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WELMA's mailservice no. 2 - 2015 - Special Edition

Dear newsletter reader

The special English editions of WELMA’s newsletter focuses on WELMA’s research themes and provide research-based insight into new trends and developments in research, legislation, case law, reports etc. This edition is prepared with assistance of project assistant Anders Trebbien Daugaard. We hope you will enjoy it.

Kind regards,

Prof. dr.jur Mette Hartlev, Head of Centre

In this issue

1. Research trends

Project description – EU citizenship and equal treatment

Project description - Corporate responsibility for the employee's physical health - legal instruments in a prevention perspective

Project description - Cross-disciplinary education at the University of Copenhagen

Project description - Research based study programs

2. Regulation

European Standard for aesthetic surgery services

3. Case law

Combating benefit tourism - The Court of Justice’s ruling in case C- 333/13 Dano, delivered on 11 November 2014

Case C-354/13, Fag og Arbejde (FOA) v Kommunernes Landsforening (KL) [2014]

1. Research trends

WELMA is so fortunate to have welcomed a number of new researchers. Below you will find descriptions of their research projects.

Project description – EU citizenship and equal treatment

By PhD Fellow Katarina Hylten-Cavallius

EU citizenship is the status conferred by EU law to all nationals of the Union’s Member States. With that status, comes the primary right to move and take up residence freely, anywhere in the Union. To make the enjoyment of this right effective, migrant Union citizens are to be protected from discriminatory treatment on grounds of nationality, in other words, a right to equal treatment, generally expressed in Article 18 TFEU. Said provision has in the past proven to grant protection from disadvantageous conditions for migrant Union citizens who were seeking access to social benefits and assistance in host Member States. However, the Free Movement Directive 2004/38 has been adopted, conditioning the right to equal treatment with the fulfilment of the Directive’s requirements for lawful residence in a host Member State. Cases like C-140/12 Brey and C-333/13 Dano indicate that a migrant Union citizen’s right to equal treatment, is increasingly dependent on the migrant’s fulfilment of, among others, the requirement of being economically self-sufficient. This PhD project seeks to analyse the conditions that migrant Union citizens have to fulfil, in law and in practice, for reliance on equal treatment. As a case-study, the administrative and judicial practices of the two Scandinavian Member States, Sweden and Denmark, are analysed and compared. The aim is to add to the knowledge of what it means to be a migrant Union citizen and effectively exercise the right to free movement.

Project description - Corporate responsibility for the employee's physical health - legal instruments in a prevention perspective

By PhD Fellow Nicole Christiansen

The core of the legal regulation of corporate responsibility and obligations are health and safety legislations, aimed at preventive actions that focus on the risk factors in a workplace. In addition, many companies have developed a “healthy” or “green” profile and have shown an increased focus on health-promoting actions in the workplace. This development takes place within the labour relations system of collective agreements and on the basis of the employer's general managerial authority. While the preventive actions based on health and safety legislation is focused on occupational accidents and diseases, the actions taken within the labour relations system often deal with health in general, by for example offering healthy food in the office canteen or the opportunity to exercise at the job. This leaves us with a very complex picture of the legal regulation and the different instruments used to prevent health-related issues both occupational and general.

The purpose of the project is therefore to assess and analyse the overall legal regulation. The focus will be on the interaction between the health and safety legislation and labour law/managerial authority. The two main areas are, however, increasingly supplemented by social law, health law and soft law which have had an impact on the legal formation.

The project seeks to investigate and analyse not only the corporate responsibility but also the corporate right to introduce actions to prevent physical health-issues as well as the employee’s rights to oppose those actions.

Project description - Cross-disciplinary education at the University of Copenhagen

By Postdoc Werner Schafke

Research coordinator: Associate professor Jakob v. H. Holtermann

The aim of this project is to expand the possibilities for students of law to develop a more diversified disciplinary identity that is more open to interdisciplinary perspectives meeting the requirements of a more flexible and variable job market. In order to achieve this goal, the project will develop course offers that introduce students to methods from other disciplines applied to the legal field. Another aim is to open the master program in legal studies to both students and teachers from other faculties of UCPH.

Current activities include the preparation of a questionnaire about interdisciplinary and interfaculty teaching activities involving lecturers from the Faculty of Law, and the evaluation and further development of the BA-programs course on legal epistemology.

You can find more information on the project here

Project description - Research based study programs

By Postdoc Werner Schafke

Research coordinator: Associate Dean of Education Stine Jørgensen

Legal studies are often taught along a strict taxonomy of legal fields, while actual legal problems encountered by the legal practitioner often cross individual fields and demand the competence to apply and connect knowledge from different fields. The strategy of the Faculty of Law is to facilitate students’ ability to work problem oriented, MA-students will be able to choose their courses from newly established “coherent modules” amounting to 30 ECTS-points. Because of this, lecturers will now have to keep in mind that their individual course is situated in a cluster of courses that are supposed to train their students in a common field of expertise and in common competencies, with teaching containing more project work than accumulation of facts.

This projects aim at developing 5–7 of these modules, offering advice and practical help to their various lecturers and course-responsibles, including evaluation of the courses, and further training in project oriented teaching for lecturers.

You can find more information on the project here

2. Regulation

European Standard for aesthetic surgery services

By PhD Fellow Diana Nacea

The European Committee for Standardization (CEN) has announced the publication of a recently adopted European standard for aesthetic surgery services (the Standard) at the end of June 2015. The regulation, applicable in the 28 EU Members States, FYROM, Iceland, Norway, Switzerland and Turkey, will replace any previous national standards, at the date of the publication.

A soft law instrument, the Standard is optional for those offering the services that fall within its scope and it does not replace national law. However, its provisions reflect the agreement reached by European stakeholders regarding the good practices in this area, and it can be used as a benchmark for assessing the quality of provided services. Country specific guidance on the application of the Standard shall be made available by CEN's members, Dansk Standard being the Danish national standardisation body.

Practitioners should note that the guidelines are procedure centered, they address only the aesthetic surgical services and subsequent recommendations for non-surgical interventions will be covered by a separate project. Nevertheless, the Standard is comprised of exhaustive requirements covering the activity of medical professional, potential associated advisors, as well as consultants in the financial and advertising industries.

Attention was given to the qualification of medical practitioners directly involved in the provisions of surgical services, the facilities in which these activities are to be carried out, the means and manners of interacting with patients.

Aiming at increasing patients’ safety, the Standard shall introduce a list of minimum parameters for safety measures, infrastructure, personal competencies of professionals offering advice and services, and more importantly a classification of risks, procedures and expected types of anesthesia.

Medical tourism, financial incentives and special insurance services have also been tackled, with a strong emphasis put on patients’ autonomy and full disclosure of potential difficulties, complications, or dissatisfaction with the results.

A ‘cool off’ period between the first consultation and the surgical intervention is expected to be introduced in countries that have not already adopted this measure, such as the case of Denmark.

Exceptions from the text of the Standard have been detailed by several country representatives and constitute an annex to the main text, meaning that these latter ‘deviations’ shall take precedence over the new norms, in the circumstances described for each individual case.

Last, but not least, the Standard is expected to enclose a bibliography describing other standards that might regard medical devices, medical equipment and information security requirements implicitly used.

Link to Dansk Standard

3. Case Law

Combating benefit tourism - The Court of Justice’s ruling in case C- 333/13 Dano, delivered on 11 November 2014

By Associate Professor Catherine Jacqueson and PhD Fellow Katarina Hyltén-Cavallius

The Dano-ruling, delivered on 11 November 2014, was much awaited and its outcome stirred headlines across the EU Member States. The UK Prime Minister Cameron called the ruling “common sense” as the European Court of Justice sets limits to a Union citizen’s right to equal treatment when claiming social assistance from a host Member State, thereby tackling the issue of “benefit tourism”.

The questions, referred to the Court for a preliminary ruling by a German court (Sozialgericht Leipzig), concerned a request for a subsistence allowance and a family allowance. German authorities had refused to grant them to the Romanian national Mrs. Dano and her son Florian. Mrs. Dano, who had most recently entered German territory in 2010, had not worked in Germany, nor shown any sign of seeking employment and she was lacking the sufficient economic resources to fulfil the requirements for lawful residence under the Citizenship Directive (2004/38). Under these conditions, it was in accordance with national legislation to refuse Mrs. Dano the requested benefits.

The main question was whether Union citizenship and the prohibition of nationality discrimination precludes national legislation under which nationals of other Member States, who are not economically active, are excluded from entitlement to certain social assistance benefits although those benefits are granted to nationals of the Member State who are in the same situation (para. 56). The Court concluded that the German legislation complied with EU law. It held that, Union citizens, who do not fulfil the conditions for lawful residence in the Directive, do not benefit from the right to equal treatment (paras. 61-69). The Court went on to say that there is a link between the requirement of having sufficient resources as a condition for lawful residence and the concern not to create a burden on the social assistance systems of the Member States. Economically inactive Union citizens, who exercise their right to freedom of movement solely in order to obtain another Member State’s social assistance, although they do not have sufficient resources to claim a right of residence, may therefore be refused social benefits by the Member State. (paras.77-78). The German authorities were therefore right to deny Mrs. Dano and her son the requested benefits.

A noteworthy aspect of the ruling is the Court’s strict and exclusive emphasis on the lawfulness of the residence. Lawful residence could only stem from EU law and the conditions of the Citizenship Directive had to be fulfilled. The Court did not try to ‘save’ Mrs Dano. Indeed, it did not give any consideration to the fact that Mrs. Dano had been granted a residence permit of unlimited duration by the German authorities before claiming the benefits in question. This is a deviation from previous case law (see cases C-85/96 Sala and C-453/02 Trojani) where the Court referred to the primary law citizenship right to move and reside freely and found that lawful residence according to national law is enough for a Union citizen to rely on the right to equal treatment in Article 18 TFEU.

Read more at the BEUCITIZEN project's website

Case C-354/13, Fag og Arbejde (FOA) v Kommunernes Landsforening (KL) [2014]

By PhD Fellow Katharina Eva Ó Cathaoir

In December 2014, the Court of Justice of the European Union (CJEU) issued a preliminary ruling addressing, firstly, whether obesity is a protected ground of non-discrimination, and, secondly, whether obesity can amount to a disability.

Karsten Kaltoft worked as a child minder for the Municipality of Billund, Denmark for approximately 15 years. For the entirety of his employment, Kaltoft had obesity (i.e. a BMI of over 30). Kaltoft was dismissed in November 2010. He petitioned the District Court of Kolding for compensation, arguing that he had been dismissed, and as such discriminated against, due to his obesity. The Municipality denies that Kaltoft’s weight was a factor in his dismissal. The Danish Court stayed the proceedings and referred a number of questions to the CJEU for a preliminary ruling under Article 267 TFEU.

Firstly, the CJEU concluded that Union law does not lay down a general principle of non-discrimination on grounds of obesity in relation to employment and occupation. No provisions of the TEU or TFEU, or secondary legislation of the EU, specifically prohibit discrimination on grounds of obesity, including neither Article 10 TFEU nor Article 19 TFEU. As dismissal due to obesity does not fall within the competence of the EU, the Charter of Fundamental Rights of the EU is inapplicable.

Secondly, the Court defined disability in the context of the United Nations Convention on the Rights of Persons with Disabilities as “a limitation which results in particular from long-term physical, mental or psychological impairments which in interaction with various barriers may hinder the full and effective participation of the person concerned in professional life on an equal basis with other workers”. Disability does not only mean the impossibility of exercising a professional activity, but also a “hindrance” in doing so. Furthermore, the extent to which a person may or may not have contributed to his disability is irrelevant.

The Employment Equality Directive (2000/78/EC) protects workers from discrimination on grounds of religion or belief, disability, age or sexual orientation. Obesity in itself is not a disability under the Directive as, by its nature, it does not necessarily cause a limitation. However, obesity can be a disability if it entails a limitation which results in particular from physical, mental or psychological impairments that in interaction with various barriers may hinder the full and effective participation of that person in professional life on an equal basis with other workers, and the limitation is a long-term one. This could be due to, for example, reduced mobility or the onset of medical conditions preventing the individual from working, or causing discomfort while working, could amount to a disability.

In his Opinion of 17 July 2014 (discussed here), Advocate General (AG) Jääskinen came to the same conclusion as the Court, that obesity, is not in itself, a disability. However, the AG suggested that only obesity of a certain severity, i.e. class III obesity, will result in limitations, such as mobility, endurance and mood, amounting to a disability. The CJEU declined to adopt a test which could assume persons with a certain BMI and over have a disability. Instead, the Court focused on the effect of the individual’s obesity. While the BMI approach offers more clarity, it obscures the key determinant of functionality.

The judgment does not appear to fundamentally alter the state of the art but may lead to an increased awareness on the part of employees and employers of their respective rights and duties. On the other hand, the judgment has been accused of creating uncertainty and excessive burdens for employers. It is for the Danish Court to determine whether Kaltoft’s obesity entailed a limitation that hindered his full and effective participation in professional life on an equal basis to others. It is expected to reach a decision toward the end of 2015.

A detailed analysis of the judgment appears in the forthcoming edition of the European Journal of Risk Regulation.

Read the judgment here

Kind Regards, 

WELMA - CENTER FOR LEGAL STUDIES IN WELFARE AND MARKET

University of Copenhagen. Studiestræde 6, 1455 København K.

+45 35 32 26 26 - jura.ku.dk/welma

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