Principle of Equality in EU Law - Essay Example

European law Introduction One of the five important principles of administration of justice of the European Union is “equality and non-discrimination”. The principle of equality is about the treatment of similarly placed individuals equally unless it is objectively justified otherwise. As such, discrimination can be allowed within a framework allowing for comparisons in respect of race, sex, nationality, colour and religion. Where the situations are objectively different, equality principles cannot be applied. Equality is therefore found in various treaty provisions and Art 157 TFEU (ex Art 141EC) in particular mandates that ‘men and women should receive equal pay for work’ as held in Defrenne v Sabena (1976). The case involved a claim from a Belgian woman employee whose compensation on termination of her employment was less than that given to her male counterparts performing identical duties. ECJ held that Article 157 TEFU providing for equal pay for men and women was directly effective provision of the Treaty enabling private citizens to sue their Governments or their agencies in the national courts of their state for remedy against sex discrimination (Tovey, 2010-2011). In Defrenne, it was made clear that the principle of equal for equal work would not only be binding on the member state but also private employers as guided by Article 119 of EC later Art 141) which sets out criteria to identify direct and overt discrimination (Defrenne v Sabena , 1976). In this connection, Article 157 defines payment of wage or salary and any other consideration whether in cash of kind received by an employee directly or indirectly. Further, in Defrenne, it was held social security schemes or benefits such as retirement pensions directly governed by legislations fell outside the scope of Art 157 TEFU. Case of Kate Now, regarding the case of Kate of personnel department aggrieved over her less favourable treatment than the employees of marketing department, article 4 of the Directive 2006/54/EC needs to be examined. Article 4 of the Directive states that for the same work or work of equal value, there should be no discrimination in pay on the basis of sex. Kate’s case is that pay for marketing department employees is one third higher than that of her own pay. There is no case that marketing department employee’s pay differed in terms of sex. In this case, all the marketing department employees are males except for one part-time female employee. There is no case that she is being paid lesser a rate of pay than her male counter parts receive. It is quite clear that Kate is a personnel department employee whose nature of work is different from that of a marketing department employee. Hence, there is no discrimination based on sex for the same work or work of equal value. Marketing work and Personnel department work cannot be said to be of equal value nor of the works of same nature or both are identical. Secondly, Article 5 of the Directive also prohibits less favourable treatment or benefit direct or indirect under occupational social security schemes based on sex. This is without prejudice to article 4 said above. Thus, there is no prohibition from contributing more to a different category of job of different nature. Marketing is different from personnel work. Hence, the higher contribution to male employees is not a violation of the Directive or Article 157 under which the Directive has been promulgated (Eur-Lex, 2006). Case of Sharon Sharon is paid lesser pay than paid to male employees of the same marketing department she works in and also is denied of sick pay on ground that she is apart-time staff whereas higher pay and sick are applicable to only full time employees. A part-time male employee would also have received lesser pay as received by Sharon. Here, it should be noted that the employer has paid lesser pay and not paid any sick pay, not on the basis of sex but on the basis of nature of work. It has been held that adverse treatment of part-time workers is not prima facie discriminatory as they can affect both sexes (Routledge, 2011-2012). In Jenkins v Kingsgate (Clothing Productions) ltd (1981), it has been held that pay differences between the full time and part time staff regardless of gender is not in breach of Article 157 TFEU if the rate per hour has been applied without any difference based on sex but on differences that are objectively justified. The intention has been to gain a commercial advantage by engaging cheap labour and hence it has been interpreted by English court as discrimination bases on objective justification. The effect of Jenkins has been diluted by CJ stating that the finding of the National court is limited by the principle of proportionality. I.e the employer must show a genuine of need of his company and the lesser pay is suitable for achieving the objective and necessary. Thus, in Rinner-Kuhn, the German Government could not sustain the argument that part-time workers are less dependent on their earning than full time workers. Subsequent cases have been decided that differences in pay could be objectively justified in order to meet the requirement of Article 157 (Routledge, 2011-2012). In Specialalarbejderforbundet i Danmark v Dansk Industri (1995), the employer has two sets of employees consisting separately of men and women with a lesser rate of pay for women employees. The Court held that the differences in output between the group of male workers and female workers did not amount to be the reason for discrimination based on sex as a justifiable factor not attributable to sexual discrimination (Moens & Trone, 2010) Hence, Sharon’s employer must show that there is objective justification for the discrimination in both her reduced pay as well ineligibility for sick pay. Tina’s case Tina was not selected although she ranked highest in the selection criteria because of her being a female that would further worsen the gender imbalance at the workplace. Article 13 (1) TEFU empowers European Commission to prevent discrimination based on sex, race, religion etc (Christian, 2010). The case of the employer is not sustainable since her rejection based on sex clearly violates the equality principles. Tina has already been adjudged the best candidate. But in order to correct the gender imbalance, a lesser qualified candidate has been selected. This discrimination does not give room for the employer to resort to objective justification such as economic advantage. Actually this will prove to be an economic disadvantage. If the employer’s contention is that Tina has been rejected for her poor performance; it would not amount to sex discrimination. Tina’s rejection by the employer is therefore a violation of equality principle that calls for invoking of article 13 (1) TEFU though it lacks direct effect. The Equality Act 2010 (Originally The Sex Discrimination Act 1975 and other Acts harmonised ) prohibits discrimination based on gender among others enacted under the provisions of Directive 76/207/EEC of 9 February 1996 requiring member states to accord equal treatment to men and women in access to employment and others (Laboris, 2011).. Qn 2. How EU Law (as applied under Article 101 TFEU) identifies anti-competitive conduct between undertakings and assess the extent to which such conduct is considered illegal? Article 101 (1) TEFU prohibits cartels in the forms of anti-competitive agreements between entities and decisions and concerted conduct by undertakings or amongst groups of undertakings that can affect trade between Member States and prevent, distort or restrict competition within the internal market.. The Article 101 (1) lists the following as prohibited activities that counter the principle of internal market by the said entities. a) Fixation of purchase or selling prices or any others terms of trade directly or indirectly. b) Limiting or controlling of production, market functioning, technological development or investment (control of share markets or suppliers) c) Placing different conditions to other parties of identical transactions with a view to put them under a competitive disadvantage. e) Imposing conditions in contracts conditional on acceptance of third parties unconnected to main subject matter. (Koenig, Schreiber, & Dennis, 2011) Article 101 (2) makes any prohibited decisions or agreement by article 101 void. Article 101 (3) exempts activities under subsection 1 if they potentially enhance production or distribution of goods or promote technological and economic development with the passing of a share of benefits to the consumers. and if they avoid imposing conditions unnecessary for realisation of such objectives and give such entities leverage to curtail competition (Koenig, Schreiber, & Dennis, 2011). The cartels formed in the prohibited way as stated above have the potential to prevent discovery or invention of new or better products and production at lesser prices. The patterns of behaviour as above are prohibited as they can avert the competition from potential entrepreneurs which will ultimately weaken consumers’ bargaining power. Exemptions are aimed at achieving positive effects that will benefit the consumer or pave way for technical improvements or standardisation in the industry. The European Commission can impose a fine of 10 % of the last annual turnover of the undertakings who have infringed the Article 101 TEFU‘s provisions intentionally or negligently. Besides, such prohibited agreements will be held illegal thus getting exposed to undesirable consequences (Koenig, Schreiber, & Dennis, 2011). It is not that concerted practices alone are necessary to constitute infringement but the very presence of an undertaking in a meeting of likeminded undertakings can be taken as its participation. For example, case Sarrio SA (1998) involved cardboard manufacturers and suppliers meeting and sharing information and agreeing upon a uniform price, price increases, market share and implementing them in practice. Certain undertakings which did not carry out the implementation were considered to have infringed the article since their very participation in a meeting without publicly distancing themselves is enough to constitute violation of the said article. It is not necessary to actively participate in such meetings. Their passive participation itself is sufficient as held in Trefileeurope’s (1995) case. In Aalborg Portland (2004), it was laid down by the court that undertaking charged with infringement must prove with evidence that it participated in a meeting where anti-competitive agreement was concluded with active protests against such agreement and it should show evidence that its participation in the meeting was without any such anti-competitive intentions and must have explicitly told the meeting that its presence was with an intention different from their common intention. Originally, the only Horizontal agreements among like-minded competitors had been prohibited by article 101 (1). Subsequently, the court has held that even Vertical agreements by meeting of a producer with its distributors will fall under the article 101(1) as held in Delimitis/Henninger Brdu (1991). Gentlemen’s agreements though not legally binding under national law, are taken as valid agreements under European jurisprudence since such agreements reflect the concurrence of wills. But unilateral actions do not come under the article 101 (1) TEFU since there should be two or more parties to make an agreement. Thus in Bayer AG’s (2000) case, it was considered whether there an anti-competitive agreement existed between Bayer’s subsidiaries and their wholesalers or whether Bayer’s action had been unilateral. Price of certain drug (Adalat) was fixed by National Governments in several member states. Prices in U.K. was higher than in France and Spain which prompted wholesale purchasers to buy from low priced countries more than their requirements and sell the excess in the U.K. market because which U.K. subsidiary’s profit and sales fell down. Therefore, Bayer reduced quantity of supplies to the wholesalers in France and Spain in an effort to restrict parallel trade by them. This action of the Bayer was not an infringement of article 101 (1) as there was no agreement with anyone to that effect. At the same time, there was an attempt by GlaxoSmithKline to restrict parallel trade by way agreement with its wholesalers to sell at lower prices to Spanish hospitals and at higher prices to wholesalers of other member states. This was held to be an infringement of article 101 (1) as a dual pricing through agreements (GlaxoSmithKline, 2009). Conclusion Thus, EU law indentifies anti-competitive practices by parties through the above principles laid down in article 101 (1) and they are considered illegal even with passive participation of undertakings in the meeting of the likeminded parties. References Aalborg Portland A/S, C-204/00 (ECR 1 2004) in Koenig, C., Schreiber, K., & Dennis, S. (2011). European Competition Law in a Nutshell. Berlin: Lexxicon. Bayer AG , T-41/96 (ECR 11 2000).in Koenig, C., Schreiber, K., & Dennis, S. (2011). European Competition Law in a Nutshell. Berlin: Lexxicon. Christian, T.-F. (2010). The Cambridge Companion to European Union Private Law. Cambridge: Cambridge University Press. Defrenne v Sabena , 43/75 (E.C.R. 455 1976). Delimitis/Henninger Brdu , C-234/89 (ECR 1 1991). Eur-Lex. (2006, July 5). Directive 2006/54/EC 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). Retrieved Jan 6, 2013, from Access to European Union Law: http://eur-lex.europa.eu/smartapi/cgi/sga_doc?smartapi!celexplus!prod!DocNumber&lg=en&type_doc=Directive&an_doc=2006&nu_doc=54 GlaxoSmithKline, C 501/06, C-513/06 P, C-515/06 P and C-519/06 P (ECR 1 2009).in Koenig, C., Schreiber, K., & Dennis, S. (2011). European Competition Law in a Nutshell. Berlin: Lexxicon. Jenkins v Kingsgate (Clothing Productions) Ltd (No2), IRLR 388 (UKEAT June 19, 1981). Koenig, C., Schreiber, K., & Dennis, S. (2011). European Competition Law in a Nutshell. Berlin: Lexxicon. Laboris, L. (2011). Employment Discrimnation Law : A European Guide. Lus Laboris . Moens, G., & Trone, J. (2010). Commercial Law of the European Union. Murdoch Wetsren Australia : Springer . Routledge. (2011-2012). European Union Law. (8, Ed.) Routledge: Law Card Series. Sarrio SA, T-334/94 (ECR 11 -1439 1998) in Koenig, C., Schreiber, K., & Dennis, S. (2011). European Competition Law in a Nutshell. Berlin: Lexxicon. Specialalarbejderforbundet i Danmark v Dansk Industri, C-400/93 (ECR 1995). Tovey, G. (2010-2011). General Principles of EU Law. Lecture Note 2010-2011. Code: EU-03-v4-12.10 , Topic 3 (Lecture 3), 1-11. Trefileurope Sales, T-149/89 (ECR II 1995) in Koenig, C., Schreiber, K., & Dennis, S. (2011). European Competition Law in a Nutshell. Berlin: Lexxicon. Read More