...And how to get a job in Estonia
Oct. 13th, 2004 12:00 am![[personal profile]](https://www.dreamwidth.org/img/silk/identity/user.png){kind=small}
major_clangerAnother common question, in the European Community Law part of the paper, gives you a family group of disparate nationalities who want to come to an EU country (usually the UK) and then run into some kind of nationality or sex discrimination issue. So, now for the guide to this sort of question:
First - consider nationalities of the people concerned. Remember EU enlargement earlier this year!
Article 39 EC Treaty - basic rights of migrant workers. Right to take up work in another Member State, right to travel to take up work (includes right to enter another Member State to seek work, although there is not indefinite leave to do this). Work must be a genuine economic activity (Levin). Right to compete for employment free of discrimination on grounds of nationality, although reasonable vocational tests permitted. Limits on application to certain jobs relating to state security.
EC Regulation 1612/68 - Rights of migrant workers and families. Amplifies Art 39 EC - equality in all areas of treatment at work. Rights of members of worker's family to accompany him/her: spouse, children under 21, relatives in ascending line of worker or spouse. NB case law is that spouse does not cover unmarried partner (Netherlands v Reed) but that if host nation recognises civil partnerships then this may suffice.
EC Directive 68/360 - Administration of migrant workers and families. Workers may enter host nation via suitable national ID and passport, may be issued with residence permit via ID/passport and proof of work. Permitted family members may enter via ID (or visa if not EU citizens) and proof of relationship to and (if necessary) dependency on worker; issued with residence permit via these documents. Residence permit is evidence of right of abode, not the source of it (Piecke).
EC Directive 64/221 - Grounds for refusing entry to migrant workers. Personal conduct (includes voluntary membership of undesirable groups, c.f. Van Duys); past criminal record if severe enough (current danger?); certain diseases.
Recognition of qualifications - Directive 89/48 generally, or specific sectoral directives. Host nation under duty to assess other EU national qualifications for comparability (Vlassopolou). Linguistic knowledge may be specified if it is a core element of job (Groener). National laws on professional requirements must not be used as a covert form of discrimination (Gebhard).
Article 141 EC - Equal pay for both sexes. 'Pay' covers all aspects of remuneration or reward (Garland). Amplified by Directive 75/117 (equal pay for equivalent work) and Directive 76/207 (equality of treatment in all areas of recruitment, work, training, promotion). Positive discrimination permitted, but only under state legislative control and must not be absolute. Sex may be specified if it is an integral part of job function (but strictly interpreted). Dismissal or refusal to recruit on grounds of pregnancy considered to be sex discrimination (Dekker and Webb. Discrimination on basis of sexual orientation not covered (Grant) but forthcoming legislation is changing this.
Indirect discrimination - when a rule or policy has effect of discrimination on sex. Prohibited unless Bilka-Kaufhaus criteria apply - must be objectively justified as necessary, appropriate and proportionate to achieve genuine need of job.
Remember to consider extent of direct effect when applying directives (esp if question states that there is no national law, or national law is defective). Directives are directly applicable against the state (Van Duyn), emanations of the state such as local government (Marshall v Southampton Health Authority), and private bodies given para-state functions (Foster v British Gas). In other cases, where national law exists but does not properly implement directive, it is to be read so as to give effect as far as possible (Marleasing, Von Colson, Litster). If there is no relevant national law, host nation may be liable for damages under Francovich). Treaty articles and Regulations are directly applicable against the state (Van Gend en Loos, Leonesio) and private bodies (Defrenne) if Van Gend criteria apply (clear, unambiguous and mandatory).
First - consider nationalities of the people concerned. Remember EU enlargement earlier this year!
Article 39 EC Treaty - basic rights of migrant workers. Right to take up work in another Member State, right to travel to take up work (includes right to enter another Member State to seek work, although there is not indefinite leave to do this). Work must be a genuine economic activity (Levin). Right to compete for employment free of discrimination on grounds of nationality, although reasonable vocational tests permitted. Limits on application to certain jobs relating to state security.
EC Regulation 1612/68 - Rights of migrant workers and families. Amplifies Art 39 EC - equality in all areas of treatment at work. Rights of members of worker's family to accompany him/her: spouse, children under 21, relatives in ascending line of worker or spouse. NB case law is that spouse does not cover unmarried partner (Netherlands v Reed) but that if host nation recognises civil partnerships then this may suffice.
EC Directive 68/360 - Administration of migrant workers and families. Workers may enter host nation via suitable national ID and passport, may be issued with residence permit via ID/passport and proof of work. Permitted family members may enter via ID (or visa if not EU citizens) and proof of relationship to and (if necessary) dependency on worker; issued with residence permit via these documents. Residence permit is evidence of right of abode, not the source of it (Piecke).
EC Directive 64/221 - Grounds for refusing entry to migrant workers. Personal conduct (includes voluntary membership of undesirable groups, c.f. Van Duys); past criminal record if severe enough (current danger?); certain diseases.
Recognition of qualifications - Directive 89/48 generally, or specific sectoral directives. Host nation under duty to assess other EU national qualifications for comparability (Vlassopolou). Linguistic knowledge may be specified if it is a core element of job (Groener). National laws on professional requirements must not be used as a covert form of discrimination (Gebhard).
Article 141 EC - Equal pay for both sexes. 'Pay' covers all aspects of remuneration or reward (Garland). Amplified by Directive 75/117 (equal pay for equivalent work) and Directive 76/207 (equality of treatment in all areas of recruitment, work, training, promotion). Positive discrimination permitted, but only under state legislative control and must not be absolute. Sex may be specified if it is an integral part of job function (but strictly interpreted). Dismissal or refusal to recruit on grounds of pregnancy considered to be sex discrimination (Dekker and Webb. Discrimination on basis of sexual orientation not covered (Grant) but forthcoming legislation is changing this.
Indirect discrimination - when a rule or policy has effect of discrimination on sex. Prohibited unless Bilka-Kaufhaus criteria apply - must be objectively justified as necessary, appropriate and proportionate to achieve genuine need of job.
Remember to consider extent of direct effect when applying directives (esp if question states that there is no national law, or national law is defective). Directives are directly applicable against the state (Van Duyn), emanations of the state such as local government (Marshall v Southampton Health Authority), and private bodies given para-state functions (Foster v British Gas). In other cases, where national law exists but does not properly implement directive, it is to be read so as to give effect as far as possible (Marleasing, Von Colson, Litster). If there is no relevant national law, host nation may be liable for damages under Francovich). Treaty articles and Regulations are directly applicable against the state (Van Gend en Loos, Leonesio) and private bodies (Defrenne) if Van Gend criteria apply (clear, unambiguous and mandatory).
