Question 1: Explain, briefly, the difference between the European Council and the Council of Europe. (approximately 250-300 words)
The Council of Europe is an international organization composed of 47 member states. Because the size of the Council of Europe is larger than that of the European Union, which is composed of 28 member states, the Council of Europe necessarily includes some member states that have not or could not join the European Union, such as Turkey. The Council of Europe is a political organization that only deals with such issues as human rights, rule of law, and democracy in Europe. Economics or national security are not within the ambit of the Council of Europe. One hallmark of the organization is European Convention on Human Rights. The Council of Europe has the European Court of Human Rights that oversees the implementation of the treaty.
Although it sounds similar to the Council of Europe, the European Council is one of the bodies belonging to another international organization, the European Union. The European Council is a political body that is composed of the heads of each member states. According to the Article 15(1) of Treaty on European Union, “The European Council shall provide the Union with the necessity impetus for its development and shall define the general political directions and priorities thereof.” The European Council serves a purpose of setting a high-level policy that are implemented by the EU institutions, just like a board of directors in a company. The European Council shapes the EU policy, and thereby establishing the framework for other institutions and bodies of the EU to follow when they deal with specific policy issues. Because the EU is an international organization dealing with comprehensive issues of its member states, including economics and national security, the European Council makes decisions on more variety of issues than the Council of Europe does.
Question #2 Explain what is the content and what is the function of the principle of national procedural autonomy in EU law. (approximately 500-700 words)
The principle of national procedural autonomy is defined as following: in implementing the EU law, the Member States enforce the law using the procedures and the rules established by national law, and the Member States are not required to adopt any new remedies, other than the remedies that are available under their national law. The principle of national procedural autonomy recognizes the separation of the roles between the Union and the Member States in regards to the EU law. It is the Union that creates substantive law, and it is the Member States that enforce such law using their own rules and procedures. An early ECJ case Rewe-Zentralfinanz (1976) articulates such a principle: “[T]he right conferred by Community law must be exercised before the national courts in accordance with the conditions laid by national rules.” The principle of national procedural autonomy is subject to two limitations: the principle of equivalence and the principle practical impossibility. Firstly, the principle of equivalence means that domestic procedural law, which is available to ensure the observance of national law, must be made available in the same way to ensure the observance of EU law. Secondly, the principle of practical possibility means that national rules and procedures should not make the exercise of an EU right impossible in practice.
However, the principle of national procedural autonomy does not apply when the Member States fail to implement the EU law. Then, the EU can use its own rules and enforce the EU law upon member states by invoking either the principle of state liability or infringement proceedings. Firstly, the principle of state liability holds that a Member State which failed implement an EU law has to pay compensation for breach of EU law. Francovich (1991) firstly established the principle of state liability. In this case, the applicants brought a claim against Italy because the government failed to implement Directive 80/987, which protected employees in the event of their employer’s insolvency. In the paragraph 35 of the decision, the ECJ ruled that the principle of state liability is “inherent in the system of the [EEC] Treaty.” Therefore, each Member State has to allow individual citizens to bring action for compensation or damages against the state for breach of EU law or an EU measure which lacked direct effect. The principle of state liability limits the principle of procedural autonomy because a Member State, which breached the EU law, needs to pay remedy and compensation as directed by the EU, not by exercising its own rules and autonomy.
In addition to the principle of state liability, the EU can use infringement proceedings to limit the principle of national procedural autonomy. Article 259 of Treaty on the Functioning of the European Union (TFEU) says that the Commission may initiate an infringement action against any member state, which has failed to comply with its EU obligations and may bring the matter before the ECJ should the relevant Member State fail to comply with the Commission’s recommendation. If the ECJ finds that there is infringement, then the Member States could be subject to fine or economic sanctions. One grounds to invoke the infringement proceedings against Member States is inadequate implementation of EU law. The Commission brings infringement proceedings either in response to a complaint or on its own initiative. The complaints from citizens serve as one of the most important sources of information for the Commission to bring infringement proceedings. Therefore, individual citizens are able to indirectly bring about infringement proceedings to force the Member States to implement the EU law. Infringement proceeding poses the limit to the principle of national procedural autonomy because this proceeding communicates to the Members States that they have freedom to implement the EU law, but no freedom to violate or disregard it.
Under the principle of procedural autonomy, the Member States are free to implement the EU law using their own rules and procedures. However, the Member States do not have freedom to violate the EU law. The principle of state liability and infringement proceedings allow the EU to intervene and ensure the Member States to enforce the EU law, intervening against the national autonomy of each Member State. The conflict between the principle of national procedural autonomy and the possible EU intervention in cases of non-compliance represents the constant power dynamics struggle between the Member States and the EU.
Question #3
Defrenne II judgment of the European Court of Justice (ECJ) represents a remarkable expansion of the scope and applicability of both EU fundamental rights and EU law. Defrenne II decision expanded the scope and applicability of the EU law in mainly two ways. First, Defrenne II expanded the direct effect principle by recognizing horizontal direct effect of the article 119 of European Economic Community (EEC) treaty and broadening a condition for direct effect laid out in Van Gend en Loos. Second, Defrenne II achieved the further expansion of the scope and applicability of the EU law by expanding Article 119 fundamental right to equal pay. Because Defrenne II opened the door for many discrimination cases to arise, the ECJ had opportunities to develop more direct effect principles, and thereby expanded the scope and applicability of EU law even further.
Defrenne v. Sabena, or commonly referred to as Defrenne II, is a European Court of Justice decision rendered in 1976. It is the first time that the ECJ handled a case regarding direct discrimination. Ms. Defrenne was a flight attendant for a Belgian air company, Sabena. Her employment was terminated at the age of 40 in accordance to her employment contract. She argued that her right to equal payment guaranteed in Article 119 was violated because male crews did not have to retire at the same age. Since its adoption, the Treaty had the requirement of equal pay for equal work in Article 119, which was applicable to the Member States. Article 119 is currently in the Article 157(1) of Treaty on the Functioning of the European Union (TFEU). Current Article 157(1) of TFEU says, “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.” Amsterdam Treaty of 1997 added “or work of equal value” to the original EEC article 119.
Defrenne II judgment represents a significant expansion of the scope and applicability of the Community law by expanding the principle of direct effect in two ways. Firstly, Defrenne II established horizontal direct effect of Community provisions. The principle of direct effect first came to existence in Van Gend en Loos (1963). The ECJ in Van Gend en Loos held, the EEC provisions created individual rights for citizens of the Member States that could be invoked and enforced in their national courts. The principle of direct effect is the very existence that allows the application of the Community law upon the Member States. Without this principle, the Community law and norms are not guaranteed to be implemented on national level. It is Van Gend en Loos that made the EU law applicable in the Member States, and it is Defrenne II expanded the scope of applicability. Van Gend en Loos established only vertical direct effect, i.e. individual citizens’ capability to enforce the Community law against their states. It is Defrenne II that introduced the concept of horizontal direct effect, or direct effect against other individual citizens. In paragraph 39 of Defrenne II, the Court says, “[S]ince Article 119 is mandatory in nature, the prohibition on discrimination between men and women applies not only to the action of public authorities, but also extends to… contracts between individuals.” Defrenne II held that individual citizens can enforce Article 119 right of equal pay for equal work against other private citizens in their national courts. Therefore, it was within the rights of Ms. Defrenne to seek redress to his former employer in Belgian court under Article 119. Defrenne II represents the wide expansion of the applicability of the Community Law by allowing the Community law to even govern private relationships between individual citizens in their own national courts.
Second, Defrenne II expanded the scope and applicability of the direct effect principle by relaxing one of the initial conditions for direct effect laid out in Van Gend en Loos. Van Gend en Loos established five criteria for a Treaty article to have direct effect: an article has to be clear, negative, unconditional, containing no reservation on the part of the Member State, and not dependent on any national implementing measures. Out of these five, Defrenne II overcame the condition that direct effect was not allowed where further national measures were required. Instead, when the basic principle that governs the relevant area is sufficiently clear, it can have direct effect, despite the absence of implementing measures at the Community or national level. At the time of Defrenne II, neither the Commission nor the Member States thought that the terms of Article 119 were precise enough to have direct effect upon the Member States. The term ‘principle’ was not very specific and the terms ‘pay’ and ‘work’ were not defined at that time. However, the ECJ still held that the right of equal in Article 119 was eligible to have direct effect because the ECJ deemed the basic principle of the Article 119 right to be sufficiently clear.
In addition to the expansion of the scope and applicability of direct effect principle, Defrenne II decision also expanded the scope of the Community law by opening the door for numerous gender-equality related fundamental rights to be a part of the Community law. Since the inception of the EEC treaty, Article 119 right was existent. However, except for the right of equal pay, the treaty did not have any other provisions on equal treatment. According to Craig and De Burca, the Member States, especially France, seemed to have inserted the provision because they worried that their observance of equal pay put them in a competitively disadvantageous position than their counterpart who did not obey the principle. Therefore, these member states adopted Article 119 right, primarily driven by economic reasons, not concern over unfair treatment in the labor market. This attitude is not surprising because the EEC was originally established to be a mere economic community which governs free market and trades.
Contrary to the intentions of the Member States at the inception of the EEC treaty, the ECJ declares in the paragraph 8 of Defrenne II, “Article 119 pursues a double aim.” In paragraph 9, the ECJ acknowledges that article 119 serves the economic aim as well: to prevent other member states from gaining competitive economic benefit from another member state’s compliance with the principle of equal pay. However, in paragraph 10, the Court declares, Article 119 also “forms part of the social objectives of the Community, which is not merely an economic union, but is at the same time intended, by common action, to ensure social progress and seek the constant improvement of the living and working conditions of their peoples…” Because Article 119 pursues dual aims, the Court elevated Article 119 right to the status of fundamental human rights of the Community. The Court declares in paragraph 12, “[t]his double aim, which is at once economic and social, shows that the principle of equal pay forms part of the foundations of the community.” (Italics added.) Following this spirit, in Defrenne III, a case dealing with the same parties but different issues as Defrenne II, the Court went beyond the right to equal pay and declares that the elimination of sex discrimination in general was one of the fundamental human rights which had to be protected within EU law. Due to Defrenne II, not only fundamental right of equal pay but also more general principle of gender equality solidifies its formal position in the EU law system.
Because the ECJ recognized that there is a statutory fundamental right, the right to equal pay has solid legal bases from which the Court can define and expand its scope and domain. Defrenne II opened the floodgate of related gender equality rights that are yet to come. Defrenne II gave these rights direct effect, i.e. the applicability to govern both vertical and horizontal relationships. Not surprisingly, EU anti-gender-discrimination law is the strongest, the best-documented and the best-resourced of all fundamental rights law. The expansion of the scope and applicability of fundamental rights thereby expands the scope and applicability of EU law by incorporating numerous gender equality rights into the realm of EU law. Defrenne II expands the scope and applicability of EU fundamental rights by bringing about further expansion of the right to equal pay and of EU law through solidification of the general principle of gender equality.
Firstly, the ECJ expanded the applicability and the scope of EU fundamental rights by expanding the right to equal pay, through its broad interpretation of what constitutes ‘pay.’ Because Defrenne II led to litigations on the right to equal pay in national courts of the Member States, the ECJ began to have a growing body of case law to define what is ‘pay’. The ECJ has held regular wages as well as many other related kinds of remuneration as ‘pay’. For example, in Garland (1982), although retirees are no longer employed, the ECJ held that special travel facilities that retirees are entitled to use are ‘pay’ because special travel facilities are the benefits arose from their past employment. In Lewen (1999), the Court held that a Christmas bonus constitutes ‘pay’. In Kowalska (1990), a severance grant was recognized as ‘pay.’ Even though a severance grant was paid on termination, not during employment, it is ‘pay’ because a worker receives such a grant by reason of his or her employment. In Seymour-Smith (1999), the Court even viewed compensation for unfair dismissal as ‘pay’ because the compensation was meant to replace wage that the employee would have received had he or she not been unfairly dismissed.
The Court further expanded the scope and applicability of the equal payment right by holding that even occupational pensions may constitute as ‘pay.’ In Defrenne I, in which Belgian Court referred Ms. Defrenne’s case for preliminary ruling to the ECJ, the Court held that social security benefits and pension schemes that have the characteristics of social security benefits are not ‘pay.’ Regardless of the ruling of Defrenne I, the Court included some occupational pension schemes into the realm of Article 119 right. In Bilka-Kaufhaus (1986), the Court held that a supplementary occupational pension scheme was ‘pay,’ not social security; an agreement between the employer and the employee staff committee, not the statute, governed the scheme, and the employer completely financed the scheme. Even if the employer arranged the scheme in a way to correspond to the statutory social security scheme, the Court considered this fact as irrelevant to the analysis. Even more far-reaching judgment is Barber (1990). Notwithstanding the derogation of Directive 86/378/EEC on equal treatment in respect of occupational pensions, the Court ruled that even a private occupational pension scheme that was meant to directly substitute and to fulfill the obligations of the statutory scheme would constitute ‘pay’, not social security.
By recognizing the gamut of employment benefits as ‘pay,’ the Court has broadened the scope of fundamental right of equal pay expansively. Since Defrenne II gave both vertical and horizontal direct effect on those rights, individual citizens in the Member States has more chances to enforce the EU fundamental rights against the Members States or private parties on a wide scope of claims regarding ‘pay.’ The expansion of the scope and applicability of an EU fundamental right represents the expansion of the scope and applicability of EU law, closely impacting everyday lives of citizens of the Member States.
Defrenne II expanded not only the right to equal pay but also more general principle of non-discrimination and equality. Defrenne II led to such an expansion by providing the impetus for the EU to legislate more generally on equal treatment and interpreting such legislations in a way to promote the principle of gender equality. Because Defrenne III held that non-discrimination on the basis of sex is fundamental human rights of the EU, following Defrenne II, such a ECJ ruling has provided the impetus for the EU legislation to achieve more general gender equality at workplace, to further protect and enshrine this fundamental principle of the Community. After Defrenne II, numerous directives on gender equality followed. Such legislations include: legislation on equal treatment relating to access to employment, vocational training, promotion and working conditions (76/207), on equal treatment in state social security (79/7), in occupational security schemes (86/378/EEC), and equal treatment between men and women in a self-employed capacity (86/613), directive on the protection of pregnancy and maternity (92/85), and paternal leave (96/34). The EU eventually consolidated the directives on equal pay, equal treatment, occupational social security, and the burden of proof into one: Directive 2006/54.
The Court supported the EU’s move to establish more general principle of gender equality in workplace by bolstering the substantive protections provided by the social legislation. Most notably, equal treatment in workplace under Directive 2006/54 finds judicial support from the ECJ. The ECJ has bolstered legislative protections in such areas as pregnancy or transsexuality. Firstly, the ECJ in Dekker (1990) ruled that an employer contravenes the principle of equal treatment in Equal Treatment Directive 76/207 (currently, Directive 2006/54) when he refused to enter into an employment contract with a female candidate due to her pregnancy. The ECJ even protected in vitro fertilization treatment to combat pregnancy-related discrimination. In Mayr (2008), although transfer of the fertilized ova into the women’s uterus had not yet happened, the Court viewed the dismissal of a female worker on sickness leave who was at an advanced stage of in vitro fertilization treatment as a violation of the Equal Treatment Directive. Furthermore, the ECJ held that Equal Treatment Directive also prohibited discrimination against transsexuals in P v S case (1996). The ECJ has bolstered many other protections rendered by the social legislations.
The EU legislations and cooperative interpretation of the ECJ have established the general principle of non-discrimination in workplace. Therefore, general principle of gender equality in workplace, a fruit of Defrenne II, has expanded its scope to include many work-related non-discrimination rights. Although many judicial rulings confirmed the fundamental status of the general principle of gender equality, the principle has not yet been held to have direct effect against the Member States because the principle may need further national legislative implementation to be fully effective. However, general principle of gender equality still imposes important limit on the EU legislations. In Rinke, the ECJ held that the general principle of gender equality was a condition for the legality of EU action, and thus any EU legislative measures that violate the principle would be illegal. Furthermore, the solidification of general principle of gender equality has expanded the scope of EU law. EU law now embraces many gender-related rights under an umbrella of general principle of gender equality.
Because Defrenne II resulted in a great expansion of the scope and applicability of fundamental rights, the ECJ was also presented opportunities to examine other important principles that could potentially expand the scope and applicability of the EU law even further. Because Defrenne II gave rise to many legal obligations and rights that have vertical and horizontal direct effect, Defrenne II opened the floodgate of discrimination cases before the national courts. Such gender discrimination cases indirectly promoted other discrimination cases to be brought before the ECJ and presented the ECJ to develop important direct effect principles. Firstly, the ECJ in Marshall (1986) held that a directive could have vertical direct effect in a retirement age discrimination case. Also, in Mangold and Kucukdeveci, the Court held that the general principle of non-discrimination exists in the EU law and this principle requires the setting aside of conflicting national law. Thanks to Defrenne II, the scope of the EU’s direct effect extended further and individual citizens have more bullets to fire against the Member States. Defrenne II thereby further expanded the reach of EU law on everyday lives of citizens.
The EU at the time of Defrenne II and as of now is not identical. In Schroder, the ECJ declares that “the economic aim pursued by Article 119… is secondary to the social aim pursued by the same provision, which constitutes the expression of a fundamental right.” By establishing vertical and horizontal direct effect of a statutory fundamental right, Defrenne II helped the EU to change a merely economic entity into a champion of fundamental rights of the European citizens. The citizens of the Member States feel the presence of the EU law and fundamental rights in their daily lives. The EU law and fundamental rights has become an intimate part of the citizens.