EU Law Part 1: Advise Elena and Andro on the arguments they could make under EU law
The requirement by Sonisa for Elena to reapply for her job position following the streamlining of the company’s operation under the new management and the subsequent reduction in her salary by £5,000 while her British colleagues did not experience a salary cut highlights a case of direct discrimination against a European Union citizen on the ground of nationality. Under EU law, direct discrimination occurs when a non-national of EU member states receive or experiences unfavourable treatment compared with the nationals of the EU member state. The direct discriminatory treatment by Sonisa is evidenced by the firm’s decision to fire her and the firm’s refusal to issue her redundancy payments after she declined to reapply for the same job position while her British colleagues were assured of their job positions.
Article 18 of the Treaty on the Functioning of the European Union (TFEU) restricts EU member states from engaging in practices that may be considered discriminatory on the ground of nationality towards citizens of EU member states.[1] One of the classic rulings on direct discrimination in the EU relates to the case of Commission v France[2]. Given this, Elena should consider suing Sonisa firm on the ground of discrimination contrary to Article 18 of the TFEU. In her case, Elena should cite the case of Wood v Fonds. [3], in which the court ruled against discrimination against EU citizens on the ground of their nationality. Given this, Elena was, therefore, eligible to receive equal salary similar to her British colleagues.[4] The European Parliament has formulated a legislative procedure that stipulates that all EU member states are obliged to ensure that all EU citizens are provided equal treatment and access to opportunities in regards to employment. As such, all parties should be provided fair treatment in regards to pay and value of the work done.[5]
Elena has a right to seek justice under the EU law regarding redundancy payments. Additionally, she has a right to seek equal treatment in regards to accessing social benefits following her dismissal from employment and the subsequent difficulty in successfully finding a way to sustain her livelihood. Article 7(2) of Regulation 1612/68 stipulates that all EU employees and their families should be subjected to equal treatment in regards to accessing social welfare benefits as their national counterparts.[6] Any EU member state that discriminates against an EU citizen based on their nationality will have committed illegality within the scope of the EU Treaty as held by the ruling in the case of Terhoeve v Inspecteur.[7]
Therefore, Elena should consider applying for financial benefits to sustain her and her nephew under the British social welfare program as provided for under the EU law as she continues searching for a job. The ruling in the case of Martinez v Freistaat[8] held that non-economically active EU citizens legally living in an EU member state are eligible for accessing equal treatment with respect to social benefits.[9] Given this, it was illegal for Elena to be denied a grant on the ground of nationality even though she voluntarily made herself redundant.
In arguing her case, Elena should cite Articles 20 and 21 of the TFEU, which outlines the rights of economically inactive and the economically challenged EU citizens. In addition to the above aspects, Elena should also consider suing John Heriott, for discriminating against her based on nationality in accessing a grant. In her argument, Elena should affirm that John Heriott acted in contravention to Article 45 TFEU in refusing to grant her employment.[10] In the case Lebon[11], the court held that in line with the principle of free movement, which is enshrined in the EU law, EU citizens have a right to access employment opportunities within other EU member states labour market. Thus, Heriott discriminated against Elena on the ground that she was not a British national.
Given his Montenegro nationality, which is an EU member state, Andro should consider challenging the Home Office threats on deporting him on the ground that he had involved himself in antisocial behaviour. The ECJ ruling in the case of Orfanopoulos v Land Baden-Wurttemberg[12] held that it is illegal for a member state to expel a European Union citizen from its national borders based on reasons that are preventative, for example, on issues that can be addressed through criminal conviction. The Home Office must, therefore, examine whether Andro is a threat to the UK’s public security and his past criminal convictions before deciding to deport him.
Conclusion
The cases study highlights incidents of direct and indirect discrimination contrary to EU law. In line with the principle of free movement, EU citizens working or living in other EU member state have rights similar to those of the host countries nationals. As such, EU countries hosting non-national EU citizens should ensure that they observe the principle of non-discrimination. The non-national EU citizens should be treated equally and fairly. Given this, Elena and Andro have a legal ground to successfully fight for their rights under the concept of free movement, which is enshrined in the EU law. The two parties should not be discriminated against based on their nationality with respect to different aspects such as pay, employment, and access to the criminal justice system. By taking into account the advice provided, the two parties have an opportunity to continue living and working in Britain while receiving equal treatment similar to their British nationals.
[1] Niamh Shulbhne. The coherence of EU free movement law; constitutional responsibility (Oxford:
Oxford University Press, 2013) 143.
[2] Commission v France (Case 167/73) [1974] ECR 359
[3] Wood v Fonds de Garantie des Victimes des Actes de Terrorisme et d’Autres Infractions (C-
164/07) [2008] ECR I-4143; [2008] 3 CMLR 11 (p 265).
[4] David Edward and Robert Lane. Edward and Lane on European Union law (Edward Elgar Publishing Limited 2013) 422.
[5] Paul Craig and Grainne Burca. EU Law; Text, Cases, and Materials (Oxford University Press 2011) 858.
[6] Jo Shaw, Jo Hunt and Chloe Wallace. Equality Law and Policy (Cengage 2019) 303.
[7] Terhoeve v Inspecteur van de Belastingdienst Particulieren/Ondernemingen Buitenland [1999]
ECR I-345
[8] Maria Martinez Sala v Freistaat Bayern [1998] ECR I-2691.
[9] Paul Craig and Grainne Burca. EU Law; Text, Cases and Materials (Oxford University
Press 2015) 872.
[10] Phil Sypis. The Judiciary, the Legislature and the EU Internal Market (Cambridge
University Press 2012) 345.
[11] Case 316/85 Lebon [1987] ECR 281.
[12] Orfanopoulos v Land Baden-Wurttemberg [2004] ECR I-5257.