EU law – Page 4 – University of Bristol Law School Blog

Some thoughts on European and national non-discrimination law and Brexit

Posted on May 30, 2016March 9, 2018 by legalresearch

By Dr Jule Mulder, Lecturer in Law (University of Bristol Law School).*

European non-discrimination law is a great example of how legal ideas travel around the globe and are modified and improved in the process. As well demonstrated by Fredman[1] and Schiek,[2] non-discrimination law did not originate in Europe nor can the European influence be negated. For example, the concept of indirect discrimination can be traced back to international law and was also pioneered in the US case of Griggs v Duke Power,[3] which challenged under the Civil Rights Act 1964 employment practices that required High School diplomas in order to access specific jobs. This US legal development then inspired European Common Law jurisdictions—most notably the UK—to incorporate similar concepts in their national law (see e.g. Sex Discrimination Act 1975 and Race Relations Act 1976), and the concept of indirect discrimination finally reached the EU in the early 1980s when the Court of Justice of the European Union (CJEU) explicitly referred to the Griggs in its Jenkins Judgment,[4] a case which also originated in the UK.

However, this initial influence from the UK and other common law jurisdictions did not halt in this development. Rather, what started as a relatively insignificant equal pay provision in the Treaty of Rome (Article 119 EEC) and a political compromise between Germany and France,[5] has developed into a large equality framework protecting the characteristics of sex, race and ethnic origin, religion and belief, age, disability, and sexual orientation (e.g. Directives 2000/43, 2000/78 and 2006/64) and goes beyond employment discrimination by also tackling sex and race discrimination within the access to and supply of goods and services (Directives 2000/43 and 2000/113). The 2000 directives expanding the personal scope of EU non-discrimination law were particularly affected by Anglo-Dutch intellectual thought and influence,[6] as jurisdictions that had most significant experience with non-discrimination law covering a wide number of protected characteristics. These new directives, alongside the CJEU interpretation of all the directives and equal pay provision (now Article 157 TFEU), then in turn influenced the law of the Member States including the UK legal framework. (more…)

Brexit and Worker Rights

Posted on May 27, 2016May 26, 2016 by legalresearch

By Prof Michael Ford QC, Professor of Law (University of Bristol Law School).

It is now pretty well-known that most of the employment rights in the UK are guaranteed by EU law—the principal exceptions are unfair dismissal and the national minimum wage —as I explained in a recent advice for the TUC. UK legislation on race discrimination, sex discrimination, equal pay and disability discrimination may have pre-dated EU Directives in these areas, but EU law led to protection against other forms of discrimination, such as detrimental treatment owing to age, sexual orientation and religion and belief. Over the years EU law has greatly supplemented or overwritten the domestic regime, almost always in favour of workers’ rights – removing limits on damages, recognising that pregnancy discrimination did not need a comparator, changing rules on the burden of proof, allowing equal pay claims for work of equal value, protecting against harassment and post-employment victimisation. I could go on.

Now extending far beyond discrimination, the EU-guaranteed rights include almost all the working time protections, including paid annual leave and limits on working hours; the protection of agency, fixed-term and part-time workers; rights on the transfers of an undertaking (extremely significant in a world dominated by out-sourcing); many rights to information and collective consultation; the most important health and safety regulations; the right to a written statement of terms of employment; protections in insolvency derived from the EU Insolvency Directive, which led to important extensions to the state guarantee of pension benefits and protection of other claims where the employer is insolvent (no doubt to be in play in relation to British Home Stores); and EU data protection law, the driving force behind the Information Commissioner’s Employment Practices Code, providing some controls over the monitoring and surveillance of workers. (more…)

The EU, Brexit and nature conservation law

Posted on May 16, 2016May 16, 2016 by legalresearch

By Dr Margherita Pieraccini, Lecturer in Law (University of Bristol Law School).*

The EU plays a fundamental role in shaping the environmental law regimes of its Member States and that of the UK is no exception. A significant proportion of current domestic environmental law derives from EU Regulations (that automatically become part of English law) and EU Directives (that are implemented through national legislation).

Nature conservation law, i.e. the legal regime used to protect environmentally significant habitats and species, is a case in point and the focus of this blog. Conserving nature is key not only from a purely biodiversity standpoint but also from an ‘ecosystem services’ perspective. Ecosystem services are the benefits nature brings to the environment and to people, including supporting services (e.g. nutrient cycling), provisioning services (e.g. food), regulating services (e.g. carbon capture) and cultural services (e.g. recreation). (more…)

The Scope for Collective Bargaining in Posting and Procurement––What Might Come From Recent Court of Justice Case Law and the Proposed Reform of the Posting of Workers Directive?

Posted on April 6, 2016March 22, 2016 by legalresearch

By Prof Tonia Novitz, Professor of Labour Law (University of Bristol Law School).

Modern Times, starring and directed by Charlie Chaplin

Workers posted from one European Union (EU) Member State to another would seem to be in need of urgent social protection. Recent evidence produced by the European Commission indicates that, between 2010 and 2014, the number of workers posted from one EU State to another increased by almost 49% (in total approximately 1.9 million workers). More importantly, posted workers tend to earn substantially less than local workers, with reports of income of less than 50% than that usually paid in a given place for the same job. Further, there are indications that, in certain sectors, such as the construction industry, posted workers may be at greater risk of harm through violation of health and safety standards. The reasons may seem obvious, since the language, laws and legal system of a host State are likely to be foreign to posted workers who can also be left without effective local trade union representation.

In the Laval case (C-341/05), the capacity for minimum wages (and other work-related benefits) to be set for posted workers by collective bargaining by trade unions in the host State was cast into doubt. Collective bargaining (and the collective action that generated such bargaining) was considered to be too unpredictable in terms of effect and outcome, creating an unjustifiable barrier for the free movement of service providers. It was only in the case of ‘social dumping’, a nebulous term of uncertain reach, that collective action aimed at conclusion of a collective agreement could be permitted in respect of a particular group of posted workers. Instead, the Court relied on Article 3(1) of the Posting of Workers Directive 96/71/EC (PWD), which envisages only the setting of minimum standards in relation to certain matters. This may be done by ‘law, regulation or administrative provision’ but also by ‘collective agreements or arbitration awards which have been declared universally applicable…’ in accordance with Article 3(8) insofar as they concern’ activities listed in the Annex largely pertaining to the construction industry. EU States may also take the option to give such legal effect to universally applicable collective agreements in other sectors in accordance with Article 3(10). Through this prescriptive treatment of the appropriate limits of collective bargaining, what had been seen by some as a ‘floor of rights’ in PWD came to be a ‘ceiling’. If the national measures taken in respect of protection of the rights of posted workers did not fit within the ambit of the precise terms set out in the PWD, then they were impermissible, despite the apparent scope in Article 3(7) for a more generous interpretation of the Directive ‘more favourable to workers’. (more…)

The Legal Status of the Agreement of the Heads of State or Government (re Brexit)

Posted on March 9, 2016March 22, 2016 by legalresearch

By Dr Phil Syrpis, Reader in Law (University of Bristol Law School)

On 19 February 2016, sometime well after breakfast, the members of the European Council reached an agreement concerning a new settlement for the United Kingdom within the EU. The Government was quick to proclaim that the UK’s ‘special status’ in ‘a reformed European Union’ amounts to ‘the best of both worlds’. David Cameron’s ‘hard-headed assessment’ is that the UK will be stronger, safer and better off by remaining inside this reformed European Union, and so he is recommending that the British people vote to ‘remain’ in the in-out referendum on 23 June.

The substance of the reforms, which focus on economic governance, competitiveness, sovereignty, and welfare and free movement, is and will continue to be much debated. This contribution instead focuses on a more technical question – the legal status of the deal – a subject which is now said to be creating ‘open warfare’ in the Tory party. (more…)