Update on workers and the EU

Rights of pregnant workers

The European Court of Justice (ECJ) has decided, in the case of Silke-Karin Mahlburg v Land Mecklenburg-Vorpommern (C-207/98) that German laws on the protection of pregnant women cannot be used by an employer to refuse to appoint an expectant mother to a post for an indefinite period.  The woman in this case, who applied for a job as an operating theatre nurse, was rejected by the employer who relied on German legislation that prohibits employers from employing pregnant women in areas where they would be exposed to the effects of dangerous substances.  The ECJ, relying on the EC Directive on equal treatment of men and women, found that since only women can be refused employment on grounds of pregnancy such refusal was discriminatory.  It concluded that legislation for the protection of women should not be an obstacle in their access to employment.

Women given access to military careers in Germany

The European Court of Justice recently gave its judgment in the case of Tanja Kreil v Federal Republic of Germany (C-285/98).  Ms Kreil, who was trained in electronics, had applied for service in the Bundeswehr in weapons electronic but saw her application rejected on the ground that German law prohibits women from military posts involving the use of arms.  On reference to the ECJ, the Court reiterated that the Community principle of equal treatment for men and women applies in principle to the armed forces.  However, there is an exception to this rule covering occupational activities for which, by reason of their nature or the context in which they are carried out, the sex of the worker constitutes a determining factor.  (This derogation was recently used by the UK to successfully justify the exclusion of women from the Royal Marines in the Sirdar case (C-273/97).) The ECJ ruled in Kreil that the exclusion of women from military posts involving the use of arms was such as to exclude almost all military posts in the Bundeswehr.  Even taking into account the discretion which the national authorities have in the matter, the derogation had to be strictly interpreted and such a blanket exclusion had to be considered disproportionate.

Free Movement of Services

Two proposals to facilitate the free movement of services in the internal market recently received the backing of the European Parliament (http://www.europarl.eu.int/plenary/en/default.htm).  The draft Directives (OJ C67/12 10.03.99) (http://europa.eu.in/eurlex/en/com/pdf/1999/com1999_0003en0l.pdf) seek to ease the procedural difficulties faced by non-Community nationals already working in one Member State and wishing, either on their own account or at the behest of their employer, to provide services temporarily in another Member State.  The proposals introduce the concept of an ‘EU service provision card’ obtainable from the authorities in the Member State where the non-Community national is employed or established.  The EU service provision card will allow the holder to provide services in another Member State for up to one year.  Renewal will not be automatic and the issuing Member State must agree to re-admit the worker or service provider when the card expires.  The draft Directives are due to be discussed by the Council of Ministers in May.

Free movement of workers

In two cases before the ECJ the Court has considered the application of the social security systems of the Member States to people travelling across national borders to work.  In Fitzwilliam Executive Search Ltd v Bestuur van het Landelijk Instituut Sociale Verzekeringen (C-202/97) workers were employed by an agency dealing with the provision of temporary personnel in Ireland and the Netherlands.  Their workers were of Irish nationality resident in Ireland and the contracts were drawn up under Irish law.  Whilst working in the Netherlands they were for social security purposes covered by the Irish system and an E101 certificate had been provided by the Irish Department of Social Welfare to that effect.  The Dutch authorities, however, considered that as the company’s turnover in the Netherlands was greater than its turnover in Ireland, it was required to pay employer’s contributions in the Netherlands for its employees posted there.

The Community rules on the application of social security legislation schemes to employees provide that, as a general rule, employees are to be subject to the social security system of the Member State in which they are working (even if the employees live in another Member State or if their employer has its seat in another Member State).  The ECJ reiterated that the purpose of the legislation was to ensure that workers moving in the community are subject to a single social security system in order not to impede freedom of movement and to promote the exercise by undertakings of their freedom to provide services.  However, there is an exception to that rule in the case of employees who are posted to another Member State to perform work there for that undertaking and for a specific duration of work not exceeding 12 months.  For the exception to apply there must be specific links between the undertaking providing the temporary personnel and the State in which the undertaking is based.  The provision of an E101 card creates a presumption that posted workers are properly affiliated to the social security of the State which issues it and is therefore binding on the social security institutions of other Member States, unless properly challenged.

In Commission v France (C-169/98 and C-34/98) the European Court of Justice ruled that French legislation obliging persons resident in France but working in other Member States to pay contributions to the French social security scheme was discriminatory.  These workers would also be obliged to pay towards the social security system of the State or States in which they were working for which they would receive tangible benefits.  The application of a second social security system, from which they would gain no tangible benefits, constituted an unjustifiable obstacle to the free movement of workers.

The full text of all of these cases can be found at the European Court of Justice website - www.curiaeu.int