Labor Law. The Basics

CONTENTS

CHAPTER ONE
FREEDOM OF MOVEMENT OF WORKERS IN EUROPEAN UNION
1. INTRODUCTION
2. FREEDOM OF MOVEMENT OF WORKERS
2. 1Direct effect of article 39 TEC
2.2 Rights of migrant workers
3. ASSOCIATION AGREEMENTS
3.1. Association Agreement with Turkey-background
3.2 The role of the European Court of Justice in interpreting the Agreement with Turkey
3.3 The right of family reunification of Turkish workers
4. TRANSITIONAL AGREEMENTS
4.1 Definition and scope
4.2 Previous experience
5 POSTING OF WORKERS REGULATION
5.1 EU posting of workers
5.2 Rulings of the European Court of Justice

CHAPTER TWO
2. EQUAL PAY RULES IN EU LAW
2.1 Introduction
2. 2 Indirect discrimination based on gender
2.3 Objective justification in cases of indirect discrimination
2.4 Positive actions in the EU legislation
2. 5 Harassment Definitions
2.6 EU Labour Law and Disability Policy
CHAPTER THREE pages 51-81
3. INTERNATIONAL LABOR ORGANIZATION
3.1 BACKGROUND
3.2 STRUCTURE
3.3 ACTIVITIES
Appendix: International Labor organization Constitution

CHAPTER FOUR
NATIONAL LABOR LAW
1. EMPLOYMENT CONTRACT
1.1 General conditions
1.2 Employment contract articles
1.3 Legal sanctions for the employer
1.4 Business secret
1.5 Concurrence clause
2. SPECIAL FORMS OF EMPLOYMENT CONTRACTS
2.1 Part-time employment contract,
2.2 Part-time employment contract with multiple employers,
2.3 Employment Contract for performing work at home,
2.4 Contract for employment of house assistants,
2.5 Contract for employment of business person-managerial contracts.
3. OBLIGATION OF THE WORKER
4. OBLIGATION OF THE EMPLOYER
5. INTERNSHIP, VOLUNTEER STAGE AND WORK ON PROBATION
5.1 Internship regulation
5.2 History of internship regulation
5.3 Employment contract with intern
6. ORGANIZATION OF WORKING TIME
7. MATERNITY LEAVE
8. WORKING AGE
9. WAGES
10. EMPLOYMENT OF FOREIGNERS
11. HARRESMENT ON THE WORKING PLACE
11.1 Legal regulation
11.2 Court procedures
12. SOLVING OF LABOR DISPUTES
13. TRADE UNIONS

LITERATURE

DEDICATION

This book I dedicate to my family for the support during my academic and research work. While writing the book members of my family were exercising the right to work as highly qualified third countries nationals in EU Member State. Their personal experience was very important for motivating me to analyze the legal requirements and different EU Member States regulations. Also, I had opportunity from close to see their struggle with integration and language difficulties.

CHAPTER ONE

FREEDOM OF MOVEMENT OF WORKERS IN EUROPEAN UNION

INTRODUCTION

The basic idea for creating the European Union is the Internal Market where free movement of people, capital, services and goods is established. The creation of the Internal Market is the central raison d'etre of the EU existence. The freedom of movement of people is one of the four freedoms of the Internal Market. The right to move is the basic right of the European citizens. The realization of this freedom was harder than practicing the free movement of capital, services and goods. Therefore, the European Union is still taking subsequent actions for realization of the freedom of movement of people. At the beginning, the freedom of movement of people was available just for the working population, but latter on the freedom of movement included all the categories of citizens, students, retired people and people who are not economically active.

Throughout the years European Union makes efforts to change the approach towards the third country nationals, especially the working population as one of the conditions for fulfillment of the Lisbon Strategy goals.

The European Union adopted important primary, secondary law and case law of the European Court of Justice such as the Association Agreements regulating the freedom of movement of third country workers. These Association Agreements with Third Countries provide articles for free movement of third country workers in the European Union and vice versa. For a long time, the Association Agreements are the basic law regulating the freedom of movement of third country workers. The European Court of Justice played important role in interpreting the articles for freedom of movement of workers and giving direct effect in the national laws of the Member States.

In the last two years European Union has adopted secondary law for improving the status of third country workers especially for highly qualified workers. The entrance of highly qualified workers in the Member States is important for realization of the economic growth and development, such as decreasing the unemployment rate.

II. FREE MOVEMENT OF WORKERS IN EU

2.1 Direct effect of article 39 TEC

Central legal questions concerning free movement of workers are:

- direct effect of article 39 from the Treaty establishing the European Community,
- the meaning of the term migrant worker,
- certain rights of the family members of the migrant worker,
- such as the reserved places in the public sector for national workers.

The Treaty on European Union establishes European citizenship thus giving certain rights and obligations to the European citizens and limited rights and obligations to non-EU citizens. The Treaty of Amsterdam moves important issues regulating the status of non-EU citizens from third to the first EU pillar thus becoming part of the acquis communautaire. The European Court of Justice played an important role in interpreting the meaning of article 39 on the free movement of workers. The Court constantly points to the meaning of the free movement of workers and realization of the principle on non­discrimination based on nationality. Article 12 of the TEU explicitly forbids any form of discrimination based on nationality when putting into practice the Treaty articles. The Council of Ministers has jurisdiction in compliance with article 251 to adopt acts forbidding discrimination based on nationality. The definition of the term worker was a major interest to the European Community. In the case Hoekstra ¹, the European Court of Justice has interpreted that the definition of the term worker is not a question of the national law of the Member State, but it is in the interest of all Member States to interpret this term uniformly. Interpreting this term uniformly means that it is crucial for establishing the Internal Market. The most important goal of the Internal Market could not be achieved if the term migrant worker is defined by the national law of each Member State. Two questions are most important in this judgment. First, the Court gives the term migrant worker communitarian meaning which means that the Court gives directions for its application in the Member States. The second important meaning of this judgment is that the Court interprets this term extensively because the realization of the free movement is one of the four freedoms and condition sine qua non for realization of the internal market.

Full text of article 39 TEC

1. Freedom of movement of workers shall be secured within the Community.
2. Such freedom of movement shall entail the abolition of any discrimination based on nationality between workers of the Member States as regard employment, remuneration and other conditions of work and employment.
3. It shall entail the right, subject to limitations justified on grounds of public policy, public security or public health:

- (a) to accept offers of employment actually made;
- (b) to move freely within the territory of Member States for this purpose;
- (c) to stay in a Member State for the purpose of employment in accordance with the provisions governing the employment of nationals of that state laid down by law, regulation or administrative action;
- (d) to remain in the territory of a Member State after having been employed in that State, subject to conditions which shall be embodied in implementing regulations to be drawn up by the Commission.

- 4. The provisions of this Article shall not apply to employment in the public service.

2.2 Rights of migrant workers

Article 39 of the EC Treaty entails important rights for migrant workers when moving from one to another Member State:

- the right to look for a job in another Member State;
- the right to work in another Member State;
- the right to reside there for that purpose;
- the right to remain there;
- the right to equal treatment in respect of access to employment, working; conditions and all other advantages which could help to facilitate the worker's integration in the host Member State.

III. ASSOCIATION AGREEMENTS

The status of non-EU workers was also an important issue for the European Union. Basically, this was regulated with bilateral agreements between the European Community on one hand and the country of origin of the worker on the other. The Agreements for Cooperation and Association are based on article 310 of TEC. According to Association Agreements, non-EU citizens have privileged status as workers or self-employed in the Member State of the European Union.

The European Community has signed the following Association Agreements:

- Association Agreement between the European Economic Community and Turkey, including the Additional Protocol
- Association agreement with Algeria, Morocco and Euro-Mediterranean Agreements with Tunisia such as with Egypt, Syria, Lebanon and Jordan
- Lomé Conventions
- Europe Agreements signed with Hungary, Poland, Slovakia, Czech, Romania, Bulgaria, Estonia, Latvia, Lithuania and Slovenia
- EEA Agreement
- Euro-Mediterranean Agreements with Morocco, Israel and Jordan regulating illegal migration (these agreements provide articles for readmission of domestic citizens who reside illegal in the country party of the agreement)
- Agreement for Cooperation signed between European Community and Switzerland

3.1. Association Agreement with Turkey-background

The country first applied for associate membership in the European Economic Community in 1959, and on 12 September 1963 signed the "Agreement Creating An Association Between The Republic of Turkey and the European Economic Community", also known as the Ankara Agreement. This agreement came into effect the following year on 12 December 1964. The Ankara Agreement sought to integrate Turkey into a customs union with the EEC whilst acknowledging the final goal of membership. In November 1970, a further protocol called the "Additional Protocol" established a timetable for the abolition of tariffs and quotas on goods traded between Turkey and the EEC.

On 14 April 1987, Turkey submitted its application for formal membership into the European Economic Community. The European Commission responded in December 1989 by confirming Ankara's eventual membership but also by deferring the matter to more favorable times, citing Turkey's economic and political situation, as well its poor relations with Greece and the conflict with Cyprus as creating an unfavorable environment with which to begin negotiations. This position was confirmed again in the Luxembourg European Council of 1997 in which accession talks were started with central and eastern European states and Cyprus, but not Turkey. During the 1990s, Turkey proceeded with a closer integration with the European Union by agreeing to a customs union in 1995. Moreover, the Helsinki European Council of 1999 proved a milestone as the EU recognized Turkey as a candidate on equal footing with other potential candidates.²

3.2 The role of the European Court of Justice in interpreting the Association Agreement with Turkey

The European Court of Justice played important role in interpreting the Association Agreements, articles and decisions adopted by Association Council. Member States were unanimous on the Court's ruling that the Association Agreements are becoming part of the legal order of the Community after entering into force. The Court, in compliance with article 177 of the Treaty has jurisdiction to interpret the Association Agreements regarding the uniform application of the acquis communitaire in the Member States. The Court has jurisdiction on preliminary ruling for applying the agreements.³ In the case Demirel⁴, European Court of Justice, ruled that:

“...in compliance with article 238, the Community must fulfill the obligation upon non­member states in all areas covered by the Treaty. Because the freedom of movement of workers is regulated with article 48 of the Treaty establishing the European Community, the obligation for free movement of workers are under the competence of the Community.”

Therefore, the Court ruled:

“.its jurisdiction must not be questioned because of the fact that in the area of free movement of workers, Member States create all the rules that are necessary to give effect on the Association Agreements on the territory of the Member States or decisions adopted by Association Council.”

The Turkish court in the procedure of preliminary ruling raised two questions to European Court of Justice: The first question being on the direct effect of Article 12 of Association Agreement between Turkey and European Community and article 36 of Additional Protocol in national law of Member States. The second question referred to the right of family reunification of Turkish workers covered by the Association Agreement. The European Court of Justice ruled that article 12 of Association Agreement with Turkey and article 36 of Additional Protocol interpreted in light of article 7 of the Treaty, are not directly applicable in the legal order of the Member States. In reference to the second question regarding the right to family reunification, the Court ruled that free movement of workers means that the spouse and children of Turkish workers may accompany the worker in the Member States where he/she resides and works. This ruling of the Court was based on Decision 1/80 adopted by Association Council created with Association Agreement. This Decision provides that Turkish workers duly registered on the labor market of the Member State have equal treatment in respect to access to employment.

In the case Greece v. Commission⁵, the Court ruled that Decision 2/80 adopted by Association Council is part of the legal order of the Community. Therefore, the Court examined the relation between Association Agreement and the Association Council's decisions. In the case Taflan-Met,6 the major issue was the application of the scheme for social insurance of the Turkish workers and members of their families in the EU Member States. Danish court ruled that the applicant may qualify for benefits according the Decision 3/80 of the Association Council based on Association Agreement between Turkey and European Community. It was not precise for the Court whether the Decision 3/80 has entered into force because there was no specific date mentioned. The European Court of Justice ruled that Decision 3/80 entered into force on the day of its adoption, thus is obligatory for the both signatory parties. In regard to the second question, the Danish court in the procedure for preliminary ruling asked for interpretation of direct effect of article 12 and article 13 of Decision 3/80 of the Association Council in the national Danish law. The Court ruled that the articles of the Decision 3/80 are not precise and therefore it is necessary that the national institutions adopt subsequent measures for implementation of the Decision 3/80.7 Articles 12 and article 13 of Decision 3/80 do not comply with the conditions for direct effect stipulated in case Van Gend and Loos.8 This was the first case on direct effect of the Community law and one of the most important judgments of the Court. In this case Court ruled the conditions for direct effect applicability of article regarding a) the article must be clear and unambiguous b) it must be unconditional c) its application must not be conditional of subsequent action by Community or national laws. The European Court of Justice ruled that Association Agreements and the connected instruments of the Association Council are an integral part of Community law. Following the jurisprudence of the Court of Justice, citizens of Member States parties may invoke articles of the Association Agreements and the decisions of the Association Council adopted in compliance with the goal and aim of the Treaty, if the article is clear and precise and is application is not questioned by adoption of subsequent measures of the parties.

The most important articles in the Association Agreement between Turkey and European Community are:

- Article 12 of the Association Agreement which obligates the both parties in application of the articles 39, 40, 41 of TEC for free movement of workers;
- Article 36 of the Additional Protocol which provides for progressive application of the free movement between the 12 and 22 years after entering into force of the Association Agreement

The European Court of Justice ruled that several articles of the decisions adopted by Association Council have direct effect:

- article 2 (1) (b) and article 7 of Decision 2/76;
- article 6 (1), 7 and 13 of Decision 1/80;
- article 3 (1) of Decision 3/80;
- article 12 of Decision 2/76

Court ruled that several articles don't have direct effect in the national law of Member States:

- article 29 of the Decision 1/80;
- article 12 and 13 of Decision 3/80

The European Court of Justice ruled that article 6 of Decision 1/80 allows progressive implementation of Turkish workers on the labor market in the Member State. Article 6 of Decision 1/80 provides important rights for worker who is duly registered on the labor market in the Member State :

- after one year of legal employment, a right to renew the work permit for the same employer, if the current job is available;
- after 3 years of legal employment, a right to freely accept other job vacancy, if the vacancy is made under regular circumstances and published in employment services in the Member State;
- a right of free access in the employment to any genuine employment in the member state after 4 years of legal employment.

The progressive implementation of the articles regarding the Turkish workers is based on the duration of the employment in the Member State. Certain rights that Turkish workers can enjoy in the Member States are in correlation with their duration of legal residence. The Court ruled that it is necessary that articles regulating free movement of workers are applied on Turkish workers in compliance with Decision 1/80. In the case Tetik⁶ the Court interpreted the right of Turkish workers to renew its legal residence in the Member States where the worker was legally employed for period longer than 4 years. In this case, the worker bona fide annulled the employment contract because he searched for a new job in the Member State of the Union. Mr. Tetik was legally employed as sailor from September 1980 till 1988 when he annulled the contract. His request for renewing the residence permit was denied and the procedure continued after appealing. The national court was not certain whether if the request for renewing the residence permit is in compliance with Decision 1/80 and therefore asked for ruling. In this case, the Court of Justice, interpreted that based on Association Agreement with Turkey, both parties agreed to apply articles 39, 40 and 41 of TEC for progressive implementation of the free movement of workers. Decision 1/80 does not mean complete free movement. Article 6 of the Decision 1/80 gives the right to Turkish workers duly registered on the labor market in the Member State to apply for any genuine employment after four years of legal employment. Article 6 has direct effect in the Member States and the Turkish workers have a right to invoke the article in front of national courts for protection of their rights. After 8 years of residence in the Member States, the Court ruled that workers have a right to respond to any job vacancy and unconditional right to search and accept employment offers regardless of nationality.

This ruling of the Court was based on judgment in the case Antonissen.⁷ The Court in this case ruled that nationals from the Member States have the right to reside in Member States for engaging in employment such as reasonable period of time for accepting the job offer. For complete application of article 6 of Decision 1/80, the Turkish worker has a right after 4 years of legal employment in the Member State to resign from the current employment and search for a new employment for a reasonable period of time in the same Member State. In that period the worker enjoys the right of residence in that Member State for that purpose. The national courts have a discretionary right to determine the reasonable period of time and the Court of Justice ruled that this period should be long enough to respond to the essential meaning of the law. In the case Birden⁸, the Court of Justice interpreted the term duly registered as belonging to the labor force. Every worker who is in labor relation in genuine and effective economic activity is covered under the term duly registered as belonging to the labor force. The Court ruled that national courts, case by case, determine if the criteria are fulfilled for registration of the worker on the labor market. The Member State is not competent to supplement additional criteria contrary to the concept of worker. The European Court of Justice through the case law uses the concept of freedom of movement of workers as directions for further development of immigration policy rather than the hard law.

The Court in general ignored that article 39 of the Treaty establishing the European Community entails four different rights:

1. The right to accept the j ob offers;
2. The right to freedom of movement in the Member States for that goal;
3. The right to reside on the territory in the Member States for reason of employment;
4. The right to stay on the territory of the Member States after employment in that Member States.

3.3 The right of family reunification of Turkish workers

It was not clear if the worker enjoys the right of family reunification with the family members in the Member State of residence. The Court ruled that this is one of the basic rights of third country workers based on the decisions of the Association Council and Family Reunification Directive.⁹ Family member of the Turkish workers who are duly registered on the labor market have the right to:

- respond to any offer after legal residence of minimum 3 years in the Member States;
- to enjoy free access to any genuine employment if they are legally employed for at least 5 years.

These following rights can be enjoyed by family members if they accompany the Turkish worker who has legal residence in Member State in accordance with article 7 of Decision 1/80. Family members of Turkish workers may be qualified as workers regardless to the family relations if they have access to the labor market.

IV. TRANSITIONAL ARRANGMENTS

4.1 Definition and scope

The free movement of workers is a particularly sensitive issue for the EU, which usually imposes certain limitations on the free movement of workers from the new Member States. One of these limitations is expressed in the form of a transitional period and signing the so called transitional arrangements with the old Member States. In the history of EU enlargements, there has commonly been a transitional period for the free movement of workers as the condition for the new Member States. Positive outcomes are expressed in the Standstill Clause and Community Preference Rule. The Standstill Clause requires that the access to the labour markets of old member states cannot be more restrictive for workers who are nationals of the NMS than it was at the time of the signature of the Accession Treaty (16 April 2003). The Community Preference Rule means that the employers from old member states are obliged to give priority to workers from NMS over non-EU nationals.¹⁰

Restrictions on the free movement of workers may apply to workers from EU member countries for a transitional period of up to 7 years after they join the EU. For the moment this concerns workers from Croatia because Croatia entered the Union in 2013 and this year 2020 the market will be fully liberalized.

Individual governments of the countries that were already part of the EU can decide themselves whether they want to apply restrictions to workers from these countries, and what kind of restrictions. However:

- They are not allowed to restrict the general freedom to travel, only the right to work in another country as an employed person.
- For the first two years after a country joined the EU, national law and policy of the countries that were already part of the EU determines access to the labour market of workers from that country so that they may need a work permit. If a country wants to continue to apply these restrictions for three more years, it must inform the Commission before the end of the first two years.
- After that, countries can continue to apply restrictions for another two years if they inform the Commission of serious disturbances in their labour market; all restrictions must end after 7 years.
- Workers who are subject to national restrictions must be given priority over workers from non-EU countries.
- Once they are legally employed in another EU country, workers are entitled to equal treatment with national workers of the country where they are working.
- The countries whose nationals face such restrictions may impose equivalent restrictions on workers from that country.

4.2 Previous experience

During the EU enlargement on 1 May 2004, 12 out of 15 old Member States entail transitional arrangements for application of free movement of workers articles for new Member States. Part of the new Member States took reciprocal measures for the european citizens from the old Member States aiming to protect national labor market. Transitional arrangements signed between the old and the new Member States are part of the Accession treaty with the Czech Republic, Poland, Latvia, Slovakia, Estonia, Lithuania, Slovenia and Hungary.¹¹ These arrangements are complex but similar to the arrangements concluded when Spain and Portugal joined the Union. This transitional measures are only for workers from new Member States who are not already employed in a Member State. The workers already employed in a member state enjoy free access to the labor market if they have legal residence in the member state for at least 12 months. The transitional arrangements are dedicated to any worker who signs employment contract with employer on the territory of the Member State. Member States must not enforce more restrictive measures then the already introduced with Accession treaty signed in 16 May 2003 (standstill clause). The difference for the workers from the new Member States after EU accession is the right to recognize already acquired qualifications and coordination of social insurance regardless of the Member State. The workers from new Member States must obtain work permit issued from the National Agency for Employment. The workers from the new Member States have priority from the third country workers applying for the job. The negotiation process with new Member States regarding Chapter for free movement of workers with new Member States last from one year with Bulgaria, Latvia, Lithuania, Malta, Romania and Slovakia and two years with the other countries. Transitional arrangements were concluded with Greece in 1981 such as with Spain and Portugal 1986. According to statistics only 102 000 citizens from Greece left the country after EU membership during the transitional period for free movement of workers until 1987. In average 7700 Portuguese citizens migrate to other member states during the year while Spanish migration was lower during the transitional period.¹² Therefore, Germany and Austria asked for transitional arrangements for seven years with new Member States until opening the regional funds for these states. Spain feared that by opening of the regional funds for these states the complete program for undeveloped regions would not be fully realized. Thus Spain, Greece and Portugal agreed on transitional arrangements expecting that membership of new Member States would not decrease the financial support from the Union. Germany and Austria during the transitional period remain the system of work permit issue, while Spain, Portugal and Greece introduced system of quotas for workers of new Member States. Only Great Britain, Ireland or Sweden completely opened the national labor law. Great Britain and Ireland were the EU countries with biggest number after the EU enlargements with twelve new member states. The increased mobility on the labor market in EU 27 meant increasing of the GDP for 0.11% on short-term and 0.2% on long-term basis for the period 2004-2007. Until 2020 it is expected double benefits from the future migration in EU. The realization of the freedom of movement of workers means gaining more benefits rather than prolonging of the transitional arrangements of the freedom of movement of workers for new Member States.¹³ Summa summarum, the new Member States managed fast and successful to transform national communistic systems and to respond to the challenges facing the EU membership. Almost all of the new Member States, especially Malta and Cyprus improved the working and living conditions and opened the society for foreign investors. Still, workers are facing problems such as low payments, increased unemployment rate while the employers had to solve the challenges coming up from the new forms of working relation such as part time, self-employment, temporary work.¹⁴

Croatia has, by signing the Stabilization and Association Agreement, acquired rights and obligations after gaining full membership in the European Union. The rights regarding the Freedom of Movement for Workers established through the Stabilization and Association Agreement (Stabilization and Association Agreement between the Republic of Croatia and the European Communities and their Member States) entail:

- the right to work without the work permit (after the transition period finished if it is determined)
- equal treatment in seeking employment in the territory of another Member State with the same priority as nationals of that State
- the right to the same social advantages as national workers of the host Member State
- the right of family members to join the worker and receive family benefits
- complete coordination between social security system (pensions and contributions)
- mutual recognition of qualifications.

After the full accession of Croatia into the European Union, the European Commission adopted measures stating that for two year period the national measures will apply by the Member States and after this period review will be make. The maximum period will be seven years for opening the labor market so this means 2020 although the standstill clause can apply. The Austria, Malta, the Netherlands, Slovenia and the United Kingdom are using the right to national measures of limited freedom of movement for Croatian workers. The competent institutions, Croatian Employment Services, Croatian Pension Insurance Institute and Croatian Health Insurance Fund are carrying the task regarding the Freedom of movement Chapter.

V. POSTING OF WORKERS

5.1 EU posting of workers

European Union besides the freedom of movement legislation adopted special directives to regulate the posting of workers. The Directive 96/71/EC of the European Parliament and of the Council of 16 December 1996 concerning the posting of workers in the framework of the provision of services was first adopted in 1996. To guarantee that the rights and working conditions of a posted worker are protected throughout the European Union, and to avoid "social dumping" where foreign service providers can undercut local service providers because their labor standards are lower, the European Community law has established a core of mandatory rules regarding the terms and conditions of employment to be applied to an employee posted to work in another Member State. These rules will reflect the standards of local workers in the host Member State. The idea is that where a Member State has certain minimum terms and conditions of employment, these must also apply to workers posted to that State.¹⁵

The Directive has pointed to the need for clarification of the relationship between the industrial relations domain especially collective bargaining and the legislative framework, as a prerequisite for establishing clear obligations on the part of companies posting workers abroad within the European Union. Moreover, as the Posting of Workers Directive is concerned with applying minimum protections to posted workers, a key debate has developed around the definition and limits of such core protections and particularly the question of whether they encompass the entire set of the national labor protection regime.¹⁶

Article 2 of the Directive for posting the workers gives a definition of the posted workers. Posted worker means worker who for a limited period, carries out his work in the territory of a Member State other than the State in which in normally works. Regarding this definition the major difference with the freedom of movement of workers regulation is the period of time that the worker is sent in the Member State. In the case of the freedom of movement of workers, the worker moves freely in order to find a job and reside in the Member State in indefinite period of time. In the case of posted worker, the worker is posted in other Member State by the employee for a period of time. The position of the posted workers in the labor market is much more particular as they find themselves between the regulatory framework of the host country and that of the country they habitually work in. The migrant workers status is regulate by the legislation of the Member State in the country where the employment contract is signed.¹⁷

Article 3 of the Posted Directive regulates the term and conditions of posting the worker. Member States shall ensure that, whatever the law applicable to the employment relationship, the undertakings guarantee workers posted to their territory the terms and conditions of employment covering the following matters which, in the Member State where the work is carried out, are laid down:

- by law, regulation or administrative provision, and/or
- by collective agreements or arbitration awards which have been declared universally applicable within the meaning of paragraph 8, insofar as they concern the activities referred to in the Annex. The posted worker enjoys the right to:

a) maximum work periods and minimum rest periods;
(b) minimum paid annual holidays;
(c) the minimum rates of pay, including overtime rates; this point does not apply to supplementary occupational retirement pension schemes;
(d) the conditions of hiring-out of workers, in particular the supply of workers by temporary employment undertakings;
(e) health, safety and hygiene at work;
(f) protective measures with regard to the terms and conditions of employment of pregnant women or women who have recently given birth, of children and of young people;
(g) equality of treatment between men and women and other provisions on non­discrimination.

However, these limited set of rights must also been read within the context of article 56 of the Treaty on the functioning the European Union ex article 49 of the Treaty establishing the European Community such as the right to freedom of association under the article 11 of the European Convention on Human Rights and the European Union Equality Directives. In this context there is the abovementioned mechanism of justified restrictions for the protection of essential requirements in the general interest, that the Court of Justice of the European Union has developed on the basis of the Treaty. Where the Directive does not apply, this mechanism remains decisive. All Member States except the Czech Republic, have legislation which specifically states that workers posted to their territory are guaranteed the terms and conditions listed in the Directive. In this sense there is failure to provide the guarantees although this does not appear to have any consequences in terms of the application of the Directive.

5.2 Rulings of the European Court of Justice

European Court of Justice rulings at the centre of the debate on the posting of workers are Case Laval un Partneri Ltd v Svenska Byggnadsarbetareförbundet and Others, Rüffert v Land Niedersachenand Commission v. Luxembourg. These rulings aimed to delimit the rules applicable to posted workers. The Laval decision along with its sister case, the Viking case which concerns the right of establishment as opposed to the freedom to provide services states that a foreign undertaking should not be forced to adhere to a collective agreement for instance, by way of strikes, as long as it abides by the minimum requirements set out in the relevant national legislation on posted workers. This is notably the case if the collective agreement includes more favorable conditions than those resulting from the relevant legislative provisions and comprises terms related to matters not referred to in Article 3 of the Posted Directive. The European Court of Justice chose to give two decisions, whose effect appears to suggest that employers are only required to pay their workers the rate they would receive in their home country, provided this matches minimum wages and working conditions in the country they are posted to. The Directive regulates the minimum for posting the workers period. Regarding article 6 the length of the posting shall be calculated on the basis of a reference period of one year from the beginning of the posting. For the purpose of such calculations, account shall be taken of any previous periods for which the post has been filled by a posted worker.

The Posted Directive regulates the cooperation between Member States due to the implementation of the Directive. For the purposes of implementing this Directive, Member States shall, in accordance with national legislation and/or practice, designate one or more liaison offices or one or more competent national bodies. Member States shall make provision for cooperation between the public authorities which, in accordance with national legislation, are responsible for monitoring the terms and conditions of employment cited above. Such cooperation shall in particular consist in replying to reasoned requests from those authorities for information on the transnational hiring-out of workers, including manifest abuses or possible cases of unlawful transnational activities. Mutual administrative assistance shall be provided free of charge. Each Member State shall take the appropriate measures to make the information on the terms and conditions of employment generally available. Each Member State shall notify the other Member States and the Commission of the liaison offices and/or competent bodies. In the report regarding the implementation of the article 4 of the Directive it is notified that all the Member States have designated a liaison office of competent national body. Most Member States have a formal requirement for the implementation of the measures of the Directive.

The Posted Directive aims to clarify competing claims of competence in the case of staff being sent abroad by their employer for a project (posting), between the rules governing labor relations in the country of origin of the employing service provider and the country where the work is actually carried out (but where the staff is not normally based). If the laws of the country where the work is actually being carried out applied even for short stays, a company wishing to offer its services in the whole of the EU would have to be aware of 27 different sets of rules. To counter this phenomenon, the Court of Justice of the European Union has developed a balancing mechanism on the basis of the Treaty that determines which country's rules apply in a given situation. However, this case by case approach generates legal uncertainty which is tackled by this Directive. In order to protect workers from one EU country who are sent by their employer to carry out work in another temporarily, the Directive provides that a hard core of rules of the host country (country of destination) needs to be observed.

The Directive applies where, a company agrees to provide a service to a client in another Member State and needs to send staff there in order to carry out this work a worker is posted to another country through arrangements within a group of companies, with the parent and subsidiaries based in different Member States a worker is posted through an agreement between an employer and an employment agency. The employment relationship between the employer and the posted worker must be maintained during the period of posting. The core of mandatory rules on posting covers a wide range of issues such as maximum work periods and minimum rest periods, minimum paid annual leave, minimum rates of pay, equal treatment between men and women and the conditions of hiring out workers, in particular the supply of workers by temporary employment undertakings. The legislation also tackles issues such as health and safety at work and includes protective measures in the terms and conditions of employment of pregnant women, of children and of young people. By guaranteeing fair competition and respect for the rights of posted works, the EC legislation provides a clear framework so that businesses and workers can take full advantage of the opportunities offered by the Internal Market. Furthermore, the Posting of Workers Directive lays down the obligation for Member States to cooperate among themselves and to grant public access to information on national employment conditions.

The most problematic aspects, which have emerged in recent years, concern:

- the relationship between legislation and collective bargaining in defining the employment conditions of posted workers;
- the universal applicability of collective agreements and the selection of the collective agreement to be applied, if more than one bargaining level exists (for instance, national, local, and sectoral agreements);
- the scope of the applicable rules and their identification (whether providing all protections or minimum protections, and specifying what those minimum protections are).

In 2012 the European Commission send proposal for Directive concerning the enforcement of the provision applicable to the posting of workers in the framework of the provision of services. The Commission also reported on the implementation of the Directive 96.71/EC of the European Parliament and of the Council of 16 December 1996 concerning the posting of workers in the framework of the provision of services. The general picture is that the Directive has had very little practical effect in the Member States. There has been little litigation elsewhere and the Directive provisions do not seem to be a subject of much debate in the Member States.

Basic literature:

Alan C. European Labor Law and Social Policy: Cases and Materials, Kluwer Law International, The Hague, London, New York, 2002

Barnard C. EC Employment Law, Oxford, Oxford University Press, 2006

Barnard C. The Substantive Law of the EU: The Four Freedoms, 2Rev Ed., Oxford University Press; 2007

Blainpain R. European Labor Law, Kluwer Law International, 2003

Broberg M. Holst Christensen N. Free Movement in the European Union: Cases, Commentaries and Questions, Djoef Publishing, 2007

Craig P., Craig de Burca, EU Law, Cases and Materials, Oxford, Oxford University Press, 2003

Ellis E. EU Anti Discrimination Law, Oxford, Oxford University Press, 2005

Gibson D. H Immigration Policy and the Labor Market: The German Experience and Lessons for Europe (Immigration Policy and the Labor Market), Palgrave Macmilan, 2001

Hairbronner K, Immigration and Asylum Law and Policy of the European union, Springer, 2000

Hartly C. T. The Foundation of European Community Law, Oxford, Oxford University Press, 2003

Hailbronner K., Higgins I. Migration and Asylum Law and Policy in the European Union, FIDE 2004 National Reports, Cambridge University Press, 2004

Review Republic of Macedonia on the road to NATO and EU-actuality and perspectives , FON University, Skopje, 2007

Steve Peers, EU Immigration and Asylum Law, Text and Community, Martinius Nijhoff, 2006

Papademetrou D. Europe and Its immigrants in the 21 century. A new Deal of Continuing Dialog of the Deaf, Migration Policy Institute, 2006

Peers S., EU Justice and Home Affairs Law, Oxford University Press, USA, 2 edition, 2008

Shaw J. Social law and policy in an evolving European Union, Oxford, Hart Publishing, 2000

Weiss F. Wooldridge, Free Movement of Persons Within the European Community (European Monographs), Kluwer Law International 2007

White R. Workers, Establishment, and Services in the European Union (Oxford European Community Law Library, Oxford University Press, USA, 2005

Zimmermann K., Bonin H., Fahr R. Hinte H., Immigration Policy and the Labor Market: The German Experience and Lessons for Europe (Immigration Policy and the Labor Market) Springer, 2007

Acts and cases:

1. Visa liberalization with the former Yugoslav Republic of Macedonia, Roadmap
2. Commission on the European Communities, The Former Yugoslav Republic of Macedonia 2009 Progress Report, Brussels, 14.10.2009, SEC (2009) 1335
3. Treaty concerning the accession of the Republic of Bulgaria and Romania to the EU, Act of Accession, Annex VI, Chapter 1 for Bulgaria and Romania, signed in Luxembourg on 25 April 2005. Treaty of Accession of the Czech Republic, Estonia, Cyprus, Malta, Poland, Slovenia and Slovakia, Act of Accession, Part Four, Temporary Provisions, Title 1: Transitional Measures, signed in Athens on 16 April 2003
4. EU Enlargement-Bulgaria and Romania, migration implications for the UK, an ippr FactFile
5. European Integration Consortium, Labor mobility within the EU in the context of enlargement and the functioning of the transitional arrangement, p.4
6. Daniel Vaughan Whitehead, Francois Eyraud, The Evolving World of Work in the Enlarged EU: Progress and Vulnerability, International Labor office, 2007
7. Case Hoekstra v Bestuur der Bedrijfsverening voor detailhandel en Amachten 6 ECR 177
8. Case 12/86 Meryem Demirel v Stadt Schwabisch Gmund (1987), ECR 3719, ucTO Taxa bo cnyuajoT Haegeman v Belgium, Case 181/73 (1974), ECR 449.
9. Important Judgments Delivered by the Court of Justice of the European Communities in the Period1 May to 1 October 1996, Imelda Higgins and Jesper Svenningsen , EIPA Antenna Luxembourg
10. Case 30/88, Greece v. Commission, 1989, ECR 3711 para 13
11. Case 181/73, Haegeman v Belgium 1974 ECR 449 paras 5, 6

THE EQUAL PAY RULES IN EUROPEAN UNION

2.1 Introduction

The realization of the equal pay for equal work is the first legal article regulating the gender equality in the European Union. In the beginning of the implementation of the article it was not clear what was covered by the article regarding the equal work or work of equal value. When the Amsterdam Treaty was adopted the article 119 was amended so the work of equal value was also covered by the Treaty.

The principle of equal pay guarantees that the payment for the work performed is not discriminatory based on gender. The EU Member States were obligated to implement the equal pay rules regarding the payment for equal work or work of equal value. The implementation of the equal pay rules is obligatory for the public institutions but also applies to the contracts signed between private parties in the Member States. Each Member State shall during the first stage ensure and subsequently maintain the application of the principle that men and women should receive equal pay for equal work. The payment under article 119 covers regular wages or salary or other basic or minimum wage or salary and any other consideration, whether in cash or kind which the worker receives directly or indirectly, on the basis of employment from his employer.

The article 119 of the Treaty has double aim. First, the aim of article 119 is to avoid a situation in which undertakings established in states which have actually implemented the principle of equal pay suffer a competitive disadvantage in intra­community competition compared with undertakings which have not yet eliminated discrimination against women workers. Second, this provision is a part of the social objectives of the European Community, which is not only seen as economic union, but at the same time intends to ensure social progress and improvement of the living and working condition as emphasized in the Preamble of the Treaty.¹⁸

The ILO Convention No. 100 adopted by International labor organization defines the term payment in a similar way as others international related documents. The Directive 75/117/EEC was adopted to harmonize the equal payment rules in the Member States as a condition to improve the working and living conditions and to achieve social justice and economic benefit.¹⁹ The main task of this Directive is to eliminate gender discrimination regarding equal work or work of equal value and to create a system of non-discriminatory workplaces. Even more the Member States have to undertake effective measures to eliminate provisions in collective agreements, agreements on wage in individual contracts of workers which are contrary to the principle of equal pay. The Directive gave a year period for the Member States to harmonize the internal law with the Directive and to report the European Commission.²⁰ Furthermore, the Member States should provide legal remedies for implementing the principle of equal pay such as to provide aware raising instruments.

European Court of Justice has decided in important cases regarding the implementation of the equal pay principle. The Court judgments have supranational character and are obligatory throughout the Union for its institutions such as for the Member States, legal and private persons.²¹ Approximately half of the discrimination cases are related on implementing the principle of equal pay for equal work or work of equal value. The Court argued that the freedom of movement of people is one of the four freedoms of the Internal Market and should eliminate the differences in the labor conditions between Member States. The Court interpreted that article 119 has social but also economic aim in the case Defrenne v. Sabenne.²²

Mrs. Defrenne worked in the Belgian airline as flight attendant. She began a procedure before the Belgian courts seeking compensation for discrimination under article 119. The National Court in this case questioned the direct effect of the Article 119. The Court interpreted that article 119 has economic goals. The Member States have different social system schemes so the goal of the article 119 is to implement the equal pay rules in the enterprises and to eliminate the gender discrimination. Secondly, this article has also social goals, aiming to improve the living and working conditions of all citizens in the Union.

This double aim of the principle equal pay, the economic and social goals confirms that the equal pay articles are the basic of the EU law.²³ The principle equal pay is core standard in the gender equality policy in the European Union. It is among the first conditions that the applicant country for membership should fulfill in the process of the harmonization of the internal law with the EU law. Thus, important changes were made in the internal laws of the Member States such as in the candidate countries for membership especially when the negotiation process starts.²⁴

When the question of the direct effect of the article 119 aroused, Great Britain and Ireland interpreted that the article 119 does not fulfill the direct effect requirements.²⁵ The arguments on this side were in the line with the fact that the equal pay is principle so additional measures are necessary for its implementation. So the article does not fulfill the requirements for direct effect such as to be clear, unconditional and not dependable on implementation on additional measures.²⁶

The Court interpreted that the article has direct effect in the national laws and establishes individual rights that national courts must put in practice. Discrimination is forbidden not only for the public parties, but also applies to all agreements signed to regulate work payment, such as the agreements signed between individuals. Thus, article 119 has vertical and horizontal direct effect in the national laws of the Member States.²⁷

The fact that the article regulates the equal payment as principle does not mean that reduces the importance of the provision, but rather indicates its fundamental value for the Member States such as for the rights of individuals. The Court interpreted that in order to realize the principle of legal certainty direct effect is used only in already processed cases.

The European Court of Justice also interpreted if the principle of equal pay applies to situations in which men and women perform the same work temporarily. Mrs. Smith proceed lawsuit for gender discrimination in payment regarding receiving10 pounds less than male worker who worked the same job four months ago. National Court interpreted that national law on equal pay only restricts the principle of equal pay for in definite employment. The European Court of Justice ruled that the article 119 means that equal payment of men and women is applied for performing the same work so the requirement of temporality is not crucial factor. The principle of equal pay for equal work is not limited to situations where men and women perform the same work for a period of time for the same employee.²⁸

In the case Schroeder the European Court of Justice interpreted that the principle of equality between men and women and the nondiscrimination principle is the basic fundamental right for its citizens. The realization of the economic goals is equal to the realization of the social justice and the principle of nondiscrimination is a basic human right.

During the eighties the European Commission proceeds against Great Britain for not implementing the requirement for classification of the work places in compliance with the EU equal pay rules.²⁹ The European Court of Justice ruled that if the principle of equal payment is not implemented in the national law, the workers must have right to appeal to the competent bodies.³⁰

In the case Brunhofer v. Osterrei chi scher Bank Postparkasse and Angesteltenbetriebsrat der Wiener Gebietskrankenkasse³¹ the Court ruled that the professional qualifications and the work performed must not be used by the employers to justify that workers are not performing the equal work or work of equal value. The Court interpreted that professional capacities and the workers qualities are important for payment of additional compensations. The Court interpreted that in particular situations the professional training can be used as valid criteria in determining if the workers perform same work. This judgment was criticized because according to the Court ruling the personal qualifications and the training is used as objective justification for receiving bigger salary no meter the fact that the work is performed by the workers who have lower qualifications.³²

The principle of transparency in work payment and the problems during the procedures in cases of gender discrimination can be seen in the case of Danfoss.³³ The employer Danfoss paid equal payment to workers grouped by the salary payment, such as additional compensation based on mobility, training and experience.

The procedure was initiated by two female workers employed in the groups receiving different salary than male workers in the same groups. Industrial Arbitration Court used the preliminary rulings procedure before the European Court of Justice to ask for opinion in the concrete case. The ECJ ruled that the employer was not transparent regarding the payment system on additional compensations. The employer in the case didn't make clear enough why the woman workers are paid less compared with the male workers. The questions forward before the European Court of Justice were regarding the compliance of the Directive for equal payment 75/117/EEC with the national laws. The Court based its ruling on the Case Commission v. France³⁴ thus interpreting that the system of hiring workers which is not transparent is opposite of the principle of equal approach in the employment.

Finally, article 6 of the Directive 75/117/EEC obligates the Member States to take additional measures for implementing the principle of equal payment in accordance with the national law systems . Effective measures for the burden of proof in discriminatory cases should be provided into the national laws of the Member States. After this judgment was adopted, the burden of proof of discrimination in the particular cases was on the side of the employer. This judgment is important because it was delivered before the Directive on the burden of proof was adopted. When the Directive on the burden of proof was adopted in cases of gender discrimination³⁵ all Member States had to provide in national law changes in the burden of proof on the side of the employer. The applicant­worker is obligate only to submit facts that direct or indirect discrimination occurs in the case. This Directive provides for extensive definition on the indirect discrimination and measures that prove that the principle of equal payment of men and women is implemented.

2.2 Indirect discrimination based on gender

The Community law forbids direct or indirect discrimination based on gender. Important definitions are given in the article 2 of the Directive 2002/73/EC:

- direct discrimination: where one person is treated less favorably on grounds of sex than another is, has been or would be treated in a comparable situation,
- indirect discrimination: where an apparently neutral provision, criterion or practice would put persons of one sex at a particular disadvantage compared with persons of the other sex, unless that provision, criterion or practice is objectively justified by a legitimate aim, and the means of achieving that aim are appropriate and necessary
- harassment: where an unwanted conduct related to the sex of a person occurs with the purpose or effect of violating the dignity of a person, and of creating intimidating, hostile, degrading, humiliating or offensive environment,
- sexual harassment: where any form of unwanted verbal, non-verbal or physical conduct of a sexual nature occurs, with the purpose or effect of violating the dignity of a person, in particular when creating an intimidating, hostile, degrading, humiliating or offensive.

Similar definition for indirect discrimination can be found in the Directive on the burden of proof³⁶: For the purposes of this Directive, the principle of equal treatment shall mean that there shall be no discrimination based on sex, either directly or indirectly. For purposes of the principle of equal treatment referred to in paragraph 1, indirect discrimination shall exist where an apparently neutral provision, criterion or practice disadvantages a substantially higher proportion of the members of one sex unless that provision, criterion or practice is appropriate and necessary and can be justified by objective factors unrelated to sex.³⁷

The European Court of Justice in the case Defrenne II differed the direct and indirect discrimination regarding the use of additional legislative and other measures by the national institutions. Thus, direct discrimination is defined as situation which is regulated by article 141 who has a direct effect in the national laws which means that there is no need of additional implementing measures by the Community or the Member States. Indirect discrimination is confirmed only when additional measures are necessary to be used by the Community or by the national institutions of the Member States.³⁸

This was interpreted in the case Macarthys Ltd. V. Smith ³⁹. The Court confirmed that for determining gender discrimination regarding the payment, comparation between the work that is performed is necessary only in cases of full time employment.⁴⁰ In the case of Jenkins⁴¹ Ms. Jenkins worked part time for Kingsgate LTD. She earned less than her male and women colleagues who were full time employed for the same job per hour. Most of the workers were women employed part time in the company. Regarding this situation several questions were put before the European Court of Justice in compliance with the procedure regulated in article 177. The national court was interested if the payment difference for part time compared with the fulltime employers per hour is covered under article 119 when the part time workers are mostly woman. The Court interpreted that the goals of the article 119 is to ensure the implementation of the equal payment rules. The difference in salaries is forbidden based on gender of the worker. The fact that the part time workers are less paid then the fulltime workers per hour is not discrimination covered by article 119 because the payment per hour is calculated no meter the gender of the workers. The differences in salary per hour is justified only in case of gender neutral factors. The employers can only make this kind of differences for economic reasons in order to increase the fulltime employment of men and woman. But in case too many women perform weekly fewer hours compared with male workers the employer politics cannot be explained other than discrimination based on gender. National courts case by case examine the politics regarding payment of part time vis a vis fulltime worker. The final outcome is to determine whether the factors are objective or gender based.

It appears from the questions that the national court was principally concerned to know whether a difference in pay for the work performed part time or full time discriminates women when they are mostly working part time. The answer to the questions is that the purpose of article 119 is to ensure the application of the principle of equal pay for men and women for the equal work. The differences in pay prohibited by that provision are therefore exclusively those based on the differences of the sex of the workers. Consequently, the fact that the part time work is paid at an hourly rate lower than pay for full time work does not amount per se to discrimination prohibited by article 119 provided that the hourly rates are applied to workers belonging to either category without distinction based on sex. If there is no distinction, therefore, the fact that work paid at time rates is remunerated at an hourly rate which varies according to the number of hours is not contrary to the principle of equal pay so far as the difference in pay between part time work and fulltime work is attributable to factors which are objectively justified and are in no way related to any discrimination based on sex. Such may be the case, in particular, when by giving hourly rates or pay lower for part time work than those for full time work the employer is endeavoring, on economic grounds which may be objectively justified, to encourage full time work irrespective of the sex of the worker.⁴² This judgment is important because the Court rules in indirect discrimination.

2.3 Objective justification in cases of indirect discrimination

When the Directive on the burden of proof in cases of sex discrimination was adopted, objective justification became part of the indirect discrimination definition. Indirect discrimination shall exist where an apparently neutral provision, criterion or practice disadvantages a substantially higher proportion of the members of one sex unless that provision, criterion or practice is appropriate and necessary and can be justified by objective factors unrelated to sex.

Very similar definition can be found in the framework agreement which is implemented in the Directive 97/81/EC. The Clause 4 of the framework agreement regulates the principle of nondiscrimination of the part time workers. The part time workers shall not be treated less favorable compared to full time workers. The only exception from this rule is particular circumstances when there is objective justification for discrimination. Thus, the Framework agreement and the Directive for implementing the Framework agreement forbid discrimination for the part time workers and improve the working conditions of this category of workers.⁴³

The Community law does not define the objective justification and the exception for justifying indirect discrimination based on gender. The national courts enjoy discretion right to define the indirect discrimination and the objective justification for indirect discrimination case by case. Still, the European Court of Justice gives instructions for interpreting the objective justification.⁴⁴ Thus, the EC J interprets that certain types of work, working conditions and the organization of working time may justify the indirect discrimination.⁴⁵ The European Court of Justice through the case law further defines the framework of objective justification in cases of indirect discrimination. The European Court of Justice implements the principle of proportionality when deciding the indirect discrimination based on gender in recent cases.

In the case Bilka Kaufhaus⁴⁶ the female worker working part time was paid less than full time workers for the equal work. The European Court of Justice interpreted that the employer should confirm in his defense that the employer had objective justification for different payment.

The German national court in 1984 in the preliminary question procedure asked the European Court of Justice to rule in discrimination case. According the German law, the employer Bilka paid additional pensions to its employees and the only condition for this benefit was the 20 years engagement in the firm of which 15 years full time work. Miss Weber left the firm after 15 years of which 12 years full time work. The management of the company refused the request of the worker for additional pension. Miss Weber sues the company based on the claim that this plan discriminates the female workers. In general, because of the family duties the woman workers are obligate to work part time most of the time in their professional careers. The employer in contrary argues that this pension systems are introduced for economic reasons, the part time workers cost the company more compared with the fulltime workers. The company argues that paying the additional pension for part time workers would increase the costs of the company.

The Court ruled that the company acted in contrary with the article 119 because the part time workers were excluded from the pension system, when this means that more women than men were affected by the decision. This rule is not used in cases where the company confirms that the difference in pension system is made by objective nondiscriminatory factors. In that case the employer must prove that the measures are in compliance with the goal of the employer and principle of proportionality.

The objective justifications based on labor market factors was analyzed in the case of Enderby v. Frencas Health Authorities⁴⁷. Miss Enderby is employed as therapist in the French health organization. Her claim is that she is victim of gender discrimination because she is less paid then her male colleagues employed in the National health institution. The procedure against the employer starts in 1986 claiming that her salary per year is 10 106 pounds while the salary of clinical psychologist or pharmacist are paid 12 527 and 14 106. The Employment tribunal in France rejects the claim on the basis of not having enough fact on direct discrimination. The difference in payment is due to the different collective agreements signed between the management and the trade unions.

Miss Enderby appeals against the decision to the higher court. The higher court regarding the procedure of preliminary rulings forward the questions before the European Court of Justice to interpret the Community law. The questions that arose before the Court were the question on the burden of proof, collective bargaining and the question of accessibility to particular types of work. The European Court of Justice interprets that the statistical analyses show drastic differences in the payment for equal work or work of equal value when performed mostly by women. Article 119 regulates that the employer in such cases must proof that it is objective justification not based on gender of the worker. The fact that the salary for the work of equal value, one performed by male and the other by female is different based on collective agreements is not objective justification for discrimination. If the Court ruled differently in the case then the implementation of the principle of equal payment would differ from the collective agreements. National courts enjoy discretion rights to implement the principle of proportionality when justifying the difference in payment between men and women. This case confirms the fact that the indirect gender discrimination concept has problems when implementing on the labor market.

2.4 Positive actions in the EU legislation

Positive actions are regulated with the EU law and the implementation is harmonized in the Member States. Still in practice there is no compliance for the types of the legitimate measures or for the definition of the concept of the positive actions.

The positive actions are provided in the EU law for implementing the gender equality beginning with the Amsterdam Treaty.⁴⁸ The positive actions are regulated with the article 141 (4) from the Amsterdam treaty and article 2 (8) from the Directive 2002/73/EC of the European Parliament and of the Council of 23 September 2002 amending Council Directive 76/207/EEC on the implementation of the principle of equal treatment for men and women as regards access to employment, vocational training and promotion and working conditions.⁴⁹

Before adopting the Amsterdam treaty, positive actions were introduced with article 2 (4) from the Directive for equal treatment 76/207/EC and the Recommendation of the Council 84/635/EEC for promotion for positive actions for women.⁵⁰ The Preamble of the Directive notifies that the legal articles for equal treatment in the EU law are not adequate for eliminating the differences. Thus, it is necessary additional actions to be used in the national states in the public and private sector. The aim of the affirmative action is eliminating the prejudice for the position of the women in the employment. With this document the Member States can implement additional measures regarding the inequality between genders in the working sector and to promote better balance in the area of employment. Adopting the affirmative action challenges the participation of the women in those sectors where there are less represented, particularly in sectors important for the future development of the society.

When Amsterdam treaty was adopted in article 141 new paragraph 4 was added regulating that 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.

This paragraph 4 of article 141 can be criticized for several reasons. First, the term woman is not mentioned in the paragraph but the term less represented gender. Second, the term special beneficiaries are not concretely defined so it results in confusing situation in practice. Other problem is that national courts enjoy discretion rights to determine the implementation of the positive action case by case.

The Directive for the equal treatment 2002/73/EC with the new article 8 (a) obligates the Member States to create special bodies for promotion, analyze, monitor and support for the implementation of the equal treatment. The Member States every four year report the Commission on the national laws, regulations and administrative acts adopted in compliance with article 141 paragraphs 4. The European Commission regarding this report adopts general report on the comparative achievements in eliminating the discrimination of woman in the working place.

Positive actions can be used in compliance with the article 5 of the Directive 2000/43/EC for implementing the equal treatment no meter the racial or ethnic origin and article 7 of the Directive 2000/78/EC for the equality in employment.⁵¹ Thus Member States can adopt special measures for eliminating the inequalities in practice and realizing the principle of equality.

European Court of Justice implemented the positive actions in the area of gender discrimination on the work place which is understandable because the gender was the first legal base. The Court through the case law interpreted the concept of positive action giving certain directions for the national courts of the Member States.

The European Court of Justice was not certain if the positive action measures are bringing to legal particularization. One of the most important cases regarding this question was the judgment in Kalanke. The Court interpreted that the positive actions aim to improve the position of the woman in the professional life.⁵²

The Court interpreted that the Directive 76/207/EEC annuls the national rules that give priority of the female workers in the sectors where there is less man then women in the current situation. The Court interpreted that the national rule which guarantees absolutely and unconditionally priority for the female workers favorable approach for employment, promotion and professional achievement is not in compliance with the Community law.⁵³ The Court ruled that the existing articles for equal treatment are not enough for eliminating the inequalities in the practice regarding the article 2 (4) of the Directive. This interpretation of the Court for the implementation of the positive actions is not in compliance with the general meaning of the positive actions.⁵⁴

After this judgment was adopted there was period of uncertainty in implementing the positive actions for the less represented gender in the area of employment.⁵⁵ The Commission suggested amendments to the Directive 76/207/EC to further interpret the use of the quotes and other positive actions.

Two years later the Court in the case Marshall⁵⁶ took more flexible opinion for the use of the positive actions.⁵⁷ In this case the Court decided upon the national article of the German law regulating that in the case of two candidates with the same qualifications, but different gender, the employer should give priority to the female worker. Still, the standstill clause is used for determining the secondary criteria for employment, such as professional qualifications and personal characteristics of the candidate in question. Thus, this clause avoids discriminatory practice for male workers who apply for the work. The Court interpreted that this national article of the German law is in compliance with the Article 76/207/EEC because it gives opportunity for objective valuation of the candidates. The judgment in Marshall gives new direction in implementation of the positive actions because allows special treatment of the woman as less represented gender in the area of employment.⁵⁸ This restrictive approach in interpreting the positive action is softened in the judgment Badeck.⁵⁹ The Court ruled that the national law gives priority to the female candidates who have equal qualifications with men candidates regarding the approach of the employment, promotion and professional qualification in compliance with the EC law. The national rules aim to insure that all qualified women are interviewed which does not mean in the same time that there are selected for the place. Thus, it motivates the participation of the women in the higher organizational structures in the companies such as representing bodies of the trade unions, manager and revisers bodies. European Court of Justice interprets that the rules do not create absolute and unconditional priority for the women because the candidates are selected through the process of objective valuation of their personal qualifications.

With this judgment the European Court of Justice adopts similar ruling as with the recent judgments but goes further in broadening the use of the positive actions. In the case Badeck, the Court identifies the need for the flexible clause in avoiding the discrimination of the men workers. Thus, the Court extensively defines the use of the positive actions in compliance with the equal treatment and equal opportunities of the men and women.

After the Treaty of Amsterdam was adopted, the ruling in Abrahamson was interpreted.⁶⁰ The Court ruled that the article 141 and the Directive 76/207/EEC annuls the national rules who give the candidate of the less represented gender priority for the employment compared with the other candidates. The importance of this case is that the European Court of Justice interprets the paragraph 4 of the article 141 in compliance with the principle of proportionality . ⁶¹ In this case the Court ruled that the men and the women candidates for the work must be equally qualified to be selected for the job.

A modern approach in interpreting the positive actions by the European Court of Justice was taken in the case of Lommers⁶² exclusively based on the principle of proportionality. This judgment changed the court practice in interpreting the positive actions if there are in compliance with the Community law. In this case, the Minister of Denmark prescribed special places in the kindergartens for the children of the administrative female workers and in particular cases for the children of the administrative male workers. The justification for these measures the Minister argued with the fact that this measures does not mean reserved places for employment but only for improving the working conditions and professional progress of the female workers.

The ECJ interpreted that the measures must be consistent with the principle of proportionality which means that the deviation from principle equal treatment of men and women is legitimate only if is appropriate and necessary in order to achieve the desired goal. Thus, the European Court of Justice interpreted that the measures of the Dutch Minister subscribed are in relation with the principle of proportionality. This exemption allows for the male workers to have approach to the reserved places if they take care of the children. Finally, in the case Briheche v Ministre de L'Interieur, Ministre de L'education nationale and minister de la justice⁶³ the Court decided in the procedure of the preliminary ruling for approximation of the French law with the Community law. The Court ruled that in this case the national rules are contrary with the Community discrimination law. The national rules give automatically and unconditionally priority to the candidates of particular category which is forbidden by the Treaty of Amsterdam and the Directive 2002/73/EC.

The European Union has one of the best ant discriminatory law systems in the world. In the beginning the Union established the equal pay rules for equal work or work of equal values . The European Court of Justice played important role in implementing the equal pay rules in the practice. It ruled in many cases and the positive case study was further use to broaden the antidiscrimination law. European Union adopted important secondary law for implementing the gender equality in practice. The most important is the Recast Directive adopted in 2006. The 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 unifies the previous secondary law for gender equality.

The European Court for Justice had a restrictive approach toward using the positive actions in practice. The Court created legal uncertainty when using the terms flexible quotes, fix quotes, standstill clause without further explanation. New trend of the Court rulings in implementation of the positive action measures is to use the principle of proportionality. That means that positive actions are legitimate only if there is no alternative measure less harmful for the people that are affected. The role of the Court is restricted regarding the formal jurisdiction as implementer of the law and not the creator of the law.

2.5 Harassment Definitions

Public awareness of the sexual harassment issue was raised in United States and the term sexual harassment was brought to the world during 1990. Although Europeans were often sceptical about the relevance of the issue to their lives, surveys report that about the same percentage of women in European Union Member States and in the United States have experienced sexual harassment at work.

It took years for the European Union to adopt a legal framework for the prevention of gender-based harassment even though the research taken in the Member States showed that this was a serious problem for women workers. The European Commission reports that almost 30 to 50 per cent of women workers are facing sexual harassment compared with 10 per cent of the male population who are usually sexually abused by other men. Women workers who experienced sexual harassment in the work place testified to the psychological and physical pain for the victims which results in the loss of jobs.

There have been several scandals involving men accused of harassment. The British Crown has been in the news twice regarding allegations of sexual harassment among the staff. Most recently, Elaine Day, 45 years old, a former personal assistant who worked in Prince Charles's household for four years, resigned and filed a sexual harassment and unfair dismissal suit, testifying that her dismissal was a retaliation for her complaint of ‘inappropriate touching' by the Prince's assistant private secretary Paul Kefford. She said that she felt threatened by Kefford and that he had sexually harassed two other staff members.⁶⁴

The European Union has been a major force in putting sexual harassment on the agenda of its Member States. The European Union has created a new way of addressing sexual harassment on the work place due to the historical tradition of workers' rights and protection of vulnerable groups. This time harassment and sexual harassment is addressed in the broader context of violations against workers' dignity. Before the Directive 2002/73/EC was adopted the European Union brought several important soft law instruments. The European Parliament Resolution of 1986 on violence against women, the 1990 Council Resolution on the protection of the dignity of women and men at work, the 1991 Commission Recommendation on protecting the dignity of women and men at work with its annexed Code of Practice, the 1991 Council Declaration on the implementation of the Commission's recommendation and Code of Practice, the 1993 Guide to implementing the Commission's Code of Practice, the European Parliament Resolution of 1994 on a new post of a confidential counsellor at the workplace, 3rd Action Programme for equal opportunities for women and men for the period of years 1991 to 1995, the action programmes for equal opportunities for men and women adopted by the Council which emphasize the need for decisive action to combat sexual harassment.⁶⁵

During this period there was a big difference in the legal definition of sexual harassment in the Member States. For example, in Belgium, Ireland and the Netherlands according to EU soft law instruments they brought the most far-reaching legal reforms against sexual harassment compared with Greece and Portugal where the authorities ignore the sexual harassment issue. Despite some legal reforms in the early 1990s, implementation and enforcement mechanisms so far have been less effective than in the United States.

[...]

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¹ Case Hoekstra v Bestuur der Bedrijfsverening voor detailhandel en Amachten 6 ECR 177

² https://en.wikipedia.org/wiki/Accession_of_Turkey_to_the_European_Union#1950s%E2%80%931990s

³ ECJ, judgment of 30 April 1974, Case 181/73, Haegeman v Belgium 1974 ECR 449 paras 5, 6

⁴ Case 12/86 Meryem Demirel v Stadt Schwabisch Gmund (1987), ECR 3719, such as the case Haegeman v Belgium, Case 181/73 (1974), ECR 449.

⁵ Case 30/88, Greece v. Commission, 1989, ECR 3711 para 13

⁶ Case C-171/95 Tetik 1997 ECR 1-329

⁷ Case C-292/89 Antonissen 1991 ECR I-745

⁸ Case C-1/97 Birden 1998 ECR

⁹ OJ L 251 03/10/2003, P 0012-0018

¹⁰ http://www.ijf.hr/eng/EU3/kapural.pdf

¹¹ Treaty concerning the accession of the Republic of Bulgaria and Romania to the EU, Act of Accession, Annex VI, Chapter 1 for Bulgaria and Romania, signed in Luxembourg on 25 April 2005. Treaty of Accession of the Czech Republic, Estonia, Cyprus, Malta, Poland, Slovenia and Slovakia, Act of Accession, Part Four, Temporary Provisions, Title 1: Transitional Measures, signed in Athens on 16 April 2003

¹² EU Enlargement-Bulgaria and Romania, migration implications for the UK, an ippr FactFile, april 2006, p. 8

¹³ European Integration Consortium, Labor mobility within the EU in the context of enlargement and the functioning of the transitional arrangement, p.4

¹⁴ Daniel Vaughan Whitehead, Francois Eyraud, The Evolving World of Work in the Enlarged EU: Progress and Vulnerability, International Labor office, 2007, p.42

¹⁵ EU Enlargement-Bulgaria and Romania, migration implications for the UK, an ippr FactFile, april 2006, p. 8

¹⁶ European Integration Consortium, Labor mobility within the EU in the context of enlargement and the functioning of the transitional arrangement, p.4

¹⁷ Daniel Vaughan Whitehead, Francois Eyraud, The Evolving World of Work in the Enlarged EU: Progress and Vulnerability, International Labor office, 2007, p.42

¹⁸ http://en.wikipedia.org/wiki/Defrenne_v_Sabena_%28No_2%29

¹⁹ Council Directive 75/117/EEC of 10 February 1975 on the approximation of the laws of the Member States relating to the application of the principle of equal pay for men and women Official Journal L 045 , 19/02/1975 P. 0019 - 0020

²⁰ Ibid article 8

²¹ Article 244 and article 256 of the Treaty for establishing the European Community and article 164 of the EUROATOM Treaty

²² Case Defrenne v. Belgium (Defrenne I) 1971 ECR 445

²³ Case 43/75, Defrenne v Sabena, 1976 ECR 455.

²⁴ Monitoring the EU Accession Process: Equal Opportunities for Women and Men, Open society institute, 2002.

²⁵ Case Van Gend en Loos, Case 26/62, 1963 ECR 1. More for the direct effect of the Community law in Hartley C. T. “The Foundations of European Community Law”, Oxford University Press, 2003, pp. 197­202.

²⁶ Sweet S. A. “The Judical Construction of Europe”, Oxford University Press, 2003, p.15 or Blainpain R. “European Labor Law ”, Kluwer Law International, 2003, p.690.

²⁷ Hartley C. T. “The Foundations of European Community Law “, Oxford University Press, 2003, pp. 212­223.

²⁸ Case 129/79 Macarthys Ltd v Smith ECR 1980, 1275. Casee where the difference in payment is not connected with the gender of the employee see Case 170/84 Bilka- Kaufhaus GmbH v Karin Weber von Hartz 1986 ECR 1607.

²⁹ Case 61/81, Commission v. UK 1982 ECR 2601.

³⁰ Ibid para 9.

³¹ Case C-381/99, Brunhofer v. Österreichischer Bank Postparkasse 2001 ECR I-4961,para.78; Case C­309/97, Angesteltenbetriebsrat der Wiener Gebietskrankenkasse 1999 ECR I-2865, para 19.

³² Ellis E. The Recent Jurisprudence of the Court of Justice in the Field of Sex equality, 2000, CML Rev. 1403, p.37.

³³ Case 109/88, Handels-og Kontorfunktionaerernes Forbund I Danmark v. Dansk Arbejdsgiverforering, acting on behalf of Danfoss 1989 ECR 3199.

³⁴ Case 318/86, Commission v. France, 1988 ECR 3559, para.27.

³⁵ Council Directive 97/80/EC of 15 December 1997 on the burden of proof in cases of discrimination based on sex, OJ L 14, 20.1.1998, p. 6-8

³⁶ Council Directive 97/80/EC of 15 December 1997 on the burden of proof in cases of discrimination based on sex, Official Journal L 014 , 20/01/1998 P. 0006 - 0008

³⁷ Council Directive 97/80/EC of 15 December 1997 on the burden of proof in cases of discrimination based on sex, Official Journal L 014, 20/01/1998 P. 0006 - 0008

³⁸ Sweet C. A. The Judicial Construction of Europe, Oxford, Oxford University Press, 2004, p. 159.

³⁹ Case 129/79, Macarthys Ltd. V. Smith 1980 ECR 1275, paras. 14-15.

⁴⁰ Case C-200/91, Coloroll Pension Trustees Ltd. V. James Richard Russel 1994 ECR 1-4389, paras. 103­104.

⁴¹ Case 96/80, Jenkins v. Kingsgate (Clothing Productions) Ltd. 1981 ECR 911

⁴² Ibid para. 9, 10, 11, 12, 13, 14.

⁴³ Similar definitions are found in the Council Directive 2000/43/EC of 29 June 2000 implementing the principle of equal treatment between persons irrespective of racial or ethnic origin Official Journal L 180, 19/07/2000 P. 0022 - 0026

⁴⁴ Craig P. Grainne de Burca, “EU law, Text, Cases and Materials, Oxford, Oxford University Press, 2003, p. 855.

⁴⁵ Case C- 400/93, Rojal Copenhagen 1995 ECR 1-1275.

⁴⁶ Case 170/84, Bilka-Kaufhaus GmbH v Karin Weber von Hartz 1986 ECR 1607.

⁴⁷ Case 127/92 Enderby v Frenchay Health Authority and the Secretary of State for Health 1993 ECR 5535.

⁴⁸ TREATY OF AMSTERDAM AMENDING THE TREATY ON EUROPEAN UNION, THE TREATIES ESTABLISHING THE EUROPEAN COMMUNITIES AND RELATED ACTS Official Journal C 340, 10 November 1997

⁴⁹ O.J L 039, 14/02/1976 p. 0040-0042

⁵⁰ O.J L 331, 19/12/1984, p. 0034-0035.

⁵¹ O. J L 303 of 02/12/2000 p. 0016-0022

⁵² Barnard, D. The principle of equality in the community context: P., Grant, Kalanke and Marshall: four uneasy bedfellows, Cambridge Law Journal, 57 (2), July (1998), pp. 352-357.

⁵³ General Advocate Thesauro opinion in Case C-450/93, Kalanke v. Freie Hansestadt Bremen, 1995, ECR I-3051 (para 8).

⁵⁴ McColgan, A. Discrimination law, text, cases and materials, Oxford and Portland, 2005, p. 162.

⁵⁵ Brems E., Case C-450/93, Kalanke v. Freie Hansestadt Bremen, October 17, 1995, Columbia Journal of European Law, (1996), pp. 172-179.

⁵⁶ Case C-409/95, Helmut Marshall v. Land Westfalen, 1997, ECR I-6363.

⁵⁷ Barnard. C. Softening the approach to quotas: positive action after Marshall, JSWL, 20, (1998), p. 333.

⁵⁸ Barnard C., EC Employment Law, Oxford, Oxford University Press, 2000, r. 249.

⁵⁹ Case C-158/97, Georg Badeck and Others, interveners v.Hessische Ministerprasident and Landesanwalt beim Staatsgerichtshof des Landes Hessen, ECR, I-1877.

⁶⁰ Case C-407/98, Katarina Abrahamsson and Leif Anderson v Elisabet Fogelqvist, ECR I-5539.

⁶¹ Hartley T. C., The Foundations of European Community law, Oxford University press, 2003, pp. 213-215

⁶² Case C-476/99, H. Lommers v Minister van Landbouw, Natuurbeheer en Visseri, ,2002, ECR, I-2891.

⁶³ Case C-319/03, Serge Briheche v Ministre de L’Interieur, Ministre de L’education nationale and minister de la justice 2004, ECR, I-8801.

⁶⁴ Faisal Al Yafai, ‘Royal secretary tells of clique’, Guardian, 20 November 2004, www.guardian.co.uk/

⁶⁵ http ://ec.europa. eu/justice/gender-equality/