Remedies and Sanctions in Discrimination Cases

13 February 2012 – ERA Academy of European Law

Me François Moyse – Barrister Luxembourg

DSM Di Stefano Moyse

www.dsmlegal.com

SUMMARY

I. General framework

II. Overview of remedies and sanctions

III. Remedies

IV. Sanctions

V. Some case-law

I. GENERAL FRAMEWORK FOR EQUAL

TREATMENT BETWEEN MEN AND WOMEN (reminder)

Article 157 TFEU (former 141 TEEC):

1. Each Member State shall ensure that the principle of equal pay for male

and female workers for equal work or work of equal value is applied.

2. For the purpose of this Article, ‘pay’ means the ordinary basic or minimum wage or salary and any other consideration, whether in cash or in kind, which the worker receives directly or indirectly, in respect of his employment, from his employer.

Equal pay without discrimination based on sex means: a) that pay for the same work at piece rates shall be calculated on the basis

of the same unit of measurement; b) that pay for work at time rates shall be the same for the same job. 3. The European Parliament and the Council, acting in accordance with the

ordinary legislative procedure, and after consulting the Economic and Social Committee, shall adopt measures to ensure the application of the principle of equal opportunities and equal treatment of men and women in matters of employment and occupation, including the principle of equal pay for equal work or work of equal value.

4. With a view to ensuring full equality in practice between men and women in

working life, the principle of equal treatment shall not prevent any Member State from maintaining or adopting measures providing for specific advantages in order to make it easier for the underrepresented sex to pursue a vocational activity or to prevent or compensate for disadvantages in professional careers.

• Article 47 of the Charter of Fundamental Rights = Right to an effective remedy and to access to an impartial tribunal

‘Everyone whose rights and freedoms guaranteed by the law of the Union are violated has the right to an effective remedy before a tribunal in compliance with the conditions laid down

in this Article.’ No reference to gender discrimination in Directives 2000/43

(“Race”) and 2000/78 (Employment) • Reference texts: - On employment and occupation (Directive 2006/54/EC – Recast) - On access to goods and services (Directive 2004/113/EC)

II. OVERVIEW OF REMEDIES AND SANCTIONS

• Similar provisions in the Directives on equal treatment for men and women

• Recast Directive 2006/54/EC of 5 July 2006 on the implementation of the principle of equal opportunities and equal treatment of men and women in matters of employment and occupation

- Art. 17: defence of rights: Member States ensure access to conciliation procedures and judicial procedures

- Art. 18: compensation and reparation: Member States shall introduce necessary measures

- Art. 19: mechanism for shifting the burden of proof (to recall)

- Art. 25: sanctions

• Directive 2004/113/EC of 13 December 2004 implementing the principle of equal treatment between men and women in the access to and supply of goods and services

- Art. 8 (1): defence of rights: Member States ensure access to conciliation procedures and judicial procedures

⁻ Art. 8 (2): compensation and reparation: Member States shall introduce necessary measures

- Art. 9: mechanism for shifting the burden of proof (to recall)

- Art. 14: sanctions

III. REMEDIES

- Conciliation - Mediation A way of settling legal disputes by involving a third party to facilitate

discussion between the parties Example, in Luxembourg: Extra-judicial or voluntary mediation - Creation of the Centre for Equal Treatment pursuant to Article 20 of Recast

Directive 2006/54/EC and Article 12 of Directive 2004/113/EC (Section 9 of the Act of 28/11/2006)

Purpose: - to record victims’ complaints - to promote, analyse and monitor equal treatment - Inspection of the workplace and mines also plays a part. Judicial mediation

(new law enacted late January 2012, 21 sections of the Civil Code)

Procedural remedy (courts)

- Article 17 of the Recast Directive and Article 8 of Directive 2004/113/EC implement this principle for equal treatment between men and women = defence of rights;

- Assistance by associations and organisations (Art. 17 (2) Recast Dir.; Art. 8 (3) Dir. 2004/113): acting on behalf of or in support of plaintiff;

- The concept of access to judicial process has been defined in the case- law, in particular:

C-185/97; Belinda Jane Coote / Granada Hospitality Ltd;

C-326/96 ; B.S. Levez / TH Jennings

C-222/84; Johnston

IV. SANCTIONS FOR DISCRIMINATION

General principle of subsidiarity:

MS set out a regime of applicable sanctions:

- Article 25 – Recast Directive

- Article 14 – Directive 2004/113/EC

Sanctions must be effective, proportionate and deterrent.

Cf: Van Colson C-14/83 judgment (deterrent effect);

Examples: compensation (damages for loss and suffering,

publication, publicity, criminal sanctions, preventive orders…

Similarly, MS must introduce the necessary measures to prevent victimisation.

- Article 24 Recast Directive

- Article 10 Directive 2004/113/EC

Example, in Luxembourg:

Sanctions set down in Sections L 251-1 ff. of the Labour Code.

V. CJEU CASE-LAW

CJEU judgment of 01/03/2011 in Test-Achats ASBL, C-236/09

On actuarial factors – The ruling renders Art. 5(2) of Directive

2004/113/EC invalid with effect from 21 December 2012:

“Article 5(2) of Council Directive 2004/113/EC of 13 December 2004 implementing the principle of equal treatment between men and women in the access to and supply of goods and services is invalid with effect from 21 December 2012.”

V. CJEU CASE-LAW

Article 5(2) Directive 2004/113/EC:

“Notwithstanding paragraph 1, Member States may decide before 21 December 2007 to permit proportionate differences in individuals' premiums and benefits where the use of sex is a determining factor in the assessment of risk based on relevant and accurate actuarial and statistical data. The Member States concerned shall inform the Commission and ensure that accurate data relevant to the use of sex as a determining actuarial factor are compiled, published and regularly updated. These Member States shall review their decision five years after 21 December 2007, taking into account the Commission report referred to in Article 16, and shall forward the results of this review to the Commission.”

Jonkman judgment of 21 June 2007 in C-231/06

“Where discrimination infringing Community law has been found, for as

long as measures reinstating equal treatment have not been adopted, the national court must set aside any discriminatory provision of national law, without having to request or await its prior removal by the legislature, and apply to members of the disadvantaged group the same arrangements as those enjoyed by the persons in the other category.”

Belinda Coote judgment of 22 September 1998 in C-185/97:

With regard to Directive 76/207, assimilated into the Recast Directive, point 24 reads:

“The principle of effective judicial control laid down in Article 6 of the Directive would be deprived of an essential part of its effectiveness if the protection which it provides did not cover measures which, as in the main proceedings in this case, an employer might take as a reaction to legal proceedings brought by an employee with the aim of enforcing compliance with the principle of equal treatment. Fear of such measures, where no legal remedy is available against them, might deter workers who considered themselves the victims of discrimination from pursuing their claims by judicial process, and would consequently be liable seriously to jeopardise implementation of the aim pursued by the Directive.”

Court of Appeal in Luxembourg on 31 March 2011

“In the light of the judgment by the Court of Justice of the European

Communities (Case C-63/08 of 29/10/2009), the Court rules that Section L.337-1 of the Labour Code, inasmuch as it denies a pregnant employee who has been dismissed during her pregnancy the option to bring an action for damages whereas such an action is available to any other employee who has been dismissed, constitutes less favourable treatment of a woman related to pregnancy and is thus incompatible with the provisions of Article 2 (2) of Council Directive 76/207/EEC of 9 February 1976. It follows that the request by H. to be awarded compensation for the damage she suffered due to the dismissal she describes as wrongful must be declared admissible”.

Article 2 (2) of Directive 76/207/EEC:

“This Directive shall be without prejudice to the right of Member States to exclude from its field of application those occupational activities and, where appropriate, the training leading thereto, for which, by reason of their nature or the context in which they are carried out, the sex of the worker constitutes a determining factor.”