Professional Documents
Culture Documents
Curs 2 Part 2
Curs 2 Part 2
1
ia the field of equality between men and women, established by Decision 848/2004/EC of
-ic European Parliament and of the Council of April 29, 2004, [2004] O.J. LI57
republished with corrigendum: [2004] O.J. L195/7).
** fee I.enaerts, "Le respect des droits fondementaux en tant que principe constitutionnel de
fUnion europeenne", in Melanges Michel Waelbroeck (Bruylant, Brussels, 1999), I,
413-457. See also Art. 21(1) of the Charter of Fundamental Rights of the European Union,
r.ich, in addition to the grounds for discrimination mentioned in Art. 13 of the EC Treaty,
rrohibits discrimination on grounds of colour, social origin, genetic features, language,
political or any other opinion, membership of a naional minority, property and birth.
, 133
under the EU Constitution, which adds only that the Union shall itself aim
to combat discrimination on the grounds specified (Art. III-118).
2 6 9
So far,
the Community Courts did not regard unequal treatment of married
couples and homosexual couples as prohibited discrimination.
270
According
to the most recent Staff Regulations, Community officials in a non-marital
relationship recognised by a Member State as a stable partnership who dq
not have legal access to marriage should be granted the same range of
benefits as married couples.
27 1
Likewise, recent Community legislation on
the right of citizens of the Union and their family members to move and
reside freely within the territory of the Member States includes among the
"family member" of a citizen the registered partner if the legislation of the
host Member State treats registered partnership as equivalent to
marriage.
2 7 2
It is also contrary to the principie of equal treatment for the
Community institutions to make the grant of an allowance for an officia's
children who have lost their other parent dependent upon the conduion
that the official was married to that other parent.
2 7 3
2 6 9
In addition, Art. 1-45 of the EU Constitution proclaims the general principie of .
equality of citizens of the Union before the Union's institutions, bodies, offices
agencies (principie of democratic equality).
2 7 0
The Courts referred to the legislator's power to make societal choices connected with jH
assessment of such discrimination: ECJ, Case C-249/96 Grant [1998] E.C.R. 1-621, ]
(n.256, supra); CFI, Case T-264/97 D. v Council [1999] E.C.R.-S.C. II-l , para. 32.
Court of Justice did not consider that the situation of a married official was comparable
the same-sex partnerships recognised by some Member States: ECJ, Joined Cases C '-
P and C-125/99 P D. v Council [2001] E.C.R. 1-4319, paras 47-52; for a criticai view,
Berthou and Masselot, "Le mariage, les partenariats et la CJCE: menage trois" (20.*
C.D.E. 679-694. For earlier articles, see Weyembergh, "Les droits des homosexuels de^---
le juge communautaire" (1998) J.T.D.E. 110-113; Guiguet, "Le droit communautai ...
reconnaissance des partnenaires de mcme sexe" (1999) C.D.E. 537-567; JesstHsJl
d'Oliveira, "Vrijheid van verkeer voor geregisteerde partners in de Europese Unie"
N.J.B. 205-210.
2 7 1
Council Regulation (EC, Euratom) No. 723/2004 amending the Staff Regulations
officials of the European Communities and the Conditions of Employment of i
servants of the European Communities ([2004] O.J. L124/1) makes certain bcncv.-
formerly granted only to married couples available to an official who is registered ii .
stable non-marital partner, provided that the couple produces a legal document recogn^j l
as such by a Member State, or any competent authority of a Member State, acknowledgijH
their status as non-marital partners, neither partner is in a marital relationship
another non-marital partnership, the partners are not related in specified ways andpflj
couple has no access to legal marriage in a Member State (Art. l d(l ) and Annex \ ! I -r
l(2)(c)). For previous treatment of such a partnership in the same way as marriage, KjjflH
Commission's answers of October 15, 2001 to question P-2438/01 (Buitenweg), [2()02fijHI
C93E/131, and of March 12, 2002 to question E-3261/01 (Swiebel), [2003] O.J. C281
Jessurun d'Oliveira, "De Europese Commissie erkent het Nederlands huwelijk"
N..1.B. 2035-2040. Cf. the refusal to accord equal treatment in the Council's ansi.:
December 17, 2001 to question E-1830/01 (Van der Laan), [2002] O.J. C115E/16.
2 7 2
Directive 2004/38 on the right of the citizen of the Union and their family members
move and reside freely within the territory of the Member States, [2004] O.J. L158/T"
that Directive, paras 5-127 and 12-009).
2 7 3
CFI (judgment of January 30, 2003), Case 1-307/00 C. v Commission, not yet repff
paras 48-56.
134
2. Content
a Substantive discrimination
Definition. In Community law, the prohibition of discrimination does not 5-065
only require equal treatment formally to be complied with, but also that no
inequality is caused in practice. Where that oceurs, there is substantive
discrimination. According to the Court of Justice, it is specifically
prohibited to treat "either similar situations differently or different
situations identically".
274
In order to categorise cases as "similar" or
"different", they must be considered in the light of the aims of the measure
ifl question. Substantive discrimination will be tolerated only if the
iifference in treatment (or, conversely, the absence of differential
treatment in the presence of differing cases) is justified.
275
In order for this
be so, the "unequal" treatment must be proportionate to the objective
ught by the authority.
27 6
Often, the reason given in justification is
;oasidered together with the question whether the cases in question are
lilar or different.
277
k Direct and indirect discrimination
Definition. Discrimination is direct where a measure employs a prohibited 5-066
.inguishing criterion (e.g. nationality) or subjects different cases to
nally similar rules.
ndirect discrimination arises where. although not making use of an
' -wful distinguishing criterion, a provision has effects coinciding with or
v.oaehing those of such a distinguishing criterion as a result of its use of
-r distinguishing criteria which are not as such prohibited.
2 7 8
.^rdinglv, the Court of Justice has held that "[t]he rules regarding
KP. Case 13/63 Italy v Commission [1963] E.C.R. 165; see also ECJ, Case 8/82 Wagner v
,c'.m [1983] E.C.R. 371, para. 18. For instances in which dissimilar situations required
ipigring measures, see ECJ, Case 230/78 Eridania [1979] E.C.R. 2749, paras 18-19, at
B - 2 7 6 8 ; CFI, Case T-47/91 Auzat v Commission [1992] E.C.R. 11-2535 and Case
"C- ~i 1 Scaramuzza v Commission [1992] E.C.R. 11-2557.
BWP. Joined Cases 117/76 and 16/77 Ruckdeschel [1977] E.C.R. 1753, para. 7. For a casc in
HMch unequal treatment arising out of uniform rules (establishment of a common
BBWKtfton of the market in bananas) laid down for differing situations was justified by
"r iim of integrating the naional markets, see ECJ, Case C-280/93 Germany v Council
-'] E.C.R. 1-4973, para. 74; this judgment was criticised in Everling, "Will Europe Slip
' ~< Sananas? The Banana Judgment of the Court of Justice and National Courts" (1996)
..L.R. 401, at 415-416. For unequal treatment which is justified on grounds of
' CT.~onm.ent protection, see para. 5-111.
~ff -lflerent treatment which was objectively justified but not proporional, sec ECJ Casc
f
X - >
M
" Pastoors and Trans-Cap [1997] E.C.R. 1-285, paras 19-26.
ii i. e.g. ECJ, Case 35/80DenkavitNederland [1981] E.C.R. 45, paras 16 17. Accordingly, il
|possible to find that the principie of equality has been infringed where a diffcrence in
3*Bfcsaenl does not have regard to the principie of proportionality: sec E( VI, (lase ('-323/95
- s [1997] E.C.R. 1-1711, paras 24-25.
- general discussion, see Garronne, "La discrimination indirecte en droit
in^rjnautaire: vers une theorie generale" (1994) R.T.D.E. 425-449.
equality of treatment, both in the Treaty and in Article 7 of Regulation No.
1612/68, forbid not only overt discrimination by reason of nationality bu;
also all covert forms of discrimination which, by the application of otherj
criteria of differentiation, lead in fact to the same result".
279
Thus, for
instance, the criterion of residence may in fact produce the same result as
discrimination on grounds of nationality.
280
A measure will also tjflj
indirectly discriminatory where it distinguishes only formally betweeft!:
different cases, but in reality treats them the same.
5-067 Indirect discrimination. The Court of Justice has repeatedly had to
consider cases of indirect sex discrimination, particularly when interpretul;,
the "principie of equal pay for male and female workers for equal woi k or
work of equal value" enshrined in Art. 141 of the EC Treaty.
281
Thus, ihi.-
question arose whether a difference in the level of pay for work carried oul
part time and the same work carried out full time was capable ofj
constituting discrimination where the category of part-time workers was
exclusively or predominantly comprised of women. The Court of Justice!
held that different treatment was acceptable "in so far as the difference m
pay between part-time work and full-time work is attributable to factors
which are objectively justified and are in no way related to anj
discrimination based on sex".
282
It is for the naional court, which has
jurisdiction to make findings of fact and interpret the naional legislalioi:
to determine whether a pay policy of a given employer or a staiilor}
provision which in fact affects women more than men can be objecli^e.;.
justified. The measures chosen in the policy or provision must corresponc
to a real need on the part of the undertaking or a necessary aim of a
naional social policy and be in proportion to the objective pursued (that s
to say, appropriate and indispensable in order to attain that objective).
Also in other circumstances in which a naional or a Community measure fe
couched in neutral terms but women are in fact disadvantaged, it must bei
examined whether the criterion employed is justified by objective factors.
independent of any discrimination on grounds of sex.
284
2 7 9
ECJ, Case 152/73 Sotgiu [1974] E.C.R. 153, para. 11. See also ECJ, Case 41/84 Firma [19**}
E.C.R. 1, para. 23; ECJ, Case 33/88 Allue [1989] E.C.R. 1591, paras 11-12.
2 8 0
See, e.g. ECJ, Case C-29/95 Pastoors and Trans-Cap [1997] E.C.R. 1-285, paras 17-18.
281
See also para. 5-063. For this and other instances of indirect discrimination, see. e
Hervey, "Justification for Indirect Sex Discrimination in Employment: Eur ope
Community and UK Law Compared" (1990) I.C.L.Q. 807-826; Adinolfi, "Indirea:
Discrimination on Grounds of Sex in Collective Labour Agreements" (1992) C.M.L.R-
637-645; Prechal, "Combating Indirect Discrimination in Community Law Context" (199JJB
L.I.E.I. 81-97.
2 8 2
ECJ, Case 96/80 Jenkins [1981] E.C.R. 911, paras 11-12.
2 8 3
See, by way of example, ECJ, Case 170/84 Bilka [1986] E.C.R. 1607, para. 36 (wages pof a
of an employer); ECJ, Case 171/88 Rinner Kuhn [1989] E.C.R. 2743, paras 14-15 (natioMK
provision). The Court of Justice held that there was a justified naional social po&s
objective in Case C-229/89 Commission v Belgium [1991] E.C.R. 1-2205, paras 19-26. Fx
the temporal effects of Art. 141 of the EC Treaty, see para. 17-049, infra.
!:< 'J (judgmenl of September 9, 2003), Casc C-25/02 Rinke, noi ycl reported, paras 36-41
P Reverse discrimination
I nt e r na i situations. The Community prohibition of discrimination cannot 5-068
be applied to purely internai matters of a Member State which have no
connection with a situation to which Community law applies. Accordingly, a
naional of a Member State may in principie rely on the provisions relating
to the free movement of goods, persons, services and capital only in so far
as he or she is not in a purely internai situation.
285
In such a situation, a
Member State may adopt measures which treat its own nationals less
favourably than nationals of other Member States. So a Member State may
obviously treat its nationals differently from nationals of other Member
States where it enacts legislation for vessels flying the naional flag outside
its territorial waters, since, under the rules of public internaional law, it
snay exercise its jurisdiction beyond territorial sea limits only over vessels
iying its flag.
286
In a purely domestic situation falling outside the field of
application of Community law, a Member State is also not debarred under
ibat law from exercising "reverse discrimination" by treating its own
sibjects or naional situations less favourably than nationals of other
JMember States or situations stemming from other Member States.
287
Any
fiscrimination which this would cause must then be dealt with within the
framework of the internai legal system of the State in question.
288
free movement. Such "reverse discrimination" is prohibited by Community 5-069
law where it threatens the aims of the Treaty. This will be the case in
Iractice where a situation cannot be regarded as purely internai from the
point of view of the Member State concerned. Thus, the fundamental
Sreedoms relating to establishment and the provision of services do not
. admit of interpretation:
"so as to exclude from the benefit of Community law a given Member
State's own nationals when the latter, owing to the fact that they have
lawfully resided on the territory of another Member State and have there
aftcquired a trade qualification which is recognised by provisions of
Community law, are, with regard to their State of origin, in a situation
** cf. the stricter requirement for a transborder situation for the application of the provisions
on free movement of persons and services (see paras 5-125 and 5-171, infra) with the
1
relatively ready acceptance of a transborder factor in applying the provisions on free
, -. movement of goods (see paras 5-088 and 5-100).
1
ECJ, Case C-379/92 Peralta [1994] E.C.R. 1-3453, para. 47.
:y
Aid., para. 27; ECJ, Case C-132/93 Steen [1994] E.C.R. 1-2715, paras 8-11. See also,
K iBcolaysen, "Inlnderdiskriminierung im Warenverkehr" (1991) EuR. 95-120; Miinnich,
H p t . 7 und Inlnderdiskriminierung" (1992) Z.f.RV. 92-100; Weyer, "Freier
-Wahrenverkehr, rein innerstaatliche Sachverhalte und umgekehrte Diskriminierung"
998) EuR. 435-461.
ECJ, Joined Cases C-45/96 and C-46/96 Uecker and Jacquet [1997] E.C.R. 1-3171, para. 23
' which makes it clear that the introduction of citizenship of the Union makes no difference
; to this position). See also Konig, "Das Problem der InlnderdiskriminierungAbschied
M Reinheitsgebot, Nachtbackverbot und Meisterpriifung?" (1993) A.o.R. 591-616.
137
SUBS1AJN i l Vtl 5L,Urc Uf i n c ^ WI VJ . I VI VJ I M
which may be assimilated to that of any other persons enjoying the rights
and liberties guaranteed by the Treaty".
289
When the Dutchman Knoors applied to the Netherlands authorities for as
authorisation to carry on the trade of a plumber in his own country on the
ground of the skills which he had acquired in Belgium, the Netherlands had
to recognise those skills pursuant to Directive 64/427 relating to attainmeot
of freedom of establishment and freedom to provide services.
290
There is no
question of there being a purely internai situation where a naional holds
professional diploma issued in another Member State, not even if tbC
1
diploma is not actually recognised by a provision of Community law.
291
Thijj
also applies to nationals wishing to use a diploma which does not affor
access to employment or self-employment, but nevertheless affordto.;
advantages for the exercise of a profession.
292
According to the Coim t*
Justice, there is no question of there being an internai situation where ,
naional can rely on a right to free movement against his own Memfaepte
State.
293
EU nationals, as citizens of the Union, may not be disadvant
simply because they have exercised their right to free movement,
example by studying in or moving to another Member State.
294
As a r
of the increasing range of circumstances in which persons may derive ri|
from Community law with regard to the Member State of which they.
nationals,
295
it will become more difficult for Member States to
reverse discrimination.
296
5-070 Circumvention. However, Community law does not allow of a person
free movement in order to evade the legislation of his Member State,
Member State may have a legitimate interest in preventing its nati
from wrongly evading the application of naional legislation as re;
training for a trade
297
or the manner of exercise of an activity, by meaas
facilities created under the Treaty.
298
289
ECJ, Case 115/78 Knoors [1979] E.C.R. 399, para. 24. See also para. 5-125, infra. :.
2 9 0
For Directive 64/427, see n.622 to para. 5-145, infra.
291
ECJ, Case C-61/89 Bouchoucha [1990] E.C.R. 1-3551, paras 11 and 14.
2 9 2
See, for the use of an LLM degree, ECJ, Case C-19/92 Kraus [1993] E.C.R. H
paras 17-18.
2 9 3
ECJ, Case C-378/97 Wijsenbeek [1999] E.C.R. 1-6207, paras 18-23.
2 9 4
ECJ, Case C-224/98 D'Hoop [2002] E.C.R. 1-6191, paras 27-35; ECJ Oudgmentof
29, 2004), Case C-224/02 Antero Pusa, not yet reported, para. 17. See Staples, ''**
omgekeerde discriminatie zijn langste tijd gehad?" (2002) N.T.E.R. 205-209.
2 9 5
See, with regard to the free movement of workers, ECJ, Case C-281/98 Angonex ,
E.C.R. 1-4139 (discussed in para. 5-125, supra).
2 9 6
See De Beys, "Le droit europeen est-il applicable aux situations purement inwra
propos des discriminations rebours dans le marche unique" (2001) J.T.D.E. 13
Papadopoulou, "Situations purement internes et droit communautaire: un ins
jurisprudentiel double fonction ou une arme double tranchant?" (2002) C.D.E. '
297
ECJ, Case 115/78 Knoors [1979] E.C.R. 399, para. 25. That was the case in E CJ
C-61/89 Bouchoucha [1990] E.C.R. 1-3551.
29K
ECJ, Case C-148/91 Veronica Omroep Organisatie [1993] E.C.R. 1-487, paras 12-i *j
Case C-23/93 TV10 [1994] E.C.R. 1-4795, paras 17-22, with a case note by Straes
Ooemans (1995) ColJ.E.L. 319-331; ECJ, Case C-212/97 Centros [1999] E.C.R.
1
prui 23-30.
t
138
II. THE COMMON/INTERNAL MARKET
A. ESTABLISHMENT OF A COMMON/INTERNAL MARKET
Common market. The establishment of a common market continues to be 5-071
pe Community's most important task. Although the Treaty does not define
Ke expression "common market", a number of provisions make reference
P it. Thus, the common market is mentioned as having to be progressively
tstablished during a specific transitional period,
299
after which its operation
m development is to be maintained.
300
To that end, all practices impeding
establishment of the common market are to be eliminated as far as
ible
301
and the Community may intervene to assist where necessary.
302
expression "common market" also helps to define the (geographical)
IgOpe of the Community rules.
303
The scope of the common market may be
" rred from the list of tasks set out in Art. 3 of the EC Treaty and the
?isions contained in Part Three of the EC Treaty. Problems in achieving
common market have led to the introduction of the concept of the
iernai market" to supplement that of the common market (EC Treaty,
I 14). The EU Constitution will replace the expression "common
t" by "internai market" throughout.
1. Scope of the common market
ination of obstacles to trade. The establishment of the common 5-072
feet includes first the elimination, as between Member States, of
as duties and quantitative restrictions on the import and export of
and of all other measures having equivalent effect (Art. 3(l )(a))
3 0 4
more generally, obstacles to the free movement of goods, persons,
lires and capital (Art. 3(l)(c), which refers in that connection to "an
market"). The Court of Justice has described the common market
i r-.olving "the elimination of all obstacles to intra-Community trade in
U to merge the naional markets into a single market bringing about
" ms as close as possible to those of a genuine internai market".
305
Ireaty breaks down the establishment of the common market into the
Siovement of goods (Part Three, Title I) and the free movement of
m EC Treaty, Art. 32 (2) and Art. 71(2).
%T. SC Treaty, Art. 3(l)(h); Art. 32(1) and (4); Art. 88(1); Art. 119(1), first subpara.; Art.
TBfc Art. 136, third para.; Art. 211; Art. 267; Art. 297 and Art. 308.
t EC Treaty, Art. 15, second para.; Art. 81(1); Art. 82, first para.; Art. 87(1), (2) and (3);
S
;
-sS<2) and (3) and Art. 134, third para.
a cC Treaty, Art. 94 and Art. 308.
I EC Treaty, Art. 81(1); Art. 82, first para.; Art. 84; Art. 96, first para.; Art. 296(l)(b)
lAr. 298, first para.
|* -suit of the simplification introduced by the Treaty of Amsterdam, Art. 3( I )(a) of the
no longer refers to the "elimination" but to the "prohibition" oi'uisloius dulics,
' -ave restrictions and measures having equivalent effect.
3p8se 15/81 Schul [1982] E.C.R. 1409, para. 33.
13*9