Explanatory Memorandum to COM(2008)636 - Application of the principle of equal treatment between men and women engaged in an activity in a self-employed capacity - Main contents
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This page contains a limited version of this dossier in the EU Monitor.
| dossier | COM(2008)636 - Application of the principle of equal treatment between men and women engaged in an activity in a self-employed capacity. |
|---|---|
| source | COM(2008)636  |
| date | 03-10-2008 |
The aim of this proposal is to change the Community legal framework concerning the application of the principle of equal treatment between women and men for self-employed workers and their spouses. This proposal will repeal Directive 86/613/EEC i and will be applicable as regards those aspects not covered by Directives 2006/54/EC, 2004/113/EC and 79/7/EEC, in order to implement more effectively the principle of equal treatment between women and men engaged in an activity in a self-employed capacity, or contributing to the pursuit of such an activity.
The Commission announced a review of Directive 86/613/EEC in its legislative work programme for 2008 (forward programming 2008, item 2008/EMPL/021).
In its Report i on the implementation of Directive 86/613/EEC, the Commission concluded that the practical results of the implementation of the Directive were ‘not entirely satisfactory when measured against the prime objective of the Directive, which was a general improvement in the status of assisting spouses.’
In its Roadmap for equality between women and men i, the Commission announced that in order to improve governance of gender equality, it would ‘review the existing EU gender equality legislation not included in the 2005 recast exercise (...) with a view to updating, modernising and recasting where necessary’. Directive 86/613/EEC was not included in the recasting exercise.
In December 2007 i, the Council called on the Commission to ‘consider the need to revise, if necessary, Council Directive 86/613/EEC in order to ensure the rights related to motherhood and fatherhood of self-employed workers and their helping spouses.’
The European Parliament has consistently called on the Commission to review the Directive i, in particular to improve the situation of assisting spouses in agriculture.
The 2000 Lisbon European Council set a strategic goal for the EU to transform it into the most competitive and dynamic knowledge-based economy in the world, capable of sustainable economic growth with more and better jobs and greater social cohesion.
To achieve its strategic goal of promoting more and better jobs and offering equal opportunities for all, the Union needs to increase entrepreneurship in general and women's entrepreneurship in particular. This has been acknowledged in the Commission Communications ‘Think Small First’[6] and ‘Renewed Social Agenda’[7].
Directive 86/613/EEC covers two different categories of persons, self-employed workers and their assisting spouses. The legal situations for these two categories of persons are different.
For self-employed workers , other legal texts implementing the principle of equal treatment between women and men are applicable in certain areas. Discrimination based on sex is prohibited in social security and other elements of social protection (Directive 79/7/EEC), occupational social security schemes (Directive 86/378/EEC), conditions for access to self-employment (Directives 2002/73/EC and 2006/54/EC) and access to and supply of goods and services (Directive 2004/113/EC).
As far as assisting spouses are concerned, Directive 86/613/EEC is the only legal text applicable at EU level.
In 1994 the Commission adopted a report i on the implementation of Directive 86/613/EEC in which it concluded: 'In strictly legal terms, it appears that Directive 86/613/EEC has been implemented in the Member States. However, the practical result is not entirely satisfactory when measured against the prime objectives of the Directive, which was a general improvement in the status of assisting spouses’. The report also stressed the lack of an overall policy for dealing with the situation of assisting spouses and pointed out that "with a view to the recognition of the work of the spouse (...), the only way in which this objective is likely to be achieved is for spouses to be granted social security entitlements in their own right'.
The aim of this proposal is totally consistent with EU policies and in particular with the Lisbon Strategy for Growth and Jobs. According to the EC Treaty, the Community aims to eliminate inequalities and promote equality between men and women in all its activities. Gender equality lies at the heart of the Lisbon Strategy: since the gender gap in self-employed activities is wide, bridging the gender gap in the field of entrepreneurship is vital if the EU target for the female employment rate is to be met.
Consultation
In preparing this initiative, the Directorate-General for Employment, Social Affairs and Equal Opportunities sought to consult all stakeholders with a potential interest in this matter, both those potentially affected by the initiative and those who would be involved in implementing it.
The Commission accordingly consulted the European social partners, other stakeholders, the Member States and the Advisory Committee on Equal Opportunities for Women and Men.
The organisations consulted expressed divergent views on the review of this Directive. Trade unions and agriculture organisations are in favour of amending the Directive and improve gender equality for self-employed workers and assisting spouses.
The organisation representing agricultural organisations supports equal rights for equal commitment for all partners in farm businesses. On the other hand, organisations representing SMEs and sectoral employers are mostly concerned about the potential costs of any changes and opposed to any changes that would increase social security contributions.
The Advisory Committee on Equal Opportunities for Women and Men (composed of representatives of Member States, European social partners and NGOs), which was also consulted, is of the opinion that the Directive should be amended in order to give assisting spouses a clear professional status, with coverage by social protection schemes, and to provide for paid maternity/paternity leave for self-employed workers and assisting spouses.
The European Women’s Lobby supports the opinion of the Advisory Committee on Equal Opportunities. The Confederation of Family Organisations in the European Union (COFACE) strongly advocates a revision of Directive 86/613/EEC to give self-employed women a maternity leave of a long enough duration to ensure the proper course of a normal pregnancy and physical recovery of the mother after a normal childbirth and to oblige Member States to recognise the contribution of assisting spouses in the family business and to ensure that they benefit from the same level of social protection as the self-employed workers.
The position of Member States is also far from unanimous, some asking for an improvement of the EU legal framework, others stating that they do not see a need to review national legislation on the issues covered by the Directive or the EU legal framework.
The Commission has taken into account, as far as possible, the positions expressed during the consultation, by limiting the intervention to what is absolutely necessary to implement the principle of equal treatment and by assessing carefully the costs and benefits of the different policy options.
In view of the need to review Directive 86/613/EEC, the Commission asked the Network of Independent Legal Experts on the application of Community Law on equal treatment between men and women to produce a report on the implementation of the Directive, on its loopholes and weaknesses and on ways to improve it i.
A study i was commissioned to provide an overview of the situation in the Member States and to assess the costs and benefits of various policy options.
Other studies have been extensively used, in particular Good practices on social protection of new entrepreneurs and assisting partners and the impact on business creation i.
The Impact Assessment Report looked at whether a review of Directive 86/613/EEC would be beneficial, in the light of its objectives, which were mainly to improve the application of the principle of equal treatment between women and men and increase participation of women in self-employed activities.
Three main policy options were identified: no action at EU level, non-binding measures and an amendment to Directive 86/613/EEC.
The report then looked at the impact of the three options. For that purpose, the option to amend the Directive was divided into four further policy options (which are not mutually exclusive):
- improving protection in the event of maternity
- providing leave to care for family members
- recognising the contribution of assisting spouses
- giving national equality bodies competence in the field.
After analysing the impact of each option, the report concluded that the option of not taking any new action at EU level would not meet any of the objectives. It also concluded that non-binding measures should be maintained and developed but were not an alternative to amending the Directive. Revising the Directive was considered to be the sole option that could meet the objectives.
In terms of costs, the impact assessment report came to the conclusion that the costs of the option to grant female self-employed workers maternity leave were low for the 8 Member States which do not already provide for this. The implementation of this option could be neutral for social security if it was entirely paid by the self-employed workers themselves. In that case, the maximum increase in contributions to the social security systems would remain low (from 0.05% in Lithuania to 1.75% in Bulgaria). In practice, the funding of social security comes from different sources (contributions from the self-employed workers and taxation) and therefore the costs would be spread between Member States and self-employed workers.
In any case, the financial impact of the measure can also be reduced by leaving self-employed women the choice to benefit (or not) from maternity leave.
Concerning the option to grant assisting spouses the same level of protection as self-employed workers, the costs for social security schemes could be neutral in at least two cases: if they are entirely passed onto self-employed workers through a proportional increase of their contributions or if Member States opt to impose a distribution of the benefits and contributions within the family business which reflects the percentage input of the self-employed worker and the assisting spouse to the family business. In the latter case, the measure could be neutral in terms of costs and contributions for the social security scheme.
In any case, the financial impact of the measure can also be reduced by leaving assisting spouses the choice to join (or not) the social security scheme applicable to self-employed workers.
The report came to the conclusion that the option that best met the objectives was a proposal for a directive amending Directive 86/613/EEC. Taking into account the costs of the possible options for Member States and self-employed workers the preferred approach comprises:
- providing for a possibility of a period of maternity leave for self-employed women,
- recognising the contribution of assisting spouses to the family business by providing them with the possibility of social protection equivalent to that of their self-employed partners, and
- giving national equality bodies competence in cases of discrimination.
Legal base
In the original Treaty of Rome, Article 119 EC did not apply to self-employed workers. This situation changed with the entry into force of the Amsterdam Treaty. The new paragraph 3 of Article 141 EC now applies to matters of employment and occupation and therefore covers self-employed workers.
Because of this limitation in the scope of Article 119 of the Treaty of Rome, Directive 86/613/EEC was adopted under Articles 100 and 235, two residual legal basis allowing the Council to adopt directives for the approximation of such laws of Member States as directly affect the establishment or functioning of the common market or when an action by the Community has proved to be necessary to attain one of the objectives of the Community and the Treaty has not provided the necessary powers.
However, the present proposal can now be based on the specific legal base, i.e. Article 141 EC.
Article 2 of the EC Treaty provides that promoting equality between men and women is part of the tasks of the European Community.
The low participation of women in self-employment is a matter of gender inequality: women are not equal in the sense that where family responsibilities seem to have a negative impact on women’s participation in entrepreneurship as compared to men.
As far as assisting spouses are concerned, the lack of coverage by social security and the non-recognition of their contribution to the family business give some businesses an unfair competitive advantage, so this initiative would ensure a level playing field throughout Europe.
The EU has already in place Directive 86/613/EEC covering the matters touched upon by this proposal. An EU legal instrument is the only way to ensure a level playing field in Europe. Strongly divergent national legislations, in particular concerning the status of assisting spouses, could lead to an unfair competitive advantage of businesses where the level of protection is lower or inexistent.
This proposal goes no further than necessary to ensure that the aim of the initiative is met.
The proposed Directive is a minimum standards instrument and would set out basic minimum standards whilst allowing those Member States which wished to go further to do so. In particular, the Directive will not require that all assisting spouses are granted the same social security protection as self-employed workers, but that assisting spouses can, at their request , benefit from at least an equal level of protection as self-employed worker. Member States will remain competent to establish the level of contributions and all the arrangements concerning benefits and payments, provided the minimal prescriptions of this Directive are complied with.
This proposal therefore respects the principles of subsidiarity and proportionality, as it is taken at the appropriate level and does not go beyond what is absolutely necessary at EU level in order to achieve the objectives set for the initiative.
Since the aim is to replace an existing Directive, a directive is the most appropriate legal act to do so.
Furthermore, a directive is, in any case, the appropriate instrument that ensures a coherent minimum level of protection in all Member States, while allowing each Member State to decide on the best way to implement the rules.
The Member States are required to communicate to the Commission the text of national provisions transposing the Directive as well as a correlation table between those provisions and the Directive.
This is a text of relevance to the European Economic Area and the Directive will be applicable to the non-EU Member States of the European Economic Area following a decision of the EEA Joint Committee
Contents
- BUDGETARY IMPLICATIONS
- DETAILED EXPLANATION
- Grounds for and objectives of the proposal
- General context
- Existing provisions in the area of the proposal
- Consistency with other policies and objectives on the Union
- 2. CONSULTATION OF INTERESTED PARTIES AND IMPACT ASSESSMENT
- Collection and use of expertise
- Impact assessment
- 3. LEGAL ASPECT
- Subsidiarity and proportionality
- Choice of instrument
- Correlation table
- European Economic Area
- OF THE SPECIFIC PROVISIONS
The proposal has no implications for the Community budget.
Article 1:
Article 1 i is equivalent to Article 1 of Directive 86/613/EEC. It sets out the purpose of the Directive, i.e. to put into effect the principle of equal treatment between men and women engaged in self-employed activities. The Directive covers only those aspects not already covered by Directives 2006/54/EC and 79/7/EEC.
Article 1 i sets the personal scope of the Directive. It is the same as in Article 2 of Directive 86/613/EEC: it covers self-employed workers and assisting spouses.
Article 1 i clarifies that this Directive does not cover the matters covered by Directive 2004/113/EC implementing the principle of equal treatment between men and women in the access to and supply of goods and services. In particular, Article 5 of Directive 2004/113/EC remains applicable to the contracts of insurance and related financial services.
Article 2:
Article 2 regroups all the definitions of the terms used in the Directive. The definitions of self-employed workers and of assisting spouses are taken from Article 2 of Directive 86/613/EEC. The definition of assisting spouses is amended: the words assisting and or life partners are added. The amendment aims to cover all persons recognised as life partners by national law and regularly participating in the activities of the family business, irrespective of marital status. In order to remove ambiguity, partner is replaced by business partner.
The definitions of direct discrimination, indirect discrimination, harassment and sexual harassment are drawn from existing Community law and do not depart from previously agreed approaches in any way. The concepts of direct and indirect discrimination and sex-based and sexual harassment are identical, mutatis mutandis , to those contained in Directives 2000/43/EC, 2000/78/EC, 2002/73/EC, 2004/113/EC and 2006/54/EC.
Harassment on grounds of sex and sexual harassment do not occur solely at the workplace, but also in other areas of an individual's life, including in the context of self-employed activities. As in Directive 76/207/EEC and 2006/54/EC, the two concepts are defined separately because they are distinct phenomena. Harassment based on sex consists of unfavourable treatment of a person related to their sex, though it need not be of a sexual nature. Sexual harassment consists of unwanted physical, verbal or non-verbal conduct of a sexual nature.
Article 3:
Article 3 i sets the meaning of the principle of equal treatment for the purpose of this Directive. It is inspired on Articles 3 and 4 of Directive 86/613/EEC. This provision prohibits any direct or indirect discrimination in relation to the establishment, equipment or extension of a business or the launching of any other form of self-employed activity.
Article 3 i makes it clear that both forms of harassment are deemed discrimination on grounds of sex and therefore prohibited.
Article 3 i indicates that an instruction to discriminate as such is deemed discrimination. A similar provision already exists in Directives 2000/43/EC and 2000/78/EC based on Article 13 EC and in Directive 2006/54/EC, based upon Article 141 i EC and 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.
Article 4:
This provision concerns positive action. Following the model of existing Directives, in particular Directive 2004/113/EC, it confirms that the Member States may maintain or introduce specific measures to compensate for certain disadvantages suffered by individuals of either sex in the area covered by the Directive. Such measures must be shown to be necessary, must be focused on overcoming a specific disadvantage and must be limited in time, being in force no longer than is necessary to deal with the problem identified. For example, women have traditionally experienced greater problems than men in starting up businesses as the result of a range of factors, including the difficulty of raising venture capital and gaining support for the development of business ideas. While the application of the principle of equal treatment is likely to help with this situation, it is unlikely to be sufficient on its own to overcome the disadvantages faced by women in this area. The Commission believes that this Directive should not prohibit the possibility of introducing measures to bridge the gender gap in terms of entrepreneurship in the Member States and that the Member States must therefore be allowed to make such derogation from the principle of equal treatment. Of course, in line with the jurisprudence of the Court of Justice with regard to positive action, these measures may not end up in attributing automatically and unconditionally advantages to women when women and men are qualified.
Article 5:
Article 5 is similar to Article 5 of Directive 86/613/EEC. The main change is the insertion of the words or life partners to make clear that it covers persons recognised as 'life partners' of the self-employed worker by national law irrespective of marital status.
Article 6:
Article 6 is similar to Article 6 of Directive 86/613/EEC. The new provision stipulates that assisting spouses must, at their request, benefit from at least an equal level of protection as self-employed workers. It does not stipulate that self-employed workers are to be covered by any specific social security system. It simply makes it an obligation for assisting spouses to be able, if they so decide, to join the same social security protection applicable to the self-employed worker. Under this Article, the decision to join or not is to be taken by the assisting spouses, Member States are only required to make the choice possible. Member States remain competent to establish the level of contributions and all the arrangements concerning benefits and payments, provided the minimal prescriptions of this Directive are complied with.
Article 7:
Article 7 substantially amends Article 8 of Directive 86/613/EEC. Under the latter as it stands, the Member States are to examine whether, and under what conditions, female self-employed workers and the wives of self-employed workers may, during interruptions in their occupational activity owing to pregnancy or motherhood, have access to services supplying temporary replacements and be entitled to cash benefits under a social security scheme or any other public social protection system.
Article 7 i states that female self-employed workers and assisting spouses should be entitled, at their request, to maternity leave as provided for in Directive 92/85/EEC.
According to Article 7 i and i, such maternity leave is to be paid at a rate at least equivalent to the payment received in the event of sickness, subject to any ceiling laid down by national law. If the person in question does not benefit from sickness allowance, the payment should be equivalent to any appropriate allowance established at national level.
In order to take the specificities of self-employed activities into account, Article 7 i gives self-employed women as far as possible the option of temporary replacement services as an alternative to the financial allowance. This would allow self-employed women to take their maternity leave and pursue their business activity, through a temporary replacement.
Article 8:
Article 8 relates to the defence of rights enabling the obligations under the Directive to be enforced. In particular, it gives people who believe they have suffered discrimination with the possibility of pursuing their claims through administrative and/or judicial proceedings to enforce their right to equal treatment.
The right to legal protection is further reinforced by the possibility of allowing organisations to exercise such rights on behalf of a victim.
Article 9:
Article 9 deals with compensation and reparation. Member States are required to ensure that there is provision in national law for real and effective compensation or reparation, as is the case in existing Directives based on Articles 13 EC and 141 EC.
Article 10:
Article 10 requires Member States to designate national bodies for the promotion of equal treatment in the fields covered by the Directive. It replicates similar provisions of Directives 2000/43/EC, 2002/73/EC, 2004/113/EC and 2006/54/EC.
It provides for a framework for such national bodies, which are to act independently to promote the principle of equal treatment. The Member States may decide that such bodies are to be the same as those provided for in Council Directive 2002/73/EC – and thus now 2006/54/EC - for the labour market and/or in Council Directive 2004/113/EC for access to goods and services. The Member States are free to provide for their establishment at regional or local level, provided that their whole territory is covered by such arrangements.
The proposal for a Directive lays down a number of requirements for such bodies in the Member States, along the lines of what is already set out in the Directives mentioned above.
Article 11:
Article 11 is a standard provision on the need for transparency and to ensure information on the provisions in the field covered by the Directive are brought to the attention of the persons concerned.
Article 12:
This provision is a standard clause establishing that the transposition of the Directive into national law cannot be the motive for a reduction of the level of protection already existing in national law for the persons and matters covered by the Directive.
Article 13:
This provision sets out the procedures for monitoring and reporting on implementation of the principle of equal treatment. The reporting procedures require the Member States to report to the Commission [six years after adoption] and the Commission to report to the European Parliament and the Council one year later.
The impact of the Directive will therefore be carefully assessed and any adjustments needed to the legal framework can then be proposed in a good time.
Article 14:
This provision sets out the procedures for the implementation of the Directive. The Commission proposes that the Member States should in general have two years to transpose the Directive into national law and an additional [two] years to comply with Article 6, dealing with assisting spouses.
In line with recently agreed practice, this Article requires the Member States to notify the text of their national provisions transposing the Directive, together with a correlation table between those provisions and the Directive.
Article 15:
This provision repeals Directive 86/613/EEC from the date set in Article 13 for the implementation of the Directive by Member States.