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EU Law

EU Law. Lecture 5 Sex Discrimination and Free Movement of Goods. Outcomes. 1. Apply in detail a structure to answering a problem question on sex discrimination 2. Apply in detail a structure to answering a problem question on free movement of goods. Sex discrimination problem question.

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EU Law

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  1. EU Law Lecture 5 Sex Discrimination and Free Movement of Goods

  2. Outcomes 1. Apply in detail a structure to answering a problem question on sex discrimination 2. Apply in detail a structure to answering a problem question on free movement of goods

  3. Sex discrimination problem question • Pay / treatment? • Direct/indirect discrimination? • Is justification possible? • Is law directly effective?

  4. Pay Article 157 TFEU Sex Equality Other conditions of Work Recast Directive/ Pregnancy Directive [National legislation: Equality Act 2010] (Recast Directive) [National legislation: Equality Act 2010] Discrimination Direct Indirect No Justification: but note:  Art 157(4) TFEU/ Art 3 Recast Directive  Art 14(2) Recast Directive Objective justification

  5. Pay Article 157 TFEU Kelly Question 2 (a)(i) Toilet duties Sex Equality Other conditions of Work Recast Directive/ Pregnancy Directive [National legislation: Equality Act 2010] (Recast Directive) [National legislation: Equality Act 2010] Discrimination Direct Indirect No Justification: but note:  Art 157(4) TFEU/ Art 3 Recast Directive  Art 14(2) Recast Directive Objective justification

  6. Pay Article 157 TFEU Kelly: Question 2 (a)(ii) Holiday Sex Equality Other conditions of Work Recast Directive/ Pregnancy Directive [National legislation: Equality Act 2010] (Recast Directive) [National legislation: Equality Act 2010] Discrimination Direct Indirect No Justification: but note:  Art 157(4) TFEU/ Art 3 Recast Directive  Art 14(2) Recast Directive Objective justification

  7. Pay Article 157 TFEU Angela Question 2 (b) season ticket loan Sex Equality Other conditions of Work Recast Directive/ Pregnancy Directive [National legislation: Equality Act 2010] (Recast Directive) [National legislation: Equality Act 2010] Discrimination Direct Indirect No Justification: but note:  Art 157(4) TFEU/ Art 3 Recast Directive  Art 14(2) Recast Directive Objective justification

  8. Objective justification of indirect discrimination Article 2(1)(b) Recast Directive Complainant has burden to establish that: - more persons of the relevant sex are adversely affected (e.g. more women than men are adversely affected, or vice versa) Article 19 Recast Directive If it is a state measure e.g. a national law If it is a measure taken by an employer against an employee Burden now on stateto show that • law reflects a legitimate aim of social policy; • aim is unrelated to any discrimination based on sex; and • law is suitable means for attaining that aim. (Rinner-Kϋhn/Seymour Smith) Burden now on employer to show that measure • corresponds to a real need; • is appropriate to achieving the objective pursued (ie suitable); and • is necessary to that objective. (Bilka-Kaufhaus) No indirect discrimination.

  9. Activity- continuation • Kelly discovers that Sparkles are offering a season ticket loan to all full time cleaners working anti-social hours • UK legislation requires employers of cleaning firms to offer free season ticket loans to full time staff working anti social hours • Difficult to attract full time staff to the cleaning industry which is relatively low paid. The reason for not extending this benefit to part time staff is that it would put a disproportionate burden on employers. • All full time cleaners are men and majority of part time cleaners are women

  10. ART 34/Goods State Measure? QR (Geddo) / MEQR(Dassonville)? Selling Arrangement (law on how, where, when)?(Keck) OR YES YES 2ndCassisprinciple: Mut Rec Presumption If IA, not an MEQR so no Art 34 breach, UNLESSpractical effect is to hinder imports, then = MEQR (Gourmet) Distinctly Applicable Indistinctly Applicable Derogation = • Art 36 List, AND • 1stCassis principle: Rule of Reason • Proportionality Derogation = • Art 36 List ONLY • Proportionality

  11. Activity – Oaks Furniture Ltd (OF) • OF wants to export reproduction furniture to Sweden and Germany • Sweden bans sale of reproduction furniture in antique shops – to prevent public mistakenly buying it instead of antiques • Germany imposes random checks on imported furniture (causing delay and expense) to ensure properly treated and dried out to prevent fungal infection

  12. Article 36 and Cassis exceptions Article 36 • Public morality • Public policy • Public security • Protection of health; plants, animals, people • Protection of National treasures • Protection of industrial or commercial property Must not be disguised restriction on trade Cassis • Effectiveness of fiscal supervision • Protection of public health • Fairness of commercial transactions • Defence of the consumer • Protection of culture • Protection of environment • ……………

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