European Union Law Issues - Coursework Example

European Union law European Union Law Introduction The principles of International enable the rationalization of the values to which the European Union orders as a collective legal and political commitment amongst its Member States (Guiraudon 2003). The doctrine that houses the Union law supremacy that parallels that of the international law supremacy insists on the overriding component of the legal demands as set as objectives and values over the ones that are purely domestic in origin. A common view showing that the legal Union is sui generis in character fails to achieve the directing appeal of the values that underlie the projects of the union that includes its legal orders. Protection from discrimination is one of the vital areas that the European Union, EU, law closely affects the lives of people in the European Union. The comprehensive model that has been provided by the European Union’s two anti-discriminative Directives has structured the framework of the European anti-discrimination law for more than a decade1. Some member States did not have most of this anti-discrimination legislation before the transposition of the two Directives. The Directives has introduced original elements such as protection from the discrimination of ages into all Member States. The anti-discriminative directives aim at: 1. Prohibiting discrimination on ethical and racial grounds (Directive 2000/43/EC). It prohibits discrimination on disability, belief, sexual orientation, and belief (Directive 2000/78/EC)2. 2. Providing protection in the main areas of life such as, education, vocational training, employment, healthcare and social security, and unlimited access to and supply of all goods and services that including housing (Directive 2000/43/EC). 3. Prohibiting different forms of discrimination both direct and indirect discrimination, instruction to discriminate, and harassment. 4. Requires the Members to provide ample remedies and sanctions. The Commission receives many complaints annually concerning the mentioned Directives, approximately 20 to 30 cases3. However, the majority of these cases are individual discrimination cases that are concerning incorrect application or transposition of the Directives, therefore, they do not lead to infringement proceeding. A huge number of these cases are with at the national level. The remedies of these different forms of individual discrimination cases are available under the national laws4. They can only be claimed at the national courts, whereby, the Commission scrutinizes a complaint whether he or she has revealed an incorrect application or transposition of the Directives of the Members concerned. The main objectives of the Directive Framework are to improve and develop the employment opportunities a specific group of people and people with disabilities are one of these groups. However, it must be stressed from the beginning that these Frameworks does not provide or give the people with disabilities or protected people with any special advantages. The Frameworks does not in any way assist an individual to get employment because of his or her impairment. Instead, the Framework Directives are planned to function within the system, which is based on meritocracy. The Framework Directives takes a wide perspective in defining the issue of direct discrimination in terms of its legal framework. Like any other non-discrimination laws, the framework requires that a comparison should be drawn with regards to another individual that will help in identifying a less favorable treatment (the comparator). In general, the comparator is the individual who has actually received better treatment; however, there will be some situations where this individual will not exist. For example, in the context of employment, the less favorable treatment will occur in a scenario that may not be competitive immediately, and in this scenario may not require an actual comparator. The Framework ensures that a comparator that is referred to as “would be” or “has been” is treated in a more favorable situation. By doing this, the Framework allows a comparison to be drawn, and not only with an existing comparator, but with also with a person who has previously been in a similar situation and had received better treatment than a comparator in a similar situation. This is referred to as a hypothetical comparator. It is mandatory, therefore, to make sure that any measures made nationally is adopted with the aim of implementing the Frameworks also should avail a wide range of facilities that assist the purpose of the Directives. Albus and Bellatrix can take action in a Ruritanian Court under the European Union Law in regard to their employment. In order to ensure the implementation of equal treatment, the Directive wholly relies on the prohibition of gender discrimination5. Article 2(2) and 3(4) Two new Directives were adopted in 2000, and they were based on TFEU Article 19, whereby there was a regulation in other forms of discrimination, Directive 2000/43 and 2000/78. The two legal documents expanded the extent of forms of discrimination criteria. This also led to the implementation of equal treatment between men and women in accessing and supplying goods and services6. The principle is achieved through the first instance whereby employers are precluded from treating an individual “less favorably” on gender inequality among other disabilities. According to Article 2(2) of the Directive, the less favorable treatment on discrimination or in any protected grounds, will lead or constitute to a direct form of discrimination. This can only be exempted under very limited and specific circumstances. This system demands the most qualified and suitable individual will get the applied job. What this Framework tries to do is to inject and provide an equitable that will offer everyone equal treatment. Therefore, in a situation of disability (for example), the Framework aims to prevent an employer from exploiting or taking advantage of matters that relates to the disability of an individual in doing a specific job. In short, the Directive is designed to enforce more than a duty to ensure that they act fairly whenever they are making decisions that relate to employment, because it will manifest or show the purpose of being able to implement and promote equality principle, and not deviating from the principle. Moreover, it must be noted that, discrimination, unlike other forms of disability, offers extra or additional comparison level for the objective of identifying the comparator in any employment situation. Therefore, in sex or race context, a comparison is drawn between a person of one sex or race, and another person of different sex and race7. However, in terms of disability, a comparison can be drawn not only between disabled and non-disabled individuals but also a comparison can be drawn between different forms of disabilities. It is of great value that the directive should allow such comparisons to be made, and the Framework achieves this by referring to the individual (comparator) as “another.” Various NGOs must work to ensure that these types of comparison are accessible at the various national measures that are designed to implement the Directives. The most vital point to note in this case is that member States must never rely on such legal formulae such as “to whom (individual) does that ground not apply to.” In the definition of direct discrimination, this form of formulation will allow a comparison between an individual (non-disabled) and a complainant within the law8. For the resolution of the Framework in question, the belief of receiving equal treatment means that there is no any form of either direct or indirect discrimination. The major concepts in the EU anti-discrimination law include all direct and indirect discrimination, and harassment and sexual harassment9. The idea or principle of compound discrimination derived from the complexity or identity of a person deserve a different discussion. This form of discrimination occurs when an individual experiences harassment or discrimination for various reasons that form part of the identity of the individual. Direct discrimination evidence in Article 2(2(a)) is defined in the 2000/43, and 2000/78 takes to happen when an individual is treated less favorably than another person. The prohibited discrimination criterion is the main point in each of the cases. The direct discrimination concept lays on the need to compare the actual situation with a hypothetical one, where that form of discrimination does not occur. Consequently an individual can be treated less favorably than another individual on grounds of the discrimination criterion such as a man is compared with a woman, a heterosexual preference with a homosexual preference, and a disabled individual with an able person10. The discrimination that is based on sex, for example, a typical discrimination that includes a job announcement that favors only a single candidate, and also the differentiation within a single sex for pregnancy or maternity reasons. The 2000/43 context includes an employer announcing that he or she will not be employing employees that have foreign origin. The indirect discrimination is taken into account where apparently there is a neutral position, practice, or criterion would put individuals that have a specific belief or religion, disability, a given sexual orientation, age, at a disadvantage compared with an individual unless that criterion is objectively acceptable by legitimate goal and the ways of achieving the set goals are necessary and validated (Article 2(2) b of Directive 2004/43 and 2000/7811. This will regard to people that have a particular disability, the individual or the employer to whom the 2000/78 directive applies is mandated to take the necessary measures that will ensure that the Directives stipulated are maintained and upheld within the required laws, Article 5. Consequently, indirect constitution has unjustified differentiation providing the status of a particular group as a result of a neutral situation. It is important to note that, not all the neutral decisions are discriminatory, because it is important to prove that the earlier made decision was justified according to the provided cases. This means that the objective of the decision was legal and the measures adopted are necessary according to the provided cases12. Therefore, it is vital to meet the two conditions provided before conducting discriminatory acts and making decisions. Regarding equality that is based on sex, the Court of Justice of the European Union, CJEU has ruled on some cases and considers them as direct discrimination if the cases apply to a larger number of women as compared to men. Once the Directives 2000/43 and 2000/78 have been enforced, the definition of these terms appeared in legal texts such as Article 2 (3) of the directives13. Harassment is considered a form of discrimination that is within the first paragraph, when unwarranted conducts relates with any ground that is in Article 1, which takes place with the aim of creating a hostile environment, discriminating, violating the dignity of a person, degrading, and humiliating environment. For harassment to occur, it must satisfy two conditions: 1. There must be unwarranted conduct, which is unwanted conduct from the view of the individual directly affected. 2. The conduct must create a hostile, humiliating, degrading, offensive, and intimidating environment and it must have violated the dignity of the individual. It is unclear if the forms of harassment should be intentional with a given intent (Direct or indirect). However, in sexual harassment cases, the conduct must be considered sexual in nature, physical with an aim of leading to similar effect of harassment cases14. Albus and Bellatrix can claim damages for Ruritania’s infringement of their European Union rights under the Directive 2000/78/EC and general principles. During the time that the Directive was adopted, the age discrimination concept in occupation and employment was new to many people and Member States. This demanded a change the way employers approach age related issues. There is no doubt that age related issues are increasing becoming relevant because of the demographic changes experienced in Europe that are the foundation of most age related laws such as disincentives for early retirement, abolition or increasing the retirement age, and other measures that will help keep older people in the labor market. Article 6 of the Directives stipulates that in given situations, a justification is required in treatment that regards to age15. However, any changes or derogation should be reasonably and objectively be justified by a valid or legitimate aim that also includes the employment policy of the company or firm, as well as vocational training aims, the labor market, and the different ways of achieving the objectives must be valid and necessary. This derogation leaves a significant flexibility to its Member States, and it has led to considerable number of ground-breaking decisions by the national courts and the CJEU that has shed more light on the needs for the admissibility of various treatments regarding age. Article 11 of the document stresses on victimization, and affirms that Member States have introduced measures that are necessary for the protection of their employees against being dismissed or any other adverse treatment by the employer16. Victimization describes the adverse measures that are taken by an individual or an organization (including public authorities and employees) in retaliation to enforce the right for equal treatment (Barbera 2002). One of the most common forms of victimization is whereby an employer or an organization fails to promote or dismisses an employee when he or she complains about unequal treatment. The non-discrimination directive refers to victimization as a form of unlawful discrimination. Victimization is an adverse treatment as a reaction to a proceeding or complaint that aims at enforcing agreement with the principle of equal treatment. All Member states are obliged to make sure that they protect their legal systems. This rule ensures that every employer has the right to work at his or her designated areas and their employers have no right to dismiss them on whatsoever rule. They can work in all areas regardless of the gender, religion, and ethnicity. The rule demands for equal treatment of all workers. Currently, all member states have adopted the necessary measures that they can use to transpose the two Directives in their domestic legal framework. This has helped different Member States to set up bodies and procedures, which are indispensable to implement these Directives. The Member’s judicial and administrative authorities and their equality bodies are in the frontline to ensure a systematic system is implemented that ensures that all individuals are protected on every ground. The European Commission is closely monitoring, supporting and implementing the authorities of its Members. The Commission continues to monitor the context of its annual reports on the application of the European Union charter of the Fundamental Rights. However, the significant setback is to develop ways that they can increase awareness of the existing protection legislation to ensure practical and better application and implementation of the Directives17. Article 18 of the Directive requires the police, the armed forces, emergency services, and prisons to maintain and recruit in employment individuals who do not have the required skills to perform the various ranges of functions, which they may be called to perform in relation to the legitimate aim of preserving and maintaining the operational capacity of the services. Moreover, Article 19 of the Directives demands the Member States to continue to protect and defend the combat effectiveness of the armed forces. The Member States may decide not to apply the provisions that are in the Directives that concern age and disability to all or some part of the armed forces. Member States that adopt these provisions must define the range of the chosen derogation. Under Article 6(2) the member states are allowed to access occupational security schemes that fix age limits for the admission of potential beneficiaries so as to get the age limits when the beneficiaries may be entitled to invalidity benefits and retirement, which include fixing various ages for group of employees, or they use age criteria in calculations in these schemes, provided that this criteria does not lead to sex discrimination. Article 3(4) specifies that member states to allow or exempt their armed forces from age positions of the Framework Directive. However, such exemption only applies for disability cases in the Framework Directive18. The legislation must work together with appropriate policies to fund awareness and improve the facilities that already exist within the EU programs for social solidarity, (progress) and employment. This work must be strengthened by the Commission in conjunction with its Member States to ensure achievement of tangible improvement and awareness through the Union. It also strengthens the functions of national equality and makes them watchdogs that improve on the equality factors. The EU enhances the effectiveness of bodies that enhance equality and enables them to reach their full potential, and then promoting equal treatment in ways that are accessible to each member state and faster, less costly ways that are enforced through the national courts for all the concerned parties. I conducted my research on different journals and existing legislation on the European Union Law 2000/43 and 2000/78. I carefully studied the provided Articles, and related each case with the provided Articles in the document. The sources that I used contain all the required information that assisted me to complete the assignment successfully. Most of the resources used are law books and journals that contain the facts about the topic and relating them to my cases of study. Still, I found out that the European Commission and its Member States make an intensive effort to achieve their full potential of the entire two Directives in an effort of protecting the fundamental rights to each individual and treatment in the European Union. However, legislation alone will not be enough to achieve full equality. Bibliography Barbera, Marzia. "Not the Same? The Judicial Role in the New Community Anti‐Discrimination Law Context." Industrial law journal 31, no. 1 (2002): 82-91. Fredman, Sandra. "Equality: a new generation?" Industrial Law Journal 30, no. 2 (2001): 145- 168. Guiraudon, Virginie. "The constitution of a European immigration policy domain: a political sociology approach." Journal of European Public Policy 10, no. 2 (2003): 263-282. Schiek, Dagmar. "A new framework on equal treatment of persons in EC law?." European Law Journal 8, no. 2 (2002): 290-314. Schmidt, Marlene. "Principle of Non-Discrimination in Respect of Age: Dimensions of the ECJs Mangold Judgment, The." German LJ 7 (2006): 505. Whittle, Richard. "The Framework Directive for equal treatment in employment and occupation: an analysis from a disability rights perspective." European Law Review 27, no. 3 (2002): 303-326. Read More