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As Lord Walker has also commented, extra-judicially, Why does the topic of discrimination get so abstract and complicated as soon as it gets into the hands of the lawyers?. Ratio |
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Why cannot the topic be left to the intuitive decency and common sense of the right- thinking citizen? The answer, he suggests, is that intuition and common sense are sufficient in clear cases, but cannot by themselves provide the answer in marginal cases (Treating like cases alike and unlike cases differently: Some pr... |
Another answer, I would suggest, is that the concepts of direct and indirect discrimination, justification and proportionality, become altogether more difficult to apply the greater the number of prohibited grounds of discrimination and the wider the circumstances in which discrimination is prohibited. Ratio |
We are concerned with a rather different prohibition of discrimination from the more familiar domestic provisions, now contained in the Equality Act 2010, which aim to prohibit discrimination in the supply of employment, goods, services and the like on the grounds of protected characteristics such as race, sex or relig... |
Its foundation rests in article 12 of the EC Treaty: Within the scope of application of this Treaty, and without prejudice to any special provisions contained therein, any discrimination on grounds of nationality shall be prohibited. Ratio |
This is not a general prohibition of discrimination on grounds of nationality. Ratio |
Only the nationals of Member States are protected. Ratio |
Discrimination against third country nationals is not prohibited. Ratio |
Indeed it is positively expected. Ratio |
The underlying purpose is to promote the objects of the Union and in particular the free movement of workers between the Member States and the free establishment of businesses within them. Ratio |
The special provision made in Council Regulation (EEC) No 1408/71 is article 3.1. STA |
This requires that: Subject to the special provisions of this Regulation, persons to whom this Regulation applies shall be subject to the same obligations and enjoy the same benefits under the legislation of any Member State as the nationals of the State. STA |
Under article 2 of Regulation 1408/71, the persons covered by the Regulation must, among other things, be nationals of one of the Member States (or stateless persons or refugees residing within the territory of one of the Member States) or members of their families or their survivors. STA |
Once again, therefore, this is not a general requirement of equal treatment irrespective of nationality. STA |
It is there principally to protect the nationals of Member States. STA |
Moreover, on the face of it, there is no breach of article 3.1 in the United Kingdoms State Pension Credit Regulations 2002. Ratio |
Nationals of other Member States are subject to the same obligations and enjoy the same benefits under those Regulations as do the nationals of the United Kingdom. Ratio |
The question, however, is whether the rules under which they do so discriminate against them in a way which is prohibited by article 12 of the Treaty. Ratio |
The European jurisprudence on the interpretation of article 12 is not as clear cut as is the jurisprudence on sex discrimination. Ratio |
Thus, for example, it tends to talk about overt and covert discrimination rather than direct and indirect and the concepts may not be precisely equivalent. Ratio |
Also, there is no emphatic statement that direct discrimination can never be justified. Ratio |
Commissioner Rowland referred, at para 16 of his decision in this case, to Martinez Sala v Freistaat Bayern (Case C-85/96) [1998] ECR I-2691, at para 64: Since the unequal treatment in question thus comes within the scope of the Treaty, it cannot be considered to be justified: it is discrimination directly based on the... |
Commissioner Rowland commented that this certainly shows that the Court did not exclude the possibility that direct discrimination might in certain circumstances be justified, although he was inclined to agree that the paragraph was equivocal in that regard. Ratio |
I mention these considerations only to suggest that we may here be dealing with a rather more flexible concept, designed for a particular purpose within the law of the European Union, than with the more familiar concepts in our domestic anti-discrimination law, based though they are upon European Union law, but with th... |
But with that small caveat, I agree that the questions are (i) whether there is here direct or indirect discrimination against nationals of other Member States; and (ii) whether any such discrimination is justified. Ratio |
I have nothing to add to what Lord Hope has said on the Irish question. Ratio |
The difference between direct and indirect discrimination assumes great importance if it controls what, if any, justification may be possible. Ratio |
(In this respect, European Union and domestic anti-discrimination law is different from the European Convention on Human Rights, which does not draw this sharp distinction.) Yet it is by no means a straightforward question. Ratio |
Lord Walker has drawn attention to the opinions of Advocate General Jacobs in Schnorbus v Land Hessen (Case C-79/99) [2001] 1 CMLR 1025 and Advocate General Sharpston in Bressol v Gouvernement de la Communaut Franaise (Case C-73/08) [2010] 3 CMLR 559, ostensibly applying the same test but doing so in a rather different... |
At para AG52 of Bressol, Advocate General Sharpston quoted Advocate General Jacobs statement at para A33 of Schnorbus: The discrimination is direct where the difference in treatment is based on a criterion which is either explicitly that of sex or necessarily linked to a characteristic indissociable from sex. Ratio |
It is indirect where some other criterion is applied but a substantially higher proportion of one sex than the other is in fact affected. Ratio |
The complaint in Schnorbus was that candidates who had completed their national service were given priority over other candidates in admission to the second stage of legal training but only men were eligible for national service. Ratio |
Advocate General Jacobs took the view that this was indirect discrimination: eligibility for national service was a legal requirement rather than one, such as pregnancy, based on a physical characteristic which is indissociable from sex. Ratio |
He went on to opine that the discrimination was justified. Ratio |
The Court agreed with him on both points. Ratio |
Yet this distinction between legal requirements and physical characteristics might come as something of a surprise, for example, to readers of James v Eastleigh Borough Council [1990] 2 AC 751, where the discrimination between male and female swimmers was linked to a legal requirement, the statutory retirement age, whi... |
But at least in Schnorbus, as in James, there was an exact coincidence between the requirement and the sex of those whom it advantaged or disadvantaged as the case might be: in Schnorbus all men were advantaged and all women were disadvantaged; in James all men were disadvantaged and all women were advantaged. Ratio |
In Bressol Advocate General Sharpston took up the notion of a difference in treatment necessarily linked to a characteristic indisssociable from in her case nationality and formulated it thus, at para AG56: I take there to be direct discrimination when the category of those receiving a certain advantage and the categor... |
But she went on to opine that this test was fulfilled when there was no exact congruence between those advantaged and those disadvantaged by the requirement in question. Ratio |
Thus she held it direct discrimination on grounds of nationality when both Belgians and other nationals might fulfil the requirement of a right to remain permanently in Belgium, but only Belgians could do so automatically. Ratio |
This may be an attractive approach: it is, of course, the exact equivalent of the situation in this case. Ratio |
But it is certainly a development of the principle established in Schnorbus. Ratio |
It suggests that there can be direct discrimination even when some members of the disadvantaged group do fulfil the requirement in question even though others do not. Ratio |
The equivalent in Schnorbus would have been if all men were eligible to do national service but only some women were eligible to do so. Ratio |
At all events, it seems clear that the Grand Chamber in Bressol did not accept the Advocate Generals opinion on this point. Ratio |
The Court expressly stated, at para 47, that this was indirect discrimination on the ground of nationality, which was prohibited unless it was objectively justified. Ratio |
The Court then went on to discuss what might amount to objective justification in that case. Ratio |
The Court must therefore have rejected the Advocate Generals view that this amounted to direct discrimination. Ratio |
It follows, in my view, that we too should regard this case as a case of indirect, rather than direct, discrimination. Ratio |
No-one doubts that it is indirect. Ratio |
There have been many subtly different formulations of the test for indirect discrimination (Monaghan, for example, Equality Law, Oxford University Press, 2007, identifies four): but in essence it is the application of a criterion which is applied equally both to nationals and to non- nationals but which in fact places ... |
The right to reside criterion obviously places non- nationals at a particular disadvantage when compared with nationals and has in fact placed Ms Patmalniece at that disadvantage. Ratio |
Justification Ratio |
The Grand Chamber stated the test thus in R (Bidar) v Ealing London Borough Council (Case C-209/03) [2005] QB 812, para 54: Such a difference in treatment can be justified only if it is based on objective considerations independent of the nationality of the persons concerned and is proportionate to the legitimate aim o... |
This is a rather less precise way of putting the test than the way in which it is put in other contexts. Ratio |
The other formulations, for example in the Burden of Proof Directive (Council Directive 97/80/EC) or the Framework Directive on Equal Treatment (Council Directive 2000/78/EC), all make it clear that it is the provision, criterion or practice which has to be justified as a proportionate means of achieving a legitimate a... |
Although the concept of justification under article 12 has not been articulated in precisely this way, perhaps because it has not in itself been the subject of a Directive, it seems unlikely that the Court of Justice would approach it any differently. Ratio |
The approach in the Directives mentioned is the product of its own jurisprudence. Ratio |
If that is so, then it is the criterion of a right to reside which has to be objectively justified by considerations other than the nationality of those involved because it is that criterion which leads to the difference of treatment complained about. Ratio |
There is no doubt about the broad aim which it is sought to pursue. Ratio |
This is to protect the public purse, or more precisely, those who pay taxes in the United Kingdom, from the burden of relieving the poverty of everyone who is here, irrespective of the reasons why they are here. Ratio |
When the welfare state was first established, this was not seen as a problem. Ratio |
Everyone who was here could claim social assistance, in the shape of health and social services and also means-tested financial benefits. Ratio |
But the state progressively withdrew that support. Ratio |
That may be an explanation for the peculiar drafting technique of granting benefits to people in Great Britain and then defining the people who are, and are not, to be treated as in Great Britain for this purpose. Ratio |
The general aim is to identify those who are, or rather those who are not, considered deserving of income-related, that is, means- tested benefits. Ratio |
The Regulations contain two separate requirements, with two rather different aims. Ratio |
The requirement of habitual residence has been there since 1994 to combat benefit tourism, people coming here with a view to claiming benefits, rather than with a view to working or establishing themselves in business or a profession here. Ratio |
Thus certain categories of people who come here for other reasons are entitled to make claims even though they are not habitually resident here: these include people from other Member States who are workers or realistically looking for work, or have been workers but for a variety of reasons are so no longer, or people ... |
Other people, including UK nationals, have to show that they are habitually resident here. Ratio |
However, as the Government said in its response to the Report of the Social Security Advisory Committee, which preceded the introduction of the right to reside test, the habitual residence test cannot and was never intended to restrict longer-term access to the income-related benefits payable out of general taxation am... |
The right to reside test was introduced expressly for that purpose. Ratio |
It is necessary to look at these aims in the context of what Regulation 1408/71 is trying to achieve. Ratio |
As its recitals show, it is principally designed to co- ordinate national social security legislation in order to promote freedom of movement for employed and self-employed persons, while recognising that there are differences between the social security systems of the Member States. Ratio |
It caters for three different kinds of benefit in three different ways. Ratio |
At the top are those benefits described in article 4.1 as branches of social security. Ratio |
Many of these are based upon contributory social insurance schemes but some are not. Ratio |
Their main distinguishing feature is that they are paid as of right. Ratio |
They are not designed to top up the income of people whose individual means of support fall short of the nationally set subsistence level. Ratio |
Workers who move from one country to another must be allowed to participate in these social security schemes in the same way as workers in the host country. Ratio |
Further, if they have accrued certain benefits, including old age pensions, in one country, article 10 requires that they cannot be denied these simply because they have moved to live in another country. Ratio |
Thus Ms Patmalniece is entitled to have the Latvian authorities pay her her Latvian pension here. Ratio |
At the bottom are social and medical assistance [and] benefit schemes for victims of war or its consequences. Ratio |
Article 4.4 provides that these are excluded from the Regulation altogether. Ratio |
Social assistance used to encompass the kinds of income-related benefits with which we are here concerned. Ratio |
But now it appears to be limited to benefits in kind social and medical services along with discretionary cash benefits such as the grants and loans which are made by the United Kingdoms social fund. Ratio |
In the middle are the special non-contributory cash benefits, financed out of general taxation to guarantee a minimum subsistence level or to cater for disabled people, and specifically listed in Annex IIa to the Regulation. Ratio |
State pension credit is one of these. Ratio |
So too are income-based jobseekers allowance, income support, and disability living allowance (mobility component). Ratio |
Under article 10a, these are excluded from article 10 and are payable exclusively in the territory of the Member State in which they reside and under the legislation of that State. Ratio |
The question is whether it is legitimate to limit these benefits, entitlement to which under the Regulation depends upon the Member State in which the claimant resides, to people who are entitled to reside in that Member State. Ratio |
In answering that question, it is logical to look at the European law on the right to reside. Ratio |
If nationals of one Member State have the right to move to reside in another Member State under European Union law, it is logical to require that they also have the right to claim these special non-contributory cash benefits there in other words that the State in which they reside should be responsible for ensuring tha... |
But if they do not have the right under European Union law to move to reside there, then it is logical that that State should not have the responsibility for ensuring their minimum level of subsistence. Ratio |
That is why the Court of Appeal in this case, as in the earlier cases of Abdirahman v Secretary of State for Work and Pensions [2007] EWCA Civ 657, [2008] 1 WLR 254, and Kaczmarek v Secretary of State for Work and Pensions [2008] EWCA 1310, [2009] PTSR 897, focussed on article 18.1 of the Treaty, coupled with Directive... |
As the Grand Chamber held in Trojani v Centre Public dAide Sociale de Bruxelles (Case C-456/02) [2004] 3 CMLR 820, a non-national citizen of the Union, applying for a benefit because of lack of resources, did not derive a right to reside from article 18 of the Treaty, because that very lack of resources took him outsid... |
However, that is not the end of the story. Ratio |
The Secretary of State understandably places weight on the observation of Advocate General Geelhoed, at para AG70 of Trojani: The basic principle of Community law is that persons who depend upon social assistance will be taken care of in their own Member State. Ratio |
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