Ambiguous EU law needs to be more discriminating
It is worth remembering that the no-discrimination principle is a two-way street. Poland must treat EU companies and nationals no less favorably than its own.One of the central pillars of the Association Agreement (known as the "Europe Agreement") reached between the European Community and Poland in 1991 states there can be no discrimination between European Union countries and Poland on the basis of nationality.
Of course that hasn't stopped cases from appearing. In two such recent examples, Polish nationals living in the U.K. and Germany filed directly with the local governments invoking the "no-discrimination" principle of the Association Agreement. While the U.K. ruling showed how the principle can be wrongly used as a loophole, the German example demonstrated that a discriminating provision is not always easily identified and that domestic legislation may inadvertently discriminate in a way prohibited under the Association Agreement. No loophole
In the case of the former, a U.K. court last September issued a first decision in a case initiated by two Polish nationals before the High Court of Justice. The facts were straightforward: A Polish married couple entered the U.K. separately and declared themselves to be tourists. Their entry visas prohibited them from working or engaging in any business activities in the U.K. One of them, however, started to work. A few years later, the couple sought to normalize their stay in the U.K. and asked to be recognized as having a right to be self-employed under the Association Agreement. Their application was rejected on the basis of U.K. immigration laws - they had violated their original visa conditions.
According to the Association Agreement, Polish nationals who establish themselves as self-employed in any EU member state, or manage undertakings in any member country, must be treated no less favorably than locals. This right of establishment is, of course, subject to local immigration laws but these cannot be applied in any unreasonable or excessive way. The Association Agreement does not give Polish workers the right to enter or stay in any of the member states.
The U.K. government applied its immigration laws, which effectively overruled the no-discrimination principle. The European Court of Justice agreed that the no-discrimination principle is not a means to indirectly gain access to another country's labor market. Any Polish national who intends to work in a member state, but who avoids local immigration controls by falsely declaring that he is entering as a tourist, places himself outside the protection granted by the Association Agreement. Don't discriminate against us
A decision by the European Court of Justice on Jan. 29 held that Germany had violated the Association Agreement, and in particular the no-discrimination principle applicable to working conditions, remuneration and dismissal of Polish workers legally employed in a member state.
In this case, a Polish national was working legally as a foreign-language assistant at a German university. She challenged that her contract was of limited duration and expired at the end of its term.
German law made a distinction between foreign-language teachers - those who could only be employed with a fixed-term contract - and other university staff, for whom such restrictions did not apply. Although the different treatment did not constitute a direct discrimination on the grounds of nationality, the court decided that the German law was indirectly discriminatory because the majority of foreign-language assistants were of foreign nationality. The court therefore decided that, under the agreement, Polish nationals were exempt from this law because it discriminated on the grounds of nationality.Law of the land
It is worth remembering that the no-discrimination principle is a two-way street. Poland must treat EU companies and nationals no less favorably than its own. The same principle of no discrimination applies to the operation and management of EU companies already in Poland. The Association Agreement also states that Poland cannot adopt any new regulations or measures that introduce discrimination against the establishment of operations of EU companies and nationals in Poland.
Although the decisions of the European Court of Justice are not binding for Poland, a Polish court that hears a discrimination case brought by an EU company or national will have to take into consideration the principles included in the Association Agreement if they are invoked during a case. The Association Agreement is part of Polish law and there is no doubt that an EU company or national that is subject to discriminatory treatment could invoke it and use the recent decisions of the European Court of Justice as a strong argument to support its case before the Polish courts. Michéle Fajtmann, a member of the Brussels and New York bars, is responsible for European law practice at White & Case W. Daniłowicz, W. Jurcewicz i Wspólnicy - Kancelaria Prawna Spółka komandytowa
Of course that hasn't stopped cases from appearing. In two such recent examples, Polish nationals living in the U.K. and Germany filed directly with the local governments invoking the "no-discrimination" principle of the Association Agreement. While the U.K. ruling showed how the principle can be wrongly used as a loophole, the German example demonstrated that a discriminating provision is not always easily identified and that domestic legislation may inadvertently discriminate in a way prohibited under the Association Agreement. No loophole
In the case of the former, a U.K. court last September issued a first decision in a case initiated by two Polish nationals before the High Court of Justice. The facts were straightforward: A Polish married couple entered the U.K. separately and declared themselves to be tourists. Their entry visas prohibited them from working or engaging in any business activities in the U.K. One of them, however, started to work. A few years later, the couple sought to normalize their stay in the U.K. and asked to be recognized as having a right to be self-employed under the Association Agreement. Their application was rejected on the basis of U.K. immigration laws - they had violated their original visa conditions.
According to the Association Agreement, Polish nationals who establish themselves as self-employed in any EU member state, or manage undertakings in any member country, must be treated no less favorably than locals. This right of establishment is, of course, subject to local immigration laws but these cannot be applied in any unreasonable or excessive way. The Association Agreement does not give Polish workers the right to enter or stay in any of the member states.
The U.K. government applied its immigration laws, which effectively overruled the no-discrimination principle. The European Court of Justice agreed that the no-discrimination principle is not a means to indirectly gain access to another country's labor market. Any Polish national who intends to work in a member state, but who avoids local immigration controls by falsely declaring that he is entering as a tourist, places himself outside the protection granted by the Association Agreement. Don't discriminate against us
A decision by the European Court of Justice on Jan. 29 held that Germany had violated the Association Agreement, and in particular the no-discrimination principle applicable to working conditions, remuneration and dismissal of Polish workers legally employed in a member state.
In this case, a Polish national was working legally as a foreign-language assistant at a German university. She challenged that her contract was of limited duration and expired at the end of its term.
German law made a distinction between foreign-language teachers - those who could only be employed with a fixed-term contract - and other university staff, for whom such restrictions did not apply. Although the different treatment did not constitute a direct discrimination on the grounds of nationality, the court decided that the German law was indirectly discriminatory because the majority of foreign-language assistants were of foreign nationality. The court therefore decided that, under the agreement, Polish nationals were exempt from this law because it discriminated on the grounds of nationality.Law of the land
It is worth remembering that the no-discrimination principle is a two-way street. Poland must treat EU companies and nationals no less favorably than its own. The same principle of no discrimination applies to the operation and management of EU companies already in Poland. The Association Agreement also states that Poland cannot adopt any new regulations or measures that introduce discrimination against the establishment of operations of EU companies and nationals in Poland.
Although the decisions of the European Court of Justice are not binding for Poland, a Polish court that hears a discrimination case brought by an EU company or national will have to take into consideration the principles included in the Association Agreement if they are invoked during a case. The Association Agreement is part of Polish law and there is no doubt that an EU company or national that is subject to discriminatory treatment could invoke it and use the recent decisions of the European Court of Justice as a strong argument to support its case before the Polish courts. Michéle Fajtmann, a member of the Brussels and New York bars, is responsible for European law practice at White & Case W. Daniłowicz, W. Jurcewicz i Wspólnicy - Kancelaria Prawna Spółka komandytowa
