The Novel Directive On Discrimination Against Eu Citizen Workers: Spitting Into The Wind?

Steve Peers

Surprisingly enough, despite Earth contention near the number of European Union citizens who are workers ('EU workers') who displace betwixt Member States, the Council as well as the European Parliament direct maintain of late agreed on novel legislation on this issue. This novel Directive, which concerns the enforcement of the rules banning discrimination against European Union workers, was approved yesteryear the European Parliament this week, as well as volition probable hold upwards formally adopted yesteryear the Council shortly. Member U.S.A. volition direct maintain 2 years to transpose it.

The Directive makes clear that its discipline affair is the enforcement as well as application of the rights conferred yesteryear Article 45 TFEU as well as Regulation 492/2011 upon European Union workers. In other words, it doesn't improve the noun rights on this issue. This presumably explains why it has non encounter opposition from the Member U.S.A. amongst to a greater extent than misgivings near gratis movement, such equally the UK.

As for the range of the Directive, it applies to the rules on access to employment, working conditions, social advantages, merchandise unions, training, housing as well as the instruction of children for European Union workers. Notably, it doesn't apply to household unit of measurement reunion issues. Nor does it apply to European Union citizens to a greater extent than generally.

Next, the rules on enforcement kickoff of all oblige Member U.S.A. to brand available judicial procedures to enforce these rights. They also involve Member U.S.A. to allow associations, organisations or other legal entities to move into into legal proceedings, either inward back upwards of or on behalf of the worker as well as his/her family. But these rules are without prejudice to national rules on fourth dimension limits, equally along equally those limits do non homecoming the application of European Union constabulary virtually impossible or excessively difficult. There is no reference to legal aid.

More generally, Member U.S.A. must ensure that a trunk of around kind promotes equal treatment, equally good equally the abolition of non-discriminatory obstacles to gratis movement, for European Union workers as well as their household unit of measurement members. This may hold upwards an existing equality body. The equality bodies must direct maintain competence equally regards the provision of legal advice or assistance (in which case, their assistance must hold upwards gratis of charge), the demeanor of independent surveys, the publication of independent reports, as well as the publication of relevant information. There shall also hold upwards a dialogue amongst relevant actors at national level. Finally, Member U.S.A. must disseminate data on issues relating to the gratis crusade of European Union workers.

Comments

This Directive is manifestly inspired yesteryear European Union legislation on sex equality and race equality inward particular. However, equally compared to that legislation, it is missing provisions on compensation (as compared to the sexual activity equality law) and burden of proof. So spell the Directive does furnish for access to court, some telephone commutation aspects of the litigation physical care for (evidence rules as well as concrete remedies) are non addressed. In around ways it is stronger than the full general framework job equality Directive (which lacks rules on equality bodies), merely inward other ways weaker (since the framework Directive includes rules on the burden of proof). The lack of a full general dominion on legal aid volition also forestall around workers from accessing courts inward practice, except where they are able to obtain the back upwards of an equality body. But it is unlikely that such bodies will have a huge budget to spare on litigation. 

The comparing amongst other equality laws suggests an endeavour to modify the mindset of the fighting - implicitly equating discrimination against European Union workers amongst discrimination on grounds of sex, race et al, which has move widely regarded equally socially unacceptable. But spell the European Union legislation as regards those issues to around extent followed the tendency of world opinion, the novel Directive arguably pushes against the prevailing trend, at to the lowest degree inward around Member States. We volition reckon inward do whether an equality Directive tin give notice yet direct maintain an acquit on when it is spitting into the political wind.

The novel Directive volition also direct maintain the effect of making European Union workers' rights easier to enforce inward practice, as well as to that extent it tin give notice solely hold upwards welcomed. However, it is questionable why the Directive should non address the seat of European Union citizens to a greater extent than broadly, as well as of the admission of workers' household unit of measurement members inward particular. For many years, European Union constabulary has moved towards a global model of European Union citizenship, inward house of categorising different groups of citizens depending on their type of activities, although admittedly those European Union citizens who exercise economic activities are a relatively privileged category nether the European Union citizens' Directive. In that context, the additional relative privilege conferred upon workers inward this novel Directive is a stride backwards.

It mightiness also hold upwards questioned, since gratis crusade of workers has been guaranteed inward regulation since 1968, why it took as well as hence long for the European Union Commission to suggest this legislation. Surely the difficulty inward do of enforcing European Union workers' rights inward do is non a phenomenon of the final few years?  At least, why was this number non addressed when the electrical current comprehensive legislative framework on equality rights was established yesteryear the EU, over a decade ago?

Finally, to the extent that the novel Directive borrows concepts from other equality Directives, the relevant instance constabulary should hold upwards relevant yesteryear analogy. This could Pb to interesting results, given that hostility to European Union workers has move to a greater extent than openly expressed inward around Member U.S.A. than prejudice against workers on grounds of sex, race, organized religious belief as well as and hence on. For instance, inward the Feryn judgment the CJEU ruled that an employer advertising that it would non hire ethnic minorities was inward breach of the race equality Directive. What would it straightaway brand of a British Prime Minister who declares, "British jobs for British workers"?


Barnard & Peers: chapter 13 

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