1986L0378 — EN — 09.03.1997 — 001.002 — 1
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►B COUNCILDIRECTIVE
of24July1986
on the implementation of the principle of equal treatment for men and women in occupational
socialsecurityschemes
(86/378/EEC)
(OJ L 225, 12.8.1986, p. 40)
Amended by:
Official Journal
No page date
►M1Council Directive 96/97/EC of 20 December 1996 L 46 20 17.2.1997
Corrected by:
►C1Corrigendum, OJ L 283, 4.10.1986, p. 27 (86/378/EEC)
►C2Corrigendum, OJ L 241, 3.9.1997, p. 8 (86/378/EEC)
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COUNCILDIRECTIVE
of24July1986
on the implementation of the principle of equal treatment for men
andwomeninoccupationalsocialsecurityschemes
(86/378/EEC)
THE COUNCIL OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Economic
Community, and in particular Articles 100 and 235 thereof,
Having regard to the proposal from the Commission(1),
Having regard to the opinion of the European Parliament(2),
Having regard to the opinion of the Economic and Social
Committee(3),
Whereas the Treaty provides that each Member State shall ensure theapplication of the principle that men and women should receive equalpay for equal work; whereas ‘pay’ should be taken to mean theordinary basic or minimum wage or salary and any other consideration,
whether in cash or in kind, which the worker receives, directly of (SIC!
or) indirectly, from his employer in respect of his employment;
Whereas, although the principle of equal pay does indeed apply
directly in cases where discrimination can be determined solely on thebasis of the criteria of equal treatment and equal pay, there are alsosituations in which implementation of this principle implies the adop-tion of additional measures which more clearly define its scope;
Whereas Article 1 (2) of Council Directive 76/207/EEC of 9 February
1976 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(
4) provides that, with a view to
ensuring the progressive implementation of the principle of equal treat-ment in matters of social security, the Council, acting on a proposalfrom the Commission, will adopt provisions defining its substance, its
scope and the arrangements for its application; whereas the Council
adopted to this end Directive 79/7/EEC of 19 December 1978 on theprogressive implementation of the principle of equal treatment formen and women in matters of social security(
5);
Whereas Article 3 (3) of Directive 79/7/EEC provides that, with a viewto ensuring implementation of the principle of equal treatment in occu-pational schemes, the Council, acting on a proposal from theCommission, will adopt provisions defining its substance, its scope
and the arrangements for its application;
Whereas the principle of equal treatment should be implemented in
occupational social security schemes which provide protection againstthe risks specified in Article 3 (1) of Directive 79/7/EEC as well asthose which provide employees with any other consideration in cashor in kind within the meaning of the Treaty;
Whereas implementation of the principle of equal treatment does not
prejudice the provisions relating to the protection of women by reasonof maternity,1986L0378—EN—09.03.1997—001.002—2
(1) OJ No C 134, 21. 5. 1983, p. 7.
(2) OJ No C 117, 30. 4. 1984, p. 169.
(3) OJ No C 35, 9. 2. 1984, p. 7.
(4) OJ No L 39, 14. 2. 1976, p. 40.
(5) OJ No L 6, 10. 1. 1979, p. 24.
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HAS ADOPTED THIS DIRECTIVE:
Article 1
The object ofthis Directive is to implement, in occupational social
security schemes, the principle ofequal treatment f or men and women,hereinafter referred to as ‘the principle of equal treatment’.
Article 2
1. ‘Occupational social security schemes’ means schemes not
governed by Directive 79/7/EEC whose purpose is to provide workers,
whether employees or self-employed, in an undertaking or group ofundertakings, area (SIC! an area) ofeconomic activity, occupationalsector or group ofsectors with benef its intended to supplement thebenefits provided by statutory social security schemes or to replace
them, whether membership ofsuch schemes is compulsory or optional.
2. This Directive does not apply to:
(a) individual contracts for self-employed workers;
(b) schemes for self-employed workers having only one member;
(c) insurance contracts to which the employer is not a party, in the case
ofsalaried workers;
(d) optional provisions of occupational schemes offered to participants
individually to guarantee them:
— either additional benefits, or
— a choice of date on which the normal benefits for self-employed
workers will start, or a choice between several benefits;
(e) occupational schemes in so far as benefits are financed by
contributions paid by workers on a voluntary basis.
3. This Directive does not preclude an employer granting to persons
who have already reached the retirement age for the purposes ofgranting a pension by virtue ofan occupational scheme, but who havenot yet reached the retirement age for the purposes of granting astatutory retirement pension, a pension supplement, the aim ofwhich is
to make equal or more nearly equal the overall amount ofbenef it paid to
these persons in relation to the amount paid to persons ofthe other sex inthe same situation who have already reached the statutory retirementage, until the persons benefiting from the supplement reach the statutoryretirement age.
Article 3
This Directive shall apply to members ofthe working population,including self-employed persons, persons whose activity is interruptedby illness, maternity, accident or involuntary unemployment and persons
seeking employment, to retired and disabled workers and to those
claiming under them, in accordance with national law and/or practice.
Article 4
This Directive shall apply to:
(a) occupational schemes which provide protection against the
following risks:
— sickness,
— invalidity,
— old age, including early retirement,— industrial accidents and occupational diseases,— unemployment;
(b) occupational schemes which provide for other social benefits, in
cash or in kind, and in particular survivors' benefits and family
allowances, ifsuch benef its are accorded to employed persons and1986L0378—EN—09.03.1997—001.002 —3
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thus constitute a consideration paid by the employer to the worker
by reason of the latter's employment.
Article 5
1. Unter (SIC! Under) the conditions laid down in the following
provisions, the principle of equal treatment implies that there shall beno discrimination on the basis of sex, either directly or indirectly, by
reference in particular to marital or family status, especially as regards:
— the scope of the schemes and the conditions of access to them;
— the obligation to contribute and the calculation of contributions;
— the calculation of benefits, including supplementary benefits due in
respect of a spouse or dependants, and the conditions governing theduration and retention of entitlement to benefits.
2. The principle of equal treatment shall not prejudice the provisions
relating to the protection of women by reason of maternity.
Article 6
1. Provisions contrary to the principle of equal treatment shall
include those based on sex, either directly or indirectly, in particularby reference to marital or family status, for:
(a) determining the persons who may participate in an occupational
scheme;
(b) fixing the compulsory or optional nature of participation in an
occupational scheme;
(c) laying down different rules as regards the age of entry into the
scheme or the minimum period of employment or membership ofthe scheme required to obtain the benefits thereof;
(d) laying down different rules, except as provided for in points (h) and
(i), for the reimbursement of contributions when a worker leaves ascheme without having fulfilled the conditions guaranteeing adeferred right to long-term benefits;
(e) setting different conditions for the granting of benefits or restricting
such benefits to workers of one or other of the sexes;
(f) fixing different retirement ages;
(g) suspending the retention or acquisition of rights during periods of
maternity leave or leave for family reasons which are granted bylaw or agreement and are paid by the employer;
(h) setting different levels of benefit, except in so far as may be neces-
sary to take account of actuarial calculation factors which differaccording to sex in the case of defined-contribution schemes.
In the case of funded defined-benefit schemes, certain elements
(examples of which are annexed) may be unequal where theinequality of the amounts results from the effects of the use of
actuarial factors differing according to sex at the time when the
scheme's funding is implemented;
(i) setting different levels for workers' contributions;
setting different levels for employers' contributions, except:
— in the case of defined-contribution schemes if the aim is to
equalize the amount of the final benefits or to make them
more nearly equal for bothsexes,
— in the case of funded defined-benefit schemes where the
employer's contributions are intended to ensure the adequacyof the funds necessary to cover the cost of the benefits defined,
(j) laying down different standards or standards applicable only to
workers of a specified sex, except as provided for in points (h)and (i), as regards the guarantee or retention of entitlement todeferred benefits when a worker leaves a scheme.1986L0378 — EN — 09.03.1997 — 001.002 — 4
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2. Where the granting of benefits within the scope of this Directive
is left to the discretion of the scheme's management bodies, the lattermust comply withth e principle of equal treatment.
Article 7
Member States shall take all necessary steps to ensure that:
(a) provisions contrary to the principle of equal treatment in legally
compulsory collective agreements, staff rules of undertakings orany other arrangements relating to occupational schemes are null
and void, or may be declared null and void or amended;
(b) schemes containing such provisions may not be approved or
extended by administrative measures.
Article 8
1. Member States shall take the necessary steps to ensure that the
provisions of occupational schemes for self-employed workers contraryto the principle of equal treatment are revised with effect from 1January 1993 at the latest.
2. This Directive shall not preclude rights and obligations relating to
a period of membership of an occupational scheme for self-employedworkers prior to revision of that scheme from remaining subject to theprovisions of the scheme in force during that period.
Article 9
As regards schemes for self-employed workers, Member States may
defer compulsory application of the principle of equal treatment with
regard to:
(a) determination of pensionable age for the granting of old-age or
retirement pensions, and the possible implications for other bene-
fits:
— either until the date on which such equality is achieved in stat-
utory schemes,
— or, at the latest, until such equality is prescribed by a directive;
(b) survivors' pensions until Community law establishes the principle
of equal treatment in statutory social security schemes in that
regard;
(c) the application of the first subparagraph of point (i) of Article 6 (1)
to take account of the different actuarial calculation factors, at thelatest until 1 January 1999.
Article 9a
Where men and women may claim a flexible pensionable age under the
same conditions, this shall not be deemed to be incompatible with thisDirective.
Article 10
Member States shall introduce into their national legal systems such
measures as are necessary to enable all persons who consider them-
selves injured by failure to apply the principle of equal treatment to
pursue their claims before the courts, possibly after bringing thematters before other competent authorities.
Article 11
Member States shall take all the necessary steps to protect worker
against dismissal where this constitutes a response on the part of theemployer to a complaint made at undertaking level or to the institution1986L0378 — EN — 09.03.1997 — 001.002 — 5
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of legal proceedings aimed at enforcing compliance withth e principle
of equal treatment.
Article 12
1. Member States shall bring into force such laws, regulations and
administrative provisions as are necessary in order to comply withth is
Directive at the latest three years after notification thereof(1). They
shall immediately inform the Commission thereof.
2. Member States shall communicate to the Commission at the latest
five years after notification of this Directive all information necessaryto enable the Commission to draw up a report on the application of thisDirective for submission to the Council.
Article 13
This Directive is addressed to the Member States.1986L0378 — EN — 09.03.1997 — 001.002 — 6
(1) This Directive was notified to the Member States on 30 July 1986.
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ANNEX
Examples of elements which may be unequal, in respect of funded defined-
benefit schemes, as referred to in Article 6 (h):
— conversion into a capital sum of part of a periodic pension,
— transfer of pension rights,— a reversionary pension payable to a dependant in return for the surrender of
part of a pension,
— a reduced pension where the worker opts to take early retirement.1986L0378 — EN — 09.03.1997 — 001.002 — 7