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EU Law Problem Question - Direct Effect, Indirect Effect and Incidental Horizontal Effect

EU Law Problem Question - Direct Effect, Indirect Effect and Incidental Horizontal Effect

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Published by Philip Reynor Jr.
Margaret Green and Violet Jones are citizens and residents of Twenty Eight, an EU Member State which has been a Member State for over 40 years.
Margaret Green is an employee of Car Wash Limited. She has worked there for a period of ten years as an administrative assistant. She was on maternity leave for the last six months of 2012 and returned to work on 1 January 2013. On her return she was told that the administrative assistant position was filled, but that there was a job for her in the car-washing department where she will be required to wash cars and valet car interiors. The salary attaching to the job is €25,000, whereas as an administrative assistant Margaret earned €30,000. As an administrative assistant, Margaret was required to work from nine to five, Monday to Friday. In the car-washing department there is a rota schedule, with staff working five days of every seven, including working two Saturdays and two Sundays, per month. Margaret is very unhappy with these new employment arrangements.
Violet Jones is an employee of the National Hospital of Twenty Eight. She has worked there as a nurse for a period of ten years. She was on maternity leave for the last six months of 2012 and returned to work on 1 January 2013. Prior to her maternity leave Violet worked in the paediatric unit. She worked the night shift from 10 p.m. until 8 a.m. on a four nights on, four nights off basis. Prior to maternity leave she earned €40,000 per annum. On return to work she is asked to work in the geriatric ward, working the 2 p.m. to 10 p.m. shift, on a four days on, four days off basis. Her salary remains at €40,000. All other nursing staff who were colleagues in Violet’s grade and who were in active employment on 31 December 2012 moved to a higher salary of €42,500 and also benefitted from additional pension payments. Violet is very unhappy with these new employment arrangements.
Both Margaret and Violet seek your advice as to whether it is possible for them to rely on the provisions of Directive 2006/54/EC of the European Parliament and the Council 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 against their respective employers in the national courts of Twenty Eight.
Twenty Eight has not implemented the Directive with a specific domestic implementation measure but claims that the national laws in place prior to the adoption of the Directive are sufficient to implement it.
In this respect, one of the national measures on which Twenty Eight relies is the Maternity Leave Protection Act, 1976, which provides at Section 10: “A woman returning from maternity leave after the permissible six month period is entitled to a job with her employer, where she worked for the employer for a continuous period of twelve months prior to maternity leave.”
You are required to advise both Margaret and Violet.
Margaret Green and Violet Jones are citizens and residents of Twenty Eight, an EU Member State which has been a Member State for over 40 years.
Margaret Green is an employee of Car Wash Limited. She has worked there for a period of ten years as an administrative assistant. She was on maternity leave for the last six months of 2012 and returned to work on 1 January 2013. On her return she was told that the administrative assistant position was filled, but that there was a job for her in the car-washing department where she will be required to wash cars and valet car interiors. The salary attaching to the job is €25,000, whereas as an administrative assistant Margaret earned €30,000. As an administrative assistant, Margaret was required to work from nine to five, Monday to Friday. In the car-washing department there is a rota schedule, with staff working five days of every seven, including working two Saturdays and two Sundays, per month. Margaret is very unhappy with these new employment arrangements.
Violet Jones is an employee of the National Hospital of Twenty Eight. She has worked there as a nurse for a period of ten years. She was on maternity leave for the last six months of 2012 and returned to work on 1 January 2013. Prior to her maternity leave Violet worked in the paediatric unit. She worked the night shift from 10 p.m. until 8 a.m. on a four nights on, four nights off basis. Prior to maternity leave she earned €40,000 per annum. On return to work she is asked to work in the geriatric ward, working the 2 p.m. to 10 p.m. shift, on a four days on, four days off basis. Her salary remains at €40,000. All other nursing staff who were colleagues in Violet’s grade and who were in active employment on 31 December 2012 moved to a higher salary of €42,500 and also benefitted from additional pension payments. Violet is very unhappy with these new employment arrangements.
Both Margaret and Violet seek your advice as to whether it is possible for them to rely on the provisions of Directive 2006/54/EC of the European Parliament and the Council 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 against their respective employers in the national courts of Twenty Eight.
Twenty Eight has not implemented the Directive with a specific domestic implementation measure but claims that the national laws in place prior to the adoption of the Directive are sufficient to implement it.
In this respect, one of the national measures on which Twenty Eight relies is the Maternity Leave Protection Act, 1976, which provides at Section 10: “A woman returning from maternity leave after the permissible six month period is entitled to a job with her employer, where she worked for the employer for a continuous period of twelve months prior to maternity leave.”
You are required to advise both Margaret and Violet.

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Published by: Philip Reynor Jr. on Nov 26, 2013
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 European Union Law Assignment 2013 Student No. 100366
EU Law Assignment
Margaret Green and Violet Jones are citizens and residents of Twenty Eight, an EU Member State which has been a Member State for over 40 years. Margaret Green is an employee of Car Wash Limited. She has worked there for a period of ten years as an administrative assistant. She was on maternity leave for the last six months of 2012 and returned to work on 1 January 2013. On her return she was told that the administrative assistant  position was filled, but that there was a job for her in the car-washing department where she will be
required to wash cars and valet car interiors. The salary attaching to the job is €25,000, whereas as an
administrative assistant Margare
t earned €30,000. As an administrative assistant, Margaret was
required to work from nine to five, Monday to Friday. In the car-washing department there is a rota schedule, with staff working five days of every seven, including working two Saturdays and two Sundays, per month. Margaret is very unhappy with these new employment arrangements. Violet Jones is an employee of the National Hospital of Twenty Eight. She has worked there as a nurse for a period of ten years. She was on maternity leave for the last six months of 2012 and returned to work on 1 January 2013. Prior to her maternity leave Violet worked in the paediatric unit. She worked the night shift from 10 p.m. until 8 a.m. on a four nights on, four nights off basis. Prior to maternity leave
she earned €40,000 per annum. On return to work she is asked to work in the
geriatric ward, working the 2 p.m. to 10 p.m. shift, on a four days on, four days off basis. Her salary
remains at €40,000. All other nursing staff who were colleagues in Violet‟s grade and who were in active employment on 31 December 2012 moved to a higher salary of €42,500 and also benefitted
from additional pension payments. Violet is very unhappy with these new employment arrangements. Both Margaret and Violet seek your advice as to whether it is possible for them to rely on the  provisions of Directive 2006/54/EC of the European Parliament and the Council 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 against their respective employers in the national courts of Twenty Eight. Twenty Eight has not implemented the Directive with a specific domestic implementation measure  but claims that the national laws in place prior to the adoption of the Directive are sufficient to implement it. In this respect, one of the national measures on which Twenty Eight relies is the Maternity Leave
Protection Act, 1976, which provides at Section 10: “A woman returning from maternity leave afte
r the permissible six month period is entitled to a job with her employer, where she worked for the
employer for a continuous period of twelve months prior to maternity leave.”
You are required to advise both Margaret and Violet.
 
 European Union Law Assignment 2013 Student No. 100366 
 ~ 1 ~
oth of these cases concern women who were on maternity leave for the last six months of 2012, who had been working in their respective positions for ten years prior to taking maternity leave, whose working hours and conditions were altered in some way upon their return to work and who, at  bottom, want to
 
rely on the provisions of Directive 2006/54/EC against their respective employers in their national courts.
Ordering
In the instant case, the Member State is claiming that although Directive 2006/54 has not been implemented
 per say
 the national laws in place prior to the deadline for transposition are sufficient for implementation and as such, the plaintiffs must rely on those laws, rather than the Directive, before the national courts. The plaintiffs will in turn attempt to rebut this suggestion by arguing that the Directive has not been adequately implemented. This implies that the first sets of arguments will regard the state of the national law and whether or not the Directive is fully effective and achieving an outcome consistent with the objective pursued by it.
1
 If inadequacy of implementation can be established only then will it be possible to consider the manner in which the plaintiffs may rely on the Directive, that is, either directly, indirectly, incidentally or through general principles of EU law. As the possibility of harmonious interpretation would appear to exclude the disapplication of the national law, the next logical step is thus to consider indirect effect before examining direct effect, the ruling in
 Mangold v. Helm
2
 and, finally, the doctrine of incidental horizontal effect. Indeed, the European Court of Justice (ECJ) in
 Dominguez v. Centre Informatique du Centre Ouest Atlantique
3
 
found that “the question whether a national provision must be disapplie
d in as much as it conflicts with European Union law arises only if no compatible interpretation of that provision proves
 possible”
4
 and, the Court continued, in the event that such an interpretation is not possible, it is necessary to consider whether the directive has a direct effect and, if so, whether it can be relied on by the plaintiffs against their employers.
5
 
Inadequate Implementation
The purpose of Directive 2006/54 is ensure equal opportunities and treatment of men and women in matters of employment and occupation and this obligation is extended by Article 6 to individuals whose work is interrupted by maternity. Article 9 provides that provisions contrary to the principle of equal treatment shall include those based on sex either directly or indirectly, for suspending the
1
 See: C
 – 
 212/04
 Adeneler v. ELOG
[2004] ECR I 6057 at [111].
2
 Case C
 – 
 144/04
 Mangold v. Helm
 [2005] ECR I-9981.
3
 Case C
 – 
 282/10
 Dominguez v. Centre Informatique du Centre Ouest Atlantique
 [2012] I ECR 0000, nyr, 24 January 2012.
4
 Ibid at [23].
5
 Ibid at [32].
B
 
 European Union Law Assignment 2013 Student No. 100366 
 ~ 2 ~
retention or acquisition of rights during periods of maternity leave granted by law or agreement and  paid by the employer. Article 33 of the Directive provides,
inter alia
, that Member States shall take all necessary steps to
“guarantee the results imposed by this Directive.”
 Most importantly, Article 15 guarantees a threefold result: (i)
 
Employment in the same or equivalent position,
and
(ii)
 
Terms and conditions which are no less favourable,
and
(iii)
 
Benefit from any improvement in working conditions to which she would have been entitled during her absence. In contrast, s.10 of the Maternity Leave Protection Act 1976 offers the vague guarantee
of “a
 job
 and, overall, fails to meet any of the results guaranteed by Article 15. Furthermore, the guarantee itself is conditional upon the employee having worked with her employer for 12 months prior to the maternity leave
 – 
 a condition that does not affect the plaintiffs in this case. Article 15 offers a much  broader, more certain and unconditional level of protection which clearly coincides with the purpose and object of the Directive. When applied to the present case the difference is evident where the actions of both employers are in accordance with the terms of 1976 Act but fall far short of coinciding with the results guaranteed by the Directive. Margret Greene is now employed in a non-equivalent position, with significantly less favourable terms and conditions, while Violet Jones, although employed in an equivalent position, could argue that her conditions are now less a favourable given the changes in her roster and the nature of her work and that she also failed to benefit from wage increases and pension benefits that she would have been entitled during her absence under Article 15 of the Directive. To put this another way, firstly, the narrow scope of the right protected by the national law allows  both the National Hospital and Car Wash Ltd to benefit from the Member States
 failure to adequately implement Directive 2006/54 and, secondly, if such benefit were allowed to continue it would weaken the useful effect of Community law which, through the Directive, clearly legislates to prevent such an outcome.
6
 It is thus submitted that the national court will find that the s.10 of the 1976 Act does not adequately implement the Directive.
6
 In terms of the latter see: Case 41/74
Van Duyn v. Home Office
 [1974] ECR I-1337 at [12]. In terms of the former see: Case 148/78
 Pubblico Ministero v. Tullio Ratti
 [1979] E.C.R. I-1629 at [22].

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