrimination: discrimination caused when one person is treated less favourably than another is, has been or would be treated in a comparable situation;
Indirect discrimination: discrimination caused when an apparently neutral provision, criterion or practice would put persons of one sex at a particular disadvantage compared with other persons, unless that provision, criterion or practice is objectively justified by a legitimate aim, and the means of achieving that aim are appropriate and necessary.
EU law obliges Member States to ensure that the burden of proof for cases of sex discrimination in their legal systems lies with the defendant. This means that provided the plaintiff can establish, before a court, facts from which direct or indirect discrimination may be presumed to exist, it is for the defendant to prove that there has been no breach of the principle of equal treatment.
Directive 2006/54/EC on gender equality in employment and occupation require Member States to designate and make the necessary arrangements for a body or bodies for the promotion, analysis, monitoring and support of equal treatment of all persons without discrimination.

12. Tackling Discrimination
The Treaty of Amsterdam of 1997 introduced a specific power to combat discrimination on a wide range of grounds of sex, racial or ethnic origin, religion or belief, disability, age or sexual orientation. It led both to the introduction of a series of new Equality Directives as well as to the revision of the existing Gender Equality Directives. Art. 19 TFEU “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. By way of derogation from paragraph 1, the European Parliament and the Council, acting in accordance with the ordinary legislative procedure, may adopt the basic principles of Union incentive measures, excluding any harmonisation of the laws and regulations of the Member States, to support action taken by the Member States in order to contribute to the achievement of the objectives referred to in paragraph 1”.

13. Tackling Discrimination
Art. 11 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”. Art. 21 CFREU “Any discrimination based on any ground such as sex, race, colour, ethnic or social origin, genetic features, language, religion or belief, political or any other opinion, membership of a national minority, property, birth, disability, age or sexual orientation shall be prohibited”.

14. Tackling Discrimination
Directive 2000/43 against discrimination on grounds of race and ethnic origin:
Protection against discrimination on grounds of racial or ethnic origin in employment and training, education, social protection, membership of organisations and access to goods and services;
Definitions of direct and indirect discrimination and harassment.
Positive action to ensure full equality in practice;
The right to complain through a judicial or administrative procedure, with appropriate penalties for those who discriminate;
Limited exceptions to the principle of equal treatment (where a difference in treatment on the grounds of race or ethnic origin is a genuine occupational requirement);
Shared burden of proof in civil and administrative cases: victims must provide evidence of alleged discrimination; defendants must prove that there has been no breach of the equal treatment principle;
An organisation in each EU country to promote equal treatment and assist victims of racial discrimination.

15. Tackling Discrimination
Directive 2000/78 against discrimination at work on grounds of religion or belief, disability, age or sexual orientation:
Principle of equal treatment in employment and training irrespective of religion or belief, disability, age or sexual orientation;
Same rules as the Racial Equality Directive as regards definitions of discrimination and harassment, positive action, rights of redress and sharing the burden of proof;
Employers must make reasonable efforts to accommodate disabled people who are qualified to participate in training or paid employment;
Limited exceptions to the principle of equal treatment where the ethos of a religious organisation needs to be preserved, or where an employer legitimately needs an employee to be from a certain age group.

16. Tackling Discrimination
Direct discrimination occurs where a person is:
treated less favourably than another person is, has been or would be;
the other person is in a comparable situation; and
the treatment is on grounds of racial or ethnic origin (in relation to the Race Directive), religion or belief, sexual orientation, or disability (in relation to the Framework Directive).
In relation to the grounds of age, a different test applies as direct age discrimination can be justified.
Indirect discrimination occurs where:
an apparently neutral provision, criterion or practice is applied to persons of a protected group (identified by racial or ethnic origin, religion or belief, sexual orientation, disability or age);
the provision, criterion or practice would put that group at a particular disadvantage compared with other persons; and
the provision, criterion or practice is not objectively justified.
In order to establish that a provision, criterion or practice is objectively justified, it must be shown that there is both a legitimate aim involved, and that the means of achieving the aim are “appropriate and necessary”.

17. Tackling Discrimination
In relation to direct and indirect discrimination, an exception to the general principle of non-discrimination applies where there are genuine occupation requirements relating to a protected characteristic. There will be no unlawful discrimination where it can be shown that:
by reason of the nature of the particular occupational activities or context in which they are carried out;
the characteristic (race, religion or belief, sexual orientation, disability or age) is a genuine and determining occupational requirement;
provided the objective is legitimate and the requirement is proportionate.
There is also a specific exception relating to genuine occupational requirements and religion or belief. Article 4(2) of the Framework Directive provides for this exception in relation to occupational activities in churches and other public or private organisations with a religious ethos. It states that:
a difference of treatment based on a person’s religion or belief will not constitute discrimination where;
by reason of the nature of the activities or context in which they are carried out;
a person’s religion or belief constitute a genuine, legitimate and justified occupational requirement.
Under Article 6 of the Framework Directive age discrimination is not unlawful where:
differences of treatment on grounds of age are objectively and reasonably justified by a legitimate aim (such as legitimate employment policy, labour market and vocational training objectives); and
if the means of achieving that aim are appropriate and necessary.

18. Tackling Discrimination
Positive action: Their aim is to permit measures that prevent or compensate for the disadvantage suffered by the protected groups in employment (Race and Framework Directives) or other sectors such as education and the provision of services (Race Directive). The aim of positive action provisions is therefore to promote greater equality through policies, programmes or other measures. Case law has established that in order to be lawful positive action measures must:
address a particular disadvantage of a group which is supported by evidence;
be proportionate; and
only continue as long as the disadvantage continues.
Article 5 of the Framework Directive requires employers to:
take appropriate measures where needed in a particular case;
enable disabled persons to have access to, participate in or advance in employment,
unless such measures would impose a disproportionate burden on the employer. Failure to make reasonable accommodation for disabled persons will constitute a form of discrimination under Article 2 of the Framework Directive.

19. Tackling Discrimination
The Race and Framework Directives require that:
where claimants prove facts from which it can be presumed that there has been direct or indirect discrimination;
it will then be for the respondent to prove that there was in fact no discrimination.
In other words, the burden of proof will shift to the respondent, once the claimant has proved facts from which discrimination can be presumed. The reason this procedure was introduced is because discrimination claims can be very hard to prove. It was therefore considered appropriate to specify in the Equality Directives how the burden of proof should operate for discrimination claims in all the Member States.
The Race and Framework Directives require Member States to set out the rules on sanctions for the infringement of the national laws implementing the Directives. The sanctions may consist of payment of compensation to the victim or other measures such as requiring the organisation to change its policies or practices. The sanctions must be effective, proportionate and dissuasive.

20. References
ERA e-learning course on European Union (EU) anti-discrimination law
Handbook on European non-discrimination law
Know your rights. Protection from discrimination