EU Citizenship and Equality Law
13 important questions on EU Citizenship and Equality Law
EU citizenship and the role of the CJEU
- Economically inactive EU citizens
- EU citizenship implies EU law of the Court to be very judicially activist
- Deus ex machina --> story telling technique --> Court uses this as metaphor to define EU citizenship to solve an unsolvable plot
- "EU citizenship as the fairy godmother of EU law"
- An expansion of EU rights (family reunification, equal access to social benefits)
EU citizenship = fundamental status
- TFEU: Article 20
- CJEU: "Union citizenship is destined to the fundamental status of nationals of the Member States" (Grzelczyk, C-184/99, par. 31)
--> The Court itself (judicial) branch initiated this definition to citizenship
Zambrano, CJEU, Case C-34/09 (family reunification)
Quotes of the Court
This led to a situation where Member States were puzzled about the verdict of the Court because they were scared that this would have a domino effect, in which all parents from third countries with Union citizen children would claim these rights, derived from Zambrano (like in Dereci). Would this lead to a loss of sovereignty of Member States?
Article 20 TFEU & Access to social benefits
- Article 24(2) Directive 2004/38 (social assistance)
- Article 7 Regulation 492/2011 (social advantage)
CJEU: difference between social assistance and social advantage is defined in case law
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Case study: Social benefits based on EU citizenship (Martinez Sala C-85/96)
- Spanish national who moved to Germany but was then unemployed and applied for social assistance and child's allowance
- CJEU concluded she is not a worker so in principle she is not allowed to profit from social advantages but still, because of the introduction of EU citizenship, this was of fundamental status that Mrs. Sala was allowed to benefit from social advantages
- Not to forget: As a starting point that should have been proceeded before granting a permit: She should have had enough resources to avoid becoming a burden on the social system.
Case study: Social benefits based on EU citizenship (CJEU, Collins, C-138/02)
CJEU: ‘In view of the establishment of citizenship of the Union […] it is no longer possible to exclude from the scope of art. 45 TFEU […] a benefit of a financial nature intended to facilitate access to employment in the labour market of a Member State.’
Does this lure people from other MS to move to host member state to profit from social benefits? (Social tourism)
A more critical approach to EU citizenship (not limitless profit)
Aim of this limit on access to social benefits is to ensure the stability and sustainability of benefit systems.
Wide margin of appreciation for Member States in deciding which criteria are to be used when assessing the degree of connection to the state (see for instance Gottwald, CJEU, C-103/08).
Labour and Equality law
- Social market economy
- Economic and social rationale behind labour and equality law
Economic rationale: harmonized areas of national law to prevent member states from being able to exploit lower labour costs in other member states by gaining comparative advantage. Aimed at guaranteeing a competitive market for laborers through the entire market, in order to harmonize (to some extend) labour and equality law
Social rationale: more than just an economic union, social progress is just as important if you want to move beyond the point of economic integration.
Competence of EU law in labour and equality law (shared competence)
- non-discrimination
- Equality between men and women
- Flexible work
- Working condition (working times, health and safety, etc)
- Employment protection
MS regulate the following aspects of labour law:
- Pay
- Right to association
- Right to strike
- Right to impose lock-outs
The EU cannot regulate the above mentioned aspects of labour law.
Legal documents that the EU may use to regulate:
- TEU and TFEU
- Secondary legislation (mainly directives)
- CFREU
- ECHR
- Constitutional traditions of the Member States
- International law (United Nations)
- Case law (CJEU & ECtHR)
A lot of sources may be used in labour and equality law, which makes this area of law rather extensive.
Difference between formal and substantive equality
- Treating everybody equally
- Ban on direct discrimination on EU level
The EU does not perceive formal equality to be sufficient so:
Substantive equality:
- Also ban on indirect discrimination on EU level
- Equality of outcome and results. Equal input and output
- Reverse burden of proof
Difference between direct and indirect discrimination based on equality law
- Occurs when one person is treated less favorably than the other is, has been or would be treated in a comparable situation
Indirect discrimination:
- occurs where an apparently neutral provision, criterion or practice would put other persons of [the protected group] at a particular disadvantage compared with other persons, unless that provision, criterion or practice is objectively justified by a legitimate aim and the means of achieving are appropriate and necessary.
CFREU Article 21: Non-discrimination clause
- Any discrimination based on any grounds, such as sex, race, color, ethnic or social origin, genetic features, language, religion or belief, political or any other opinion, membership of a national minority, property, birth, disability, age or sexual orientation shall be prohibited
- Prohibits any form of discrimination
- Although article 19 TFEU only enables to protect against discrimination based on directives, Article 21 of the CFREU enlarges the scope
- However, Article 19 TFEU is only a legal base
Article 157 TFEU = Equal pay of men and women
- Directive 2006/54/EC of the European Parliament and of the Council of 5th July 2006 on the implementation of the principle of equal opportunities and equal treatment of men and women on matters of employment and occupation
Double rationale:
- Economic
- Social/ human rights
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