The week that was

The week that saw the 10th anniversary of the European Research Council, began with the renewed demand by the First Minister of Scotland, Nicola Sturgeon, that Scotland have a chance to vote on whether it leaves the UK before the UK leaves the EU. This would be at some point between Autumn 2018 and Spring 2019. Her demand was immediately rebuffed by Teresa May, who condemned the move as the wrong policy at the wrong time, and committed herself to holding together this ‘precious, precious Union.’

As Stormont rose, the Lords retreated – having seen their two amendments on EU workers and a meaningful vote rejected by an increased majority, they allowed the 2 paragraph Brexit Bill to pass into law un-amended. Teresa May now has the power to begin Brexit talks and many expected Article 50 to be triggered by Tuesday but this did not happen, perhaps due to the storm brewing in Stormont, or the worry caused by Wilders in the Netherlands. The latter was resolved when Dutch voters rejected his racist and xenophobic vision for their country; it remains to be seen if and how Scottish voters will respond to the SNP.

The week also brought a visual manifestation of the chilly relations between the EU and the USA. Due to bad weather on Tuesday, the meeting between Merkel and Trump was postponed to Friday. Merkel may have been present as the German Chancellor but is widely seen as the leader of the free world and the voice of the EU. The body language at their press conference said it all, but in case of any doubt, there was then the so-called ‘Merkel Moment’.

John Major re-launched his condemnation of Leave campaigners saying “It was dishonest and wrong to promise the British people an easy, favourable deal with the EU, wrong to promise swift new trade deals, and wrong to state that the Irish peace process would not be unsettled by Brexit.” He dismissed claims that Britain could thrive under WTO rules, warning that 90% of UK exports to the EU would become more expensive, with tariffs that would add about £6bn to their costs.

Officials from the Department for International Trade may agree with him, which is why a Brexit Plan B is being discretely drawn up. They are investigating whether the UK can invoke the rarely–used Article 24 of the WTO Treaty. This would allow the U.K. and Brussels a “reasonable length of time” after Brexit to agree a transitional free-trade deal before WTO law forces both sides to impose the same tariffs on each other as they do on everybody else. Such an interim deal would avoid a ‘hard Brexit’ in March 2019 by keeping tariffs at zero when the UK leaves the Single Market.

Major also condemned the ‘fake facts and bogus promises’ spread by the Brexiters. Indeed far from the promised infusion of an extra 350 million per week,  the NHS is becoming de-staffed and de-skilled: nurses are leaving and not being replaced. Many of the 55,000 doctors and nurses in the NHS from the EU have felt unwelcome after the EU referendum and are now leaving. Simultaneously, new registrations of EU nationals as nurses in England have dropped by 92% since June 2016.

Given the departure of health-care experts, it is some comfort that the EU’s Rapid Alert System for dangerous products seems to be functioning well. According to the report for 2016, national authorities removed more dangerous products from stores and in response to increased e-commerce, the Commission has increased cooperation with Amazon, Ebay and Alibaba to tackle potentially dangerous products, such as toys, sold online. The Commission also continues to plan for the 60th celebrations of the EU on March 25th where the White Paper, presented by the European Commission setting out the vision of the 27 for the future of Europe after Brexit, will be debated.

From the CJEU:

Case C157/15 Samira Achbita and Centrum voor gelijkheid van kansen en voor racismebestrijding v G4S Secure Solutions NV and C-188/15 Asma Bougnaoui Association de défense des droits de l’homme (ADDH) v Micropole SA

While national law at present allows employers to demand that women wear high heels, EU law has now stated that employers can forbid Muslim women from wearing headscarves. Achbita, as explained by Monique Steijns, raises more questions than answers.

The cases – the first from the CJEU on religious discrimination – concerned Belgian and French women employees who were fired for wearing an Islamic headscarf. In the case of Achbita a preliminary question asked how Article 2(2)(a) 1 and 2 of Employment Framework Directive 2000/78 on equal treatment in employment and occupation must be interpreted. The core question was whether the prohibition on wearing an Islamic headscarf, set out in the general internal rules of a private company, is direct discrimination.

In its assessment, the CJEU found that the internal rules at issue banned all visible religious, political or philosophical symbols and that they applied in the same way to all employers so as to secure a neutral company image. The internal rules were applied without distinction, explicitly prohibiting the wearing of any visible sign of political or philosophical not just religious beliefs. Therefore, the court concluded that the ban at issue could not be regarded as direct discrimination in the sense of Directive 2000/78.

As said by Steijns, ‘..the considerable weight given to a company’s desire to promote a neutral appearance seems somewhat curious…It could be argued that in contrast to Eweida, the ruling of the CJEU provides more space for employers to ban the wearing of religious symbols in the workspace without violating the fundamental right to freedom of religion or belief. The ruling could be understood as confirming that the mere wish of a company to present itself in a neutral way is an objective justification for a different treatment of employees.’

 

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