In the framework of the Gender Equality Week, the SEDE Subcommittee will hold on 29 October 2020 an exchange of views on the 20th Anniversary of UNSC Resolution 1325 on Women, Peace and Security (WPS) including a focus on women in CSDP. The emphasis will be on progress achieved in ensuring full participation of women in peace processes around the world. Members will also assess additional steps that need to be taken to further enhance the role of women in all phases of peacebuilding, while increasing in particular the number of women taking part in the decision-making process. The debate will also include a focus on women in CSDP missions/operations and actions taken by the EU and its Member States to fully implement UNSCR 1325 on WPS.
ECJ’s interpretation of Community law must be useful to the national court
It should be noted, at the outset, that Article 234 EC does not empower the Court to apply rules of Community law to a particular case, but only to rule on the interpretation of the EC Treaty and of acts adopted by European Community institutions (see, inter alia, Case 100/63 van der Veen [1964] ECR 565, 572, and Case C‑203/99 Veedfald [2001] ECR I‑3569, paragraph 31). The Court may, however, in the framework of the judicial cooperation provided for by that article and on the basis of the material presented to it, provide the national court with an interpretation of Community law which may be useful to it in assessing the effects of one or other of its provisions (Case 20/87 Gauchard [1987] ECR 4879, paragraph 5, and Joined Cases C‑515/99, C‑519/99 to C‑524/99 and C‑526/99 to C‑540/99 Reisch and Others [2002] ECR I‑2157, paragraph 22). (C-54/07, par.19)
Public statements that constitute direct discrimination; an identification of the victim is not required
Nevertheless, it cannot be inferred from (…) that the lack of an identifiable complainant leads to the conclusion that there is no direct discrimination within the meaning of Directive 2000/43. The aim of that directive, as stated in recital 8 of its preamble, is ‘to foster conditions for a socially inclusive labour market’. For that purpose, Article 3(1)(a) states that the directive covers, inter alia, selection criteria and recruitment conditions. (C-54/07, par.23)
The fact that an employer declares publicly that it will not recruit employees of a certain ethnic or racial origin, something which is clearly likely to strongly dissuade certain candidates from submitting their candidature and, accordingly, to hinder their access to the labour market, constitutes direct discrimination in respect of recruitment within the meaning of Directive 2000/43. The existence of such direct discrimination is not dependant on the identification of a complainant who claims to have been the victim. (C-54/07, par.25)
Distinguishing direct discrimination (the conceptual requirement) from the legal procedures (the practical minimum) implies a space for Member States to introduce higher protection in that regard.
The question of what constitutes direct discrimination within the meaning of Directive 2000/43 must be distinguished from that of the legal procedures provided for in Article 7 of that directive for a finding of failure to comply with the principle of equal treatment and the imposition of sanctions in that regard. Those legal procedures must, in accordance with the provisions of that article, be available to persons who consider that they have suffered discrimination. However, the requirements of Article 7 of Directive 2000/43 are, as stated in Article 6 thereof, only minimum requirements and the Directive does not preclude Member States from introducing or maintaining provisions which are more favourable to the protection of the principle of equal treatment. (C-54/07, par.26)
It is up to the national court to assess according to the national legislation, whether an actio popularis in the name of employment equality is permitted.
Consequently, Article 7 of Directive 2000/43 does not preclude Member States from laying down, in their national legislation, the right for associations with a legitimate interest in ensuring compliance with that directive, or for the body or bodies designated pursuant to Article 13 thereof, to bring legal or administrative proceedings to enforce the obligations resulting therefrom without acting in the name of a specific complainant or in the absence of an identifiable complainant. It is, however, solely for the national court to assess whether national legislation allows such a possibility. (C-54/07, par.27)
The presumption of Discrimination; the defendant carries the burden of proof
Article 8 of Directive 2000/43 states in that regard that, where there are facts from which it may be presumed that there has been direct or indirect discrimination, it is for the defendant to prove that there has been no breach of the principle of equal treatment. The precondition of the obligation to adduce evidence in rebuttal which thus arises for the alleged perpetrator of the discrimination is a simple finding that A PRESUMPTION OF DISCRIMINATION has arisen on the basis of established facts. (C-54/07, par.30)
Public statements give rise to the presumption
Statements by which an employer publicly lets it be known that, under its recruitment policy, it will not recruit any employees of a certain ethnic or racial origin may constitute facts of such a nature as to give rise to a presumption of a discriminatory recruitment policy. (C-54/07, par.31)
The content of the adduced evidence
It is, thus, for that employer to adduce evidence that it has not breached the principle of equal treatment, which it can do, inter alia, by showing that the actual recruitment practice of the undertaking does not correspond to those statements. (C-54/07, par.32)
The national court will assess the sufficiency of the evidence
It is for the national court to verify that the facts alleged against that employer are established and to assess the sufficiency of the evidence which the employer adduces in support of its contentions that it has not breached the principle of equal treatment. (C-54/07, par.33)
The scope of the sanctions
Article 15 of Directive 2000/43 confers on Member States responsibility for determining the rules on sanctions for breaches of national provisions adopted pursuant to that directive. Article 15 specifies that those sanctions must be effective, proportionate and dissuasive and that they may comprise the payment of compensation to the victim. (C-54/07, par.36)
The scope of discretion granted to Member States; de minimis EU requirements
Article 15 of Directive 2000/43 thus imposes on Member States the obligation to introduce into their national legal systems measures which are sufficiently effective to achieve the aim of that directive and to ensure that they may be effectively relied upon before the national courts in order that judicial protection will be real and effective. Directive 2000/43 does not, however, prescribe a specific sanction, but leaves Member States free to choose between the different solutions suitable for achieving its objective. (C-54/07, par.37)
The form of the sanctions
If it appears appropriate to the situation at issue in the main proceedings, those sanctions may, where necessary, include a finding of discrimination by the court or the competent administrative authority in conjunction with an adequate level of publicity, the cost of which is to be borne by the defendant. They may also take the form of a prohibitory injunction, in accordance with the rules of national law, ordering the employer to cease the discriminatory practice, and, where appropriate, a fine. They may, moreover, take the form of the award of damages to the body bringing the proceedings. (C-54/07, par.39)
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A couple of notable points from the agreed choreography for the final phase:
The two sides have now agreed to work on the basis of legal texts. This is the single most important development in mths. It's only by going through the texts line-by-line (1/n)https://t.co/tAv8ysitdu https://t.co/ymUvk616Xo
Some future gazing regarding #Brexit. Two possible scenarios for consideration, and under both, Brexit just doesn’t go away.
— Sydney Nash (@NashSGC) October 21, 2020The post It’s all just words appeared first on Ideas on Europe.
Could the proper interpretation of an EU Directive be prohibiting a national rule from granting a general authorization?
By its two questions, which can be examined together, the national court is asking whether Directive 78/687 must be interpreted as precluding a national rule that grants a general authorisation to doctors who have not received the training required by Article 1 of that directive to carry out the activities of a dental practitioner and whether the answer to that question depends on the title under which those activities are practised. (C-35/02, par.20)
The Court’s reply
It follows from all the foregoing that the answer to the question referred must be that Directive 78/687, properly construed, precludes a national rule containing a general authorisation for doctors who have not completed the training required by Article 1 of that directive to carry out the activities of a dental practitioner, irrespective of the title under which those activities are carried out. (C-35/02, par.38)
The proper interpretation; should be a grammatical one.
At the outset, it should be recalled that Article 1(1) of Directive 78/687 provides that to be entitled to practice dentistry under one of the titles referred to in Article 1 of Directive 78/686, a dental practitioner must hold a diploma, certificate or other evidence of formal qualifications referred to in Article 3 of Directive 78/686. (C-35/02, par.24)
Only derogations expressly provided for in the EC Treaty or in the relevant directives are allowed (see Case C-40/93 Commission v Italy, cited above, paragraph 23). In that regard, three types of derogation are provided for, namely, first, the derogation set out in Article 7 of Directive 78/686, second, the one referred to in Articles 19, 19a and 19b of that directive and, finally, the derogation mentioned in Article 1(4) of Directive 78/687 (see Case C-40/93 Commission v Italy, paragraph 21). (C-35/02, par.25)
Article 1(4) of the Directive 78/687 applies only to the recognition of diplomas, certificates or other evidence of formal qualifications obtained in a non-member State (see Case C-40/93 Commission v Italy, paragraph 22). Article 7 of Directive 78/686 is applicable only to nationals who hold diplomas, certificates or other qualifications issued by the Member States before Directive 78/687 came into effect, in other words before 28 January 1980. Articles 19, 19a and 19b of Directive 78/686 concern only the transitional provisions applicable to people who received or embarked on their dental training in Italy, Spain or Austria respectively, under a system prior to the one in place as a result of the entry into force of those directives in those Member States. (C-35/02, par.26)
Paragraph 1(1) of the ZHG, which grants a general authorisation, from 28 January 1980 onwards, for doctors to practice dentistry on a permanent basis without completing the dental training required by Article 1 of Directive 78/687 is therefore not covered by any of the derogations from that provision referred to in paragraph 25 of this order. (C-35/02, par.27)
Moreover, it should be recalled that it is not open to Member States to create a category of dental practitioners which does not correspond to any category provided for by Directives 78/686 and 78/687 (see Case C-40/93 Commission v Italy, cited above, paragraph 24, and the order of 5 November 2002 in Case C-204/01 Klett [2002] ECR I-10007, paragraph 33). (C-35/02, par.28)
Applying that interpretation of those directives, the Court has ruled that a person may not carry out the activities of a dental practitioner even where he holds a diploma in medicine and has followed a specialised course in dentistry of three years’ duration (see Case C-40/93 Commission v Italy, Case C-202/99 Commission v Italy, and Klett, all cited above). Persons who hold only a diploma in medicine are, a fortiori, precluded from carrying out such activities. (C-35/02, par.29)
It follows that a general authorisation for doctors to practice dentistry on a permanent basis without holding the diplomas, certificates or other qualifications referred to in Article 3 of Directive 78/686, as required by Article 1 of Directive 78/687, is contrary to Community law. (C-35/02, par.30)
In that regard, the title under which those doctors intend to practice dentistry is of no relevance. If German doctors who do not have the training required by Article 1 of Directive 78/687 were authorised to practice dentistry under a title other than Zahnarzt, that would create a category of dental practitioners which does not correspond to any category provided for by Directives 78/686 and 78/687. (C-35/02, par.31)
The proper interpretation; the teleological one.
However, Mr Vogel submits that neither Directive 93/16 nor Directives 78/686 and 78/687 contain any restriction on the scope of doctors’ activities. In his view, if the Court were to rule that under Directives 78/686 and 78/687 doctors may not practice dentistry, those directives would be incompatible with Directive 93/16, since under that latter directive, doctors are entitled to practice odontostomatology, a discipline in the field of dentistry. (C-35/02, par.32)
In that regard, it need only be noted that Directives 78/686 and 78/687 seek to establish a clear separation of the professions of dental practitioner and doctor (see Case C-202/99 Commission v Italy, cited above, paragraph 51). Those directives apply to dental practitioners whereas Directive 93/16 applies to doctors and specialist medical practitioners. Even though Article 27 of that directive authorises specialist medical practitioners to practice stomatology, they must have met the training requirements laid down in that directive, namely at least three years of specialist training. (C-35/02, par.33)
The issue about the indirect effect of EU secondary law.
Mr Vogel also submits that the provisions of Directives 78/686 and 78/687 cannot apply to the dispute in the main proceedings because the provisions of a directive do not have direct effect against individuals. (C-35/02, par.34)
In that regard, it should be remembered, first, that the Member States’ obligation under a directive to achieve the result envisaged by the directive, and their duty under Article 10 EC to take all appropriate measures, whether general or particular, to ensure fulfilment of that obligation, are binding on all the authorities of the Member States, including, for matters within their jurisdiction, the courts (see, inter alia, Case C-168/95 Arcaro [1996] ECR I-4705, paragraph 41, and Case C-62/00 Marks & Spencer [2002] ECR I-6325, paragraph 24). (C-35/02, par.35)
Is there an infringement of the principle of non-retroactivity, if the previous case-law is to be implemented? The demand for ruling in light of the European law.
Mr Vogel submits, inter alia, that Directives 78/686 and 78/687, and the Court’s previous judgments relating to those directives, concern the right to practice dentistry under the title of dentist and not, as is the case at issue here, the right to practice dentistry as a doctor. In any event, those judgments were delivered well after he had embarked on his medical studies, on the basis of which he was expecting to be able to practice dentistry by virtue of Paragraph 1(1) of the ZHG, with the result that were those judgments to apply to his situation they would infringe the principle of non-retroactivity. (C-35/02, par.23)
It follows that, in applying domestic law, regardless of whether the provisions concerned are prior or subsequent to the directive, the national court called upon to interpret that law is required to do so, as far as possible, in the light of the wording and purpose of the directive, in order to achieve the purpose of the directive and thereby comply with the third paragraph of Article 249 EC (Case C-106/89 Marleasing [1990] ECR I-4135, paragraph 8, and Marks & Spencer, cited above, paragraph 24). (C-35/02, par.36)
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