BEHAVIORS THAT CAN BE DEFINED AS REAL DISCRIMINATION

The European Court of Justice has issued the following ruling on discrimination against EU citizens in the workplace. "Under Article 48 of the Treaty, the free movement of workers within the Community entails the abolition of any discrimination based on nationality between workers of the Member States as regards employment, remuneration and other conditions of work. It should be noted, first of all, that the principle of non-discrimination set out in Article 48 of the Treaty is formulated in general terms and is not addressed specifically to Member States.
The Court thus considered that the prohibition of discrimination based on nationality concerns not only acts of public authority but also rules of any kind intended to collectively regulate paid employment and the provision of services (see judgment of 12 December 1974, Case 36/74, Walrave and Koch, ECR 1405, paragraph 17).
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    The Court has, in fact, considered that the abolition of obstacles to the free movement of persons among Member States would be compromised if the elimination of limitations established by state legislation could be neutralized by obstacles arising from the exercise of the legal autonomy of non-public associations and bodies (see the aforementioned judgment in Walrave and Koch, paragraph 18, and the judgment of 15 December 1995 in Case C-415/93, Bosman and Others, ECR I-4921, paragraph 83). The Court has emphasized that, since working conditions in the various Member States are sometimes governed by legislative or regulatory provisions, sometimes by contracts and other documents concluded or issued by private individuals, limiting the prohibition of discrimination based on nationality to acts of public authorities would risk creating disparities in its application (see the aforementioned judgments in Walrave and Koch, paragraph 19, and Bosman and Others, paragraph 84).

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The Court has also considered that the fact that certain provisions of the Treaty are formally addressed to the Member States does not preclude, at the same time, rights being attributed to individuals interested in compliance with the obligations thus specified (see judgment of 8 April 1976, Case 43/75, Defrenne, ECR p. 455, paragraph 31).

The Court thus concluded, with regard to a Treaty provision having a mandatory nature, that the prohibition of discrimination equally concerns all contracts which collectively regulate subordinate work, as well as contracts between private individuals (see the aforementioned Defrenne judgment, paragraph 39).

This consideration must, a fortiori, apply to Article 48 of the Treaty, which enshrines a fundamental freedom and constitutes a specific application of the general prohibition of discrimination set out in Article 6 of the EC Treaty (now, following amendment, Article 12 EC). In this regard, it aims to ensure, like Article 119 of the EC Treaty (Articles 117-120 of the EC Treaty have been replaced by Articles 136 EC - 143 EC), non-discriminatory treatment in the labour market. It must therefore be considered that the prohibition of discrimination on grounds of nationality, set out in Article 48 of the Treaty, also applies to private individuals.

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FAQ

Detailed questions for each section designed to answer the most common doubts of potential clients of Studio Lanzinger.

  • What constitutes employment discrimination?

    Any derogatory treatment based on gender, age, sexual orientation, religion, ethnicity, disability, or political opinion.

  • Is there a difference between direct and indirect discrimination?

    Direct discrimination explicitly affects a category; indirect discrimination occurs when a seemingly neutral rule actually disadvantages a particular group.

  • What can I do if I am discriminated against because of maternity/paternity leave?

    The law provides very strong protections. It is possible to appeal to the court to stop the behavior and obtain compensation.

  • How do you prove discrimination?

    The law provides assistance to the employee: it is sufficient to provide factual and repeated evidence that suggests discrimination; the employer will then have to prove that it did not occur.

  • Is wage discrimination between men and women legitimate?

    Absolutely not. For equal roles and seniority, pay should be equal.

  • What are the legal remedies?

    The judge may order the cessation of discriminatory behavior, the removal of its effects, and compensation for non-pecuniary damages.