Explanatory Memorandum to COM(2000)334 - Amendment of Council Directive 76/207/EEC on the implementation of the principle of equal treatment for men and women as regards access to employment, vocational training and promotion, and working conditions - Main contents
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| dossier | COM(2000)334 - Amendment of Council Directive 76/207/EEC on the implementation of the principle of equal treatment for men and women as ... |
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| source | COM(2000)334  |
| date | 07-06-2000 |
1. An equal participation of women and men in the labour market is crucial for attaining equality of women and men in society. Directive 76/207/EEC i is aimed at removing obstacles for women to employment by implementing the principle of equal treatment as regards all aspects of employment, promotion, vocational training and working conditions.
Contents
- 2. The modification of the Treaty (Article 141) reiterates Member State's obligations to adopt measures to ensure the application of this principle
- II. CONTEXT
- 1. General considerations
- 2. New provisions
- 2.1. Sexual harassment
- 2.2. Occupational activities excluded from the scope of the Directive
- 2.3. Positive action measures
- 3. Coherence with proposals based on Article 13 of the Treaty
- III. JUSTIFICATION WITH REGARD TO SUBSIDIARITY
- 35. The Community legislation will have no direct impact on enterprises' operations and will not impose any administrative or legal constraints which could hinder the creation and development of SMEs
- Article 1
- 40. The third amendment concerns the insertion of a subparagraph to paragraph 1 of Article 2
- 43. The sixth amendment concerns the replacement of paragraph 4 of Article 2
- Article 2
- Article 3
2. The modification of the Treaty (Article 141) reiterates Member State's obligations to adopt measures to ensure the application of this principle
3. The proposed Directive puts this obligation in concrete terms and takes account of the case law of the European Court of Justice, which comprises 40 judgments in the last 25 years.
4. The proposed Directive:
- for the first time, clearly defines sexual harassment as discrimination based on sex, at the work place;
- it reinforces protection even when the relationship has ended for employees who complain about discrimination, requires Member States to set up national bodies for the enforcement of equal opportunities and to ensure judicial control of all the rights granted by the Directive as well as to impose adequate sanctions in cases of discrimination;
- clarifies the right of Member States to provide for derogations from the principle of equal access to employment. Member States have the obligation to justify the ban on women in specific jobs when the sex of the worker constitutes a determining factor;
- acknowledges that special protection be granted to women because of their biological condition and their rights to return to the same work place after maternity leave;
- implements Article 141, paragraph 4, of the Treaty by stating that Member States are entitled to adopt positive action measures to promote equality for men and women and should report on their activities regularly.
5. The proposal for a Directive amending Directive 76/207/EEC, in its first Article contains all the proposed modifications, taking into account the recent developments of the Treaty and the case law of the Court. In its second Article, the proposal recalls the role of social partners in the implementation of the principle of equal treatment while Articles 3, 4 and 5 contain the final and standard provisions adapted to the subject of the proposal.
6. Directive 76/207/EEC was adopted on the basis of Article 235 of the Treaty (now 308), because of the lack of a proper legal base for the adoption of secondary legislation in the area of equal opportunities. Many developments justify that the Directive now be amended.
7. First, provision for equal opportunities in the framework of the Treaty has been greatly enhanced since the entry into force of the Treaty of Amsterdam on 1 May 1999. Originally regarded as a means of preventing distortion of competition, equal treatment between men and women is now an explicit objective of the Community enshrined in Article 2 of the Treaty. Further, this provision is complemented by the new Article 3 which imposes on the Community the obligation aimed at eliminating inequalities, and to promote equality, between men and women in all its activities. These Treaty developments constitute an explicit embodiment of the Court's statement that the elimination of discrimination based on sex forms part of fundamental rights i.The Court has stressed that Article 141 forms part of the social objectives of the community, which is not merely an economic union but is at the same time intended, by common action, to ensure social progress and seek constant improvement of the living and working condition. The Court has concluded that the economic aim pursued by Article 141 of the Treaty is secondary to the social aim pursued by the same provision, which constitutes the expression of a fundamental right.
[1977] ECR 1365, para. 27.
8. Since the entry into force of the Treaty of Amsterdam, the Community has been conferred powers by Article 13 to take appropriate action to combat discrimination on a number of different grounds including sex. The Commission has submitted to the Council two proposals for Directives in order to give effect to that provision i. The wording of both proposals i explicitly takes account of the experience in fighting discrimination grounds of sex embodied in Directive 76/207/EEC. Amendment of the latter is therefore needed to ensure coherence between secondary legislation on identical issues, such as the concept of indirect discrimination or the need for Member States to have independent bodies for the promotion of equal treatment, in the same area of employment.
9. The legislator has been given, for the first time, specific legal bases to take appropriate action to combat inter alia, discrimination on grounds of sex (Article 13 of the Treaty) and to adopt measures to ensure the application of the principle of equal opportunities and equal treatment of men and women in matters of employment and occupation (Article 141 i of the Treaty). The latter is a specific legal base as regards all aspects covered by Directive 76/207/EEC.
10. Secondly, a very important and sensitive issue like sexual harassment cannot be ignored any more and must be addressed at Community level.
11. Thirdly, the more than 40 judgments given by the Court on the interpretation of the Directive have shed light on the scope and limitations of some provisions which are currently loosely worded, such as those on occupational activities which can be excluded from the scope of the Directive, on the protection of the special condition of women and on positive action measures which can be adopted by Member States.
12. As regards the latter issue, the Commission submitted to the Council in 1996 a proposal i amending Directive 76/207/EEC, in order to put an end to the controversy to which the Kalanke case had given rise and to limit the negative consequences of that ruling. The current proposal, which takes into account the new Treaty developments and has a wider objective, makes obsolete the former proposal.
13. Taking the Court's jurisprudence into account in the Directive itself is desirable in order to achieve legal certainty.
14. Sexual harassment at the workplace is not a new phenomenon. However, it has so far been largely ignored by legislators, at both national and Community level. In the eighties, a first study on this serious problem was commissioned by the Commission i. Ten years later, the Commission asked for a new study to be conducted in order to evaluate the eventual changes which have occurred in the Member States during that period.
15. The study i aimed to present an overview of all relevant research projects conducted in the Member States between 1987 and 1997 (74 surveys and qualitative studies). At least two striking conclusions can be drawn from this study. Firstly, the lack of a universal definition of what constitutes sexual harassment makes it more difficult to objectively measure and quantify it. However, the percentage of female employees who have received unwanted sexual proposals (experienced some form of sexual harassment) can be estimated at between 40% and 50%. Secondly, the level of awareness of this phenomenon in the Member States is very poor. This lack of awareness is illustrated by the lack of proper legislation addressing the issue in most Member States.
16. Community institutions did not remain inactive as regards the phenomenon of sexual harassment. Over the last fifteen years, they have undertaken a variety of initiatives to prevent and combat sexual harassment at work:
- the European Parliament resolution of 1986 on violence against women;
- the 1990 Council resolution on the protection of the dignity of women and men at work in which the Council acknowledged that sexual harassment may be contrary to the principle of equal treatment within the meaning of Directive 76/207/EEC, and therefore constitutes discrimination;
- the 1991 Commission recommendation on protecting the dignity of women and men at work with its annexed Code of Practice;
- the 1991 Council declaration on the implementation of the Commission's recommendation and Code of Practice;
- the 1994 European Parliament resolution on a new post of a confidential counsellor at the workplace;
- the fourth medium-term action programme for equal opportunities for men and women (1996-2000) adopted by the Council on 22 December 1995 which emphasises the need for decisive action to combat sexual harassment.
17. The Commission drafted an 'Evaluation report on the Commission Recommendation concerning the protection of dignity of men and women at work'. That report showed that there is a need to go further on this matter. That is why on 24 July 1996 the Commission decided to consult the social partners on a text outlining the Community institutions' past initiatives and proposals on the prevention of sexual harassment at work. The social partners all confirmed the importance of protecting the dignity of the individual worker. A majority agreed that sexual harassment was a widespread problem that had to be prevented in the workplace both for the sake of the individual and of the company. Opinions differed however on the best way to achieve this objective. On 19 March 1997, the Commission launched the second stage consultation with the social partners on the possibility of drawing up a comprehensive policy at EU level to fight against sexual harassment in the workplace, but the social partners did not agree on the need to negotiate a collective agreement on this issue.
18. In this context, it is worth mentioning that some third countries have legislation explicitly prohibiting sexual harassment i. In these countries, sexual harassment is regarded as discrimination on grounds of sex. However, the jurisprudence shows that there is no settled case-law on what constitutes sexual harassment, and that is often a question of fact to be considered by the national judge i.
[1995] ECR II-43.
According to the Council, the European Parliament and the Commission, sexual harassment constitutes a breach of the principle of equal treatment and is an affront to the dignity of women and men at work. The European Commission's Code of Practice defines sexual harassment as conduct affecting the dignity of women and men at work: 'Sexual harassment means unwanted conduct of a sexual nature, or other conduct based on sex affecting the dignity of women and men at work. This includes unwelcome physical, verbal or non-verbal conduct'. This definition inspired those definitions found in the proposals for directives based on Article 13, which concern harassment as discrimination on grounds other than sex. For reasons of coherence with other directives, the present proposal defines sexual harassment in a similar way.
19. Since the entry into force of the Directive, the Court has given three important judgments i on the interpretation of Article 2 i of the Directive which allows Member States to exclude from its field of application those occupational activities and, where appropriate, the training leading thereto, 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.
[1999] ECR I-0000 and judgment of 11 January 2000 in Case C-285/98 Kreil [2000] ECR I-0000.
20. The Jonhston case concerned the fact that policemen had to carry fire-arms in the regular course of their duties but that women were not equipped with them, did not receive training in the handling and use of fire-arms and that general policing duties were carried out only by armed male officers. The Sirdar case concerned the exclusion of women from the Royal Marines (British Army). The Kreil case concerned the exclusion of women from nearly all military jobs of the German army (Bundeswehr).
21. In Johnston, the Court ruled that:
- the derogation must be interpreted strictly and applied in accordance with the principle of proportionality; that principle requires that derogations remain within the limits of what is appropriate and necessary for achieving the aim in view and requires the principle of equal treatment to be reconciled as far as possible with the requirements of public safety which constitute the decisive factor as regards the context of the activity in question;
- when they decide to exclude an activity from the scope of the Directive, Member States have a duty to assess periodically the activities concerned in order to decide whether, in the light of social developments, the derogation from the general scheme of the Directive may still be maintained. However, this should be examined on a case-by-case basis;
- the principle of equal treatment for men and women is not subject to any general reservation as regards measures taken on grounds of the protection of public safety, apart from the possible application of Article 297 of the Treaty which concerns a wholly exceptional situation.
22. In Sirdar, the Court added that:
- depending on the circumstances, national authorities have a certain degree of discretion when adopting measures which they consider to be necessary in order to guarantee public security in a Member State;
23. and in Kreil, the Court specified that:
- only specific activities may be excluded i.
[1988] ECR 3559.
24. The main conclusion which can be drawn from this jurisprudence is that the 'certain degree of discretion' enjoyed by Member States to exclude some occupational activities from the scope of the Directive is subject to strict scrutiny. First, the exclusion can only concern specific posts. Secondly, Member States are under the obligation to reassess periodically the legitimacy of the exclusion, so that it may be authorised at a certain date, but become illegal subsequently.
25. This can be illustrated with the situation of midwives. In 1983, the Court ruled that 'at the present time personal sensitivities may play an important role in relations between midwife and patient' so that the United Kingdom had not exceeded the limits of the power granted to the Member States by the Directive in excluding men from that profession and the training leading thereto i. However, even at that time, the United Kingdom stated that it intended to progressively fully open up the profession of midwives to men. More than 15 years later, that profession is fully open to men in all the Member States.
[1983] ECR 3431.
26. The importance of the requirement of reassessment was best affirmed by the Court in the Commission v France case i in which it stated that the exceptions must be sufficiently transparent so as to permit effective supervision by the Commission and that they must be capable of being adapted to social developments.
27. In accordance with the above case law, where a difference of treatment, which relates to a genuine occupational qualification exists, it is not to be considered as discrimination. The term 'genuine occupational qualification' should be construed narrowly to cover only those occupational requirements where a particular sex is necessary for the performance of the activities concerned. Thus, these cases of difference of treatment on grounds of sex should be exceptional.
28. In Directive 76/207/EEC, Article 2 i provides that it will be without prejudice to measures to promote equal opportunity for men and women, in particular by removing existing inequalities which affect women's opportunities in the areas covered by the Directive.
29. That provision was interpreted by the Court in three judgments, in the Commission v France case i, the Kalanke case and the Marschall case i. From this case-law, some conclusions can be drawn, and more recently in the Badek case i:
[1988] ECR 6315.
[1997] ECR I-6363.
- the possibility to adopt positive action measures is to be regarded as an exception to the principle of equal treatment;
- the exception is specifically and exclusively designed to allow for measures which, although discriminatory in appearance, are in fact intended to eliminate or reduce actual instances of inequality which may exist in the reality of social life;
- automatic priority to women, as regards access to employment or promotion, in sectors where they are under-represented cannot be justified;
- conversely, such a priority is justified, if it is not automatic and if the national measure in question guarantees equally qualified male candidates that their situation will be the subject of an objective assessment which take into account all criteria specific to the candidates, whatever their gender.
30. That provision has however been superseded by Article 141 i which states that 'with a view to ensuring full equality in practice between men and women in working life, the principle of equal treatment shall not prevent any Member States from maintaining or adopting measures providing for specific advantages in order to make it easier for the under-represented sex to pursue a vocational activity or to prevent or compensate for disadvantages in professional careers' i.
The publication of periodical Commission reports on the implementation of the possibility offered by Article 141 i, as proposed in the present proposal, will help Member States to compare the way it is implemented and citizens to have a full picture of the situation existing in each Member State.
31. Prohibition of discrimination on grounds of sex is mentioned in both Articles 13 and 141 of the Treaty. The latter is a specific legal base in the area of employment and occupation.
32. However, legislation ensuring equal treatment between men and women in the area of employment adopted on the basis of Article 141 of the Treaty should use the same concepts as those used in the (proposed) legislation, based on Article 13, to combat discrimination on grounds other than sex, insofar as the latter also concerns the area of employment, in order to ensure legal and political coherence between both pieces of legislation, which have similar objectives.
33. The use of a Community legislative instrument is in keeping with the principle of subsidiarity. The amendment of Directive 76/207/EEC is the only way to ensure that the abundant case-law of the Court of Justice is uniformly and effectively applied at national level. Moreover, there is a requirement to ensure coherence at Community level of legislation implementing the principle of equal treatment. In the case of sex discrimination, this can only be achieved through the modification of Directive 76/207/EEC.
34. The content of the proposed instrument also complies with the principle of proportionality, as it lays down minimum requirements, for example as regards sexual harassment, giving the Member States the greatest possible latitude in determining how the effective application of the principle of equal treatment in this respect is to be applied.
35. The Community legislation will have no direct impact on enterprises' operations and will not impose any administrative or legal constraints which could hinder the creation and development of SMEs
IV. COMMENTARY ON THE ARTICLES
36. The proposal for a Directive is based on Article 141 i which empowers the Community to adopt measures to ensure the application of equal treatment of men and women in matters of employment and occupation.
37. Article 1 contains all the proposed amendments to Directive 76/207/EEC.
38. The first amendment concerns the insertion of a paragraph in Article 1. This paragraph concerns the objectives of the Directive, concretely implements the objective of mainstreaming set out in Article 3 of the EC Treaty.
39. The second amendment, which concerns the insertion of a new Article 1a making explicit that sexual harassment constitutes discrimination on grounds of sex and defining what would constitute sexual harassment, is inspired by the Code of Good Practice i and the Directive based on Article 13.
The Article gives a definition of the notion of indirect discrimination coherent with Directive 97/80/EC and that of the (proposed) legislation, based on Article 13 of the Treaty, to combat discrimination on grounds other than sex in matters of employment.
41. The fourth amendment concerns exceptions related to the genuine occupational qualifications.
Taking into account the case law of the Court and the new proposal for a Directive based on Article 13 of the Treaty, the Article specifies to what extent differences of treatment are permitted.
42. The fifth amendment concerns the addition of a new subparagraph to paragraph of existing Article 2 i. It makes explicit the right of the woman who has given birth to return to her job, or to an equivalent post, with the same working conditions as those which applied when she was on maternity leave. (see in particular, Case 184/83 Hofmann v Barmer Ersatzkasse [1984] ECR 3047, paragraph 25, Case C-421/92 Habermann-Beltermann [1994] ECR I-1657, paragraph 21, and Case C-32/93 Webb v EMO Air Cargo [1994] ECR I-3567, paragraph 20). This amendment complements the prohibition of dismissal from the beginning of the pregnancy to the end of maternity leave provided for in Article 10 of Directive 92/85/EC.
This Article creates an obligation for the Commission to periodically report on the best of information provided by Member States on the use by Member States of the possibility granted to them by Article 141 i of the Treaty to adopt positive action measures with a view to ensuring full equality in practice.
44. The seventh amendment concerns the addition of a new paragraph (d) to Article 3, paragraph 2, of the original Directive. This Article is inspired by Article 3, paragraph (d), of " a proposal for a Council Directive establishing a general framework for equal treatment in employment and occupation (COM(1999)565 final). This amendment refers to membership of organisations of workers or employers or any other organisations whose members carry on a particular profession. The paragraph (d) ensures that there is no discrimination on the basis of sex concerning either the membership and involvement in those organisations or the benefits provided by these kinds of bodies.
45. The eighth amendment concerns the replacement of all the original wording of Article 6.
The new wording of Article 6 incorporates in the Directive two important elements of the Court's case-law as regards enforcement procedures. Firstly, as regards the right to judicial protection even after the employment relationship has ended, and secondly, as regards the right of a victim of discrimination to compensation which can guarantee real and effective judicial protection, has a real deterrent effect on the employer and must in any event be adequate in relation to the damage sustained.
46. The ninth amendment consists of the insertion of a new Article 8a.
The new Article reinforces the right to legal protection granted by the preceding Article. It provides for a framework applicable to independent bodies at national level which would contribute to the promotion of the principle of equal treatment. A Member State may also decide that such bodies should be established on a regional or local level, on condition that the entire territory of the Member State is covered by such arrangements.
The proposed Directive establishes a number of minimum requirements for such independent bodies in the Member States. Member States are free to decide on the structure and functioning of such bodies in accordance with their legal traditions and policy choices. The independent bodies may be specialised agencies or may form part of wider bodies, whether pre-existing or newly established.
Further, the right to legal protection is further reinforced by the possibility of allowing these independent bodies to pursue claims through an administrative and/or a judicial procedure on behalf of the victim.
The right to legal protection is further reinforced by the possibility of allowing organisations to exercise such rights on behalf of a victim.
47. The tenth amendment consists of the insertion of a new Article 8b.
The Commission remains very committed to strengthening the role of the social partners in the fight against discrimination. This is why the proposed Directive, in accordance with the proposals for Directives based on Article 13, requires Member States to encourage social partners to contribute to the implementation of the principle of equality of treatment by adopting collective agreements laying down anti-discrimination provisions.
Social partners can also have an important role to play in monitoring workplace practices. Possible measures could include the conclusion of agreements between social partners and the adoption of codes aimed at preventing discrimination on the basis of sex.
48. Article 8c is a standard Article relating to penalties.
49. The Article contains the standard final clauses of Directives adapted to the present proposal for a European Parliament and Council Directive.
It states in the first paragraph that all Member States shall bring into force the laws, regulations and administrative provisions necessary to comply with the Directive by 1 January 2002, or shall ensure by that date at the latest that management and labour introduce the requisite provision by way of agreement. Member States shall take all necessary steps to enable themselves at all times to guarantee the results imposed by this Directive.
In the second paragraph the Article states that Members States shall adopt the measures with a specific reference to this Directive.
In the third paragraph the Article states that Members States shall communicate within three years of the entry into force of this Directive, all the information necessary to draw up a report to the European Parliament and the Council on its application.
The fourth paragraph of the Article complements new paragraph 4 of Article 2 and obliges Member States to report to the Commission on the evolution of their legislation as regards positive action, in order to allow the Commission to periodically report to the Council on this issue.
50. This Article is a standard Article that the Directive is addressed to the Member States.