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Obiektywne uzasadnienie jako istotny element dyskryminacji pośredniej – uwagi na tle orzecznictwa Trybunału Sprawiedliwości UE

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Maliszewska-Nienartowicz J.

Studia Europejskie-Studies in European Affairs

2017

issue 1

137-157

The article concentrates on the case-law of the Court of Justice concerning indirect discrimination, in particular one of its elements called objective justification. It should be noticed that this form of discrimination refers to neutral criteria which are not forbidden as such but their application puts the group of persons protected in a disadvantageous position. Such indirectly discriminatory measures can be justified by a legitimate aim but the means used to achieve it should be appropriate and necessary. These legitimate aims cannot be connected with any discrimination based on the forbidden criterion e.g. nationality, sex, age, disability etc. According to the case-law of the Court of Justice their list is not closed. However, legitimate aims can be divided into three groups: those that are related to the public interest and those that refer to the job or the company as a whole. It is interesting to note that the Court of Justice allows employers or service providers to refer to economic factors which is criticised by the doctrine of European Law. It is suggested that it should limit the list of aims which may justify indirect discrimination. Wide discretion in this regard may lead to weakening of the effectiveness of the prohibition of indirect discrimination. Another important element of this form of discrimination is proportionality of the measures applied to achieve a legitimate aim. The Court of Justice has not always applied the same proportionality test in relation to the measures undertaken by the Member States and by employers or service providers. However, the Court has changed its approach recently and has started to assess the proportionality of the measure in a similar way. On the whole it should be underlined that the Court of Justice plays a decisive role in the practical application of indirect discrimination. It can contribute to strengthening of the effectiveness of its prohibition e.g. by taking into account proportionality sensu stricto in the frames of objective justification and investigating whether there is an excessive restriction of individual rights in relation to the legitimate aim.

Inspection Regulation between General Procedural Codification and Field Specifics – a Case Study of Slovenia

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Kovač P.

DANUBE: Law and Economics Review

2016

vol. 7

issue 1

1-17

Inspection, as the authoritative supervision of private liable persons to comply their activities with sector-specific laws, should ensure the full implementation of public policies. Slovenia adopted the Inspection Act (IA) in 2002, in order to conduct efficient inspection, and simultaneously guarantee the defence rights of the supervised parties pursuant to the fundamental principles of the EU, the national Constitution, and general Administrative Procedure Act. This article addresses the search for a balance between general codification and sector-related specifics as stipulated by the IA, applying normative, constitutional case law and comparative methods. Special attention is dedicated to the IA rules regarding participants, their legal protection and stages of respective proceedings. It has been concluded that the most of the IA specifics are justified in order to efficiently serve the public interest. This study reveals that the Slovene IA can represent a role model for efficient yet democratic supervision in other MS as well.

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1 DANUBE: Law and Economics Review

1 Studia Europejskie-Studies in European Affairs

1 Kovač P.

1 Maliszewska-Nienartowicz J.

1 2017

1 2016

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Obiektywne uzasadnienie jako istotny element dyskryminacji pośredniej – uwagi na tle orzecznictwa Trybunału Sprawiedliwości UE

Inspection Regulation between General Procedural Codification and Field Specifics – a Case Study of Slovenia