Discrimination

Behaviours that can be defined as real and true discrimination

The European Court of Justice delivered the following ruling regarding the discrimination of EU citizens in the workplace: "Under Article 48 of the Treaty, the free movement of workers within the Community implies the abolition of any discrimination based on nationality among workers of the Member States concerning employment, remuneration, and other working conditions. It should be noted, first of all, that the principle of non-discrimination set out in Article 48 of the Treaty is framed in general terms and is not specifically directed at Member States.

The Court thus considered that the prohibition of discrimination based on nationality applies not only to acts by public authorities but also to rules of any kind aimed at collectively regulating dependent work and the provision of services (see judgment of December 12, 1974, Case 36/74, Walrave and Koch, Rec. p. 1405, paragraph 17)."

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The Court, in fact, considered that the abolition between Member States of obstacles to the free movement of persons would be undermined if the elimination of limitations established by State rules could be neutralised by obstacles resulting from the exercise of the legal autonomy of associations and bodies of a non-public nature (see the Walrave and Koch judgment, cited above, par. 18, and Case C-415/93 Bosman and Others [1995] ECR I-4921, par. 83).

The Court has emphasised that, since working conditions in the various Member States are governed sometimes by rules of a legislative or regulatory nature, and sometimes by contracts and other acts concluded or issued by private individuals, a limitation of the prohibition of discrimination on grounds of nationality to acts of public authority would risk creating disparities in its application (see, cited above, Walrave and Koch, paragraph 19, and Bosman and Others, paragraph 84).

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The Court also considered that the fact that certain provisions of the Treaty are formally addressed to the Member States does not exclude that, at the same time, rights are granted to the individuals concerned to ensure compliance with the obligations thus defined (see judgment of April 8, 1976, Case 43/75, Defrenne, Rec. p. 455, paragraph 31).

The Court thus concluded, with regard to a provision of the Treaty of an imperative nature, that the prohibition of discrimination also applies to all contracts that collectively regulate dependent work, as well as contracts between private parties (see the aforementioned judgment of Defrenne, paragraph 39).

Such a consideration must, a fortiori, apply to Article 48 of the Treaty, which enunciates a fundamental freedom and constitutes a specific application of the general prohibition of discrimination set out in Article 6 of the EC Treaty (which, after modification, became Article 12 EC). In this regard, it aims to guarantee, just like Article 119 of the EC Treaty (Articles 117-120 of the EC Treaty were replaced by Articles 136 EC - 143 EC), non-discriminatory treatment in the labour market. It must therefore be considered that the prohibition of discrimination based on nationality, set out in Article 48 of the Treaty, also applies to private individuals.

Dismissal

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