1976L0207 — EN — 05.10.2002 — 001.001 — 1
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►B COUNCILDIRECTIVE
of9February1976
on the implementation of the principle of equal treatment for men and women as regards access
toemployment,vocational trainingandpromotion,andworkingconditions
(76/207/EEC)
(OJ L 39, 14.2.1976, p. 40)
Amended by:
Official Journal
No page date
►M1Directive 2002/73/EC of the European Parliament and of the Council of
23 September 2002L 269 15 5.10.2002
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COUNCILDIRECTIVE
of9February1976
on the implementation of the principle of equal treatment for men
and women as regards access to employment, vocational training
andpromotion,andworkingconditions
(76/207/EEC)
THE COUNCIL OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Economic
Community, and in particular Article 235 thereof,
Having regard to the proposal from the Commission,Having regard to the opinion of the European Parliament(
1),
Having regard to the opinion of the Economic and Social
Committee(2),
Whereas the Council, in its resolution of 21 January 1974 concerning a
social action programme(3), included among the priorities action for
the purpose of achieving equality between men and women as regardsaccess to employment and vocational training and promotion and asregards working conditions, including pay;
Whereas, with regard to pay, the Council adopted on 10 February 1975
Directive 75/117/EEC on the approximation of the laws of the Member
States relating to the application of the principle of equal pay for men
and women(
4);
Whereas Community action to achieve the principle of equal treatment
for men and women in respect of access to employment and vocationaltraining and promotion and in respect of other working conditions alsoappears to be necessary; whereas, equal treatment for male and femaleworkers constitutes one of the objectives of the Community, in so far
as the harmonization of living and working conditions while main-
taining their improvement are inter alia to be furthered; whereas the
Treaty does not confer the necessary specific powers for this purpose;
Whereas the definition and progressive implementation of the principle
of equal treatment in matters of social security should be ensured bymeans of subsequent instruments,
HAS ADOPTED THIS DIRECTIVE:
Article 1
1. The purpose of this Directive is to put into effect in the Member
States the principle of equal treatment for men and women as regardsaccess to employment, including promotion, and to vocational trainingand as regards working conditions and, on the conditions referred to in
paragraph 2, social security. This principle is herinafter referred to as
‘the principle of equal treatment.’
1a. Member States shall actively take into account the objective of
equality between men and women when formulating and implementinglaws, regulations, administrative provisions, policies and activities inthe areas referred to in paragraph 1.
2. With a view to ensuring the progressive implementation of the
principle of equal treatment in matters of social security, the Council,acting on a proposal from the Commission, will adopt provisions1976L0207 — EN — 05.10.2002 — 001.001 — 2
(1) OJ No C 111, 20. 5. 1975, p. 14.
(2) OJ No C 286, 15. 12. 1975, p. 8.
(3) OJ No C 13, 12. 2. 1974, p. 1.
(4) OJ No L 45, 19. 2. 1975, p. 19.▼M1
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defining its substance, its scope and the arrangements for its applica-
tion.
Article 2
1. For the purposes of the following provisions, the principle of
equal treatment shall mean that there shall be no discrimination what-soever on grounds of sex either directly or indirectly by reference inparticular to marital or family status.
2. For the purposes of this Directive, the following definitions shall
apply:
— direct discrimination: where one person is treated less favourably
on grounds of sex than another is, has been or would be treated ina comparable situation,
— indirect discrimination: where an apparently neutral provision,
criterion or practice would put persons of one sex at a particulardisadvantage compared with persons of the other sex, unless thatprovision, criterion or practice is objectively justified by a legiti-mate aim, and the means of achieving that aim are appropriate and
necessary,
— harassment: where an unwanted conduct related to the sex of a
person occurs with the purpose or effect of violating the dignity of
a person, and of creating an intimidating, hostile, degrading, humi-
liating or offensive environment,
— sexual harassment: where any form of unwanted verbal, non-verbal
or physical conduct of a sexual nature occurs, with the purpose or
effect of violating the dignity of a person, in particular whencreating an intimidating, hostile, degrading, humiliating or offensiveenvironment.
3. Harassment and sexual harassment within the meaning of this
Directive shall be deemed to be discrimination on the grounds of sexand therefore prohibited.
A person's rejection of, or submission to, suchconduct may not be used
as a basis for a decision affecting that person.
4. An instruction to discriminate against persons on grounds of sex
shall be deemed to be discrimination within the meaning of this Direc-
tive.
5. Member States shall encourage, in accordance with national law,
collective agreements or practice, employers and those responsible foraccess to vocational training to take measures to prevent all forms ofdiscrimination on grounds of sex, in particular harassment and sexualharassment at the workplace.
6. Member States may provide, as regards access to employment
including the training leading thereto, that a difference of treatmentwhich is based on a characteristic related to sex shall not constitute
discrimination where, by reason of the nature of the particular occupa-
tional activities concerned or of the context in which they are carriedout, sucha ch aracteristic constitutes a genuine and determining occupa-tional requirement, provided that the objective is legitimate and therequirement is proportionate.
7. This Directive shall be without prejudice to provisions concerning
the protection of women, particularly as regards pregnancy and mater-
nity.
A woman on maternity leave shall be entitled, after the end of her
period of maternity leave, to return to her job or to an equivalent post
on terms and conditions which are no less favourable to her and tobenefit from any improvement in working conditions to which shewould be entitled during her absence.
Less favourable treatment of a woman related to pregnancy or mater-
nity leave within the meaning of Directive 92/85/EEC shall constitutediscrimination within the meaning of this Directive.1976L0207 — EN — 05.10.2002 — 001.001 — 3
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This Directive shall also be without prejudice to the provisions of
Council Directive 96/34/EC of 3 June 1996 on the framework agree-ment on parental leave concluded by UNICE, CEEP and the ETUC(
1)
and of Council Directive 92/85/EEC of 19 October 1992 on the intro-
duction of measures to encourage improvements in the safety andhealth at work of pregnant workers and workers who have recentlygiven birth or are breastfeeding (tenth individual Directive within themeaning of Article 16(1) of Directive 89/391/EEC)(
2). It is also
without prejudice to the right of Member States to recognise distinct
rights to paternity and/or adoption leave. Those Member States whichrecognise such rights shall take the necessary measures to protectworking men and women against dismissal due to exercising thoserights and ensure that, at the end of such leave, they shall be entitledto return to their jobs or to equivalent posts on terms and conditions
which are no less favourable to them, and to benefit from any improve-
ment in working conditions to which they would have been entitledduring their absence.
8. Member States may maintain or adopt measures within the
meaning of Article 141(4) of the Treaty with a view to ensuring fullequality in practice between men and women.
Article 3
1. Application of the principle of equal treatment means that there
shall be no direct or indirect discrimination on the grounds of sex in
the public or private sectors, including public bodies, in relation to:
(a) conditions for access to employment, to self-employment or to
occupation, including selection criteria and recruitment conditions,whatever the branch of activity and at all levels of the professionalhierarchy, including promotion;
(b) access to all types and to all levels of vocational guidance, voca-
tional training, advanced vocational training and retraining,including practical work experience;
(c) employment and working conditions, including dismissals, as well
as pay as provided for in Directive 75/117/EEC;
(d) membership of, and involvement in, an organisation of workers or
employers, or any organisation whose members carry on a parti-
cular profession, including the benefits provided for by such
organisations.
2. To that end, Member States shall take the necessary measures to
ensure that:
(a) any laws, regulations and administrative provisions contrary to the
principle of equal treatment are abolished;
(b) any provisions contrary to the principle of equal treatment which
are included in contracts or collective agreements, internal rules ofundertakings or rules governing the independent occupations andprofessions and workers' and employers' organisations shall be, ormay be declared, null and void or are amended.
Article 6
1. Member States shall ensure that judicial and/or administrative
procedures, including where they deem it appropriate conciliationprocedures, for the enforcement of obligations under this Directive areavailable to all persons who consider themselves wronged by failure toapply the principle of equal treatment to them, even after the relation-
ship in which the discrimination is alleged to have occurred has ended.
2. Member States shall introduce into their national legal systems
suchmeasures as are necessary to ensure real and effective compensa-1976L0207 — EN — 05.10.2002 — 001.001 — 4
(1) OJ L 145, 19.6.1996, p. 4.
(2) OJ L 348, 28.11.1992, p. 1.
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tion or reparation as the Member States so determine for the loss and
damage sustained by a person injured as a result of discriminationcontrary to Article 3, in a way which is dissuasive and proportionate
to the damage suffered; such compensation or reparation may not be
restricted by the fixing of a prior upper limit, except in cases wherethe employer can prove that the only damage suffered by an applicantas a result of discrimination within the meaning of this Directive is therefusal to take his/her job application into consideration.
3. Member States shall ensure that associations, organisations or
other legal entities which have, in accordance with the criteria laid
down by their national law, a legitimate interest in ensuring that theprovisions of this Directive are complied with, may engage, either onbehalf or in support of the complainants, with his or her approval, inany judicial and/or administrative procedure provided for the enforce-ment of obligations under this Directive.
4. Paragraphs 1 and 3 are without prejudice to national rules relating
to time limits for bringing actions as regards the principle of equal
treatment.
Article 7
Member States shall introduce into their national legal systems such
measures as are necessary to protect employees, including those whoare employees' representatives provided for by national laws and/orpractices, against dismissal or other adverse treatment by the employeras a reaction to a complaint within the undertaking or to any legalproceedings aimed at enforcing compliance withth e principle of equal
treatment.
Article 8
Member States shall take care that the provisions adopted pursuant to
this Directive, together with the relevant provisions already in force,are brought to the attention of employees by all appropriate means,for example at their place of employment.
Article 8a
1. Member States shall designate and make the necessary arrange-
ments for a body or bodies for the promotion, analysis, monitoringand support of equal treatment of all persons without discrimination
on the grounds of sex. These bodies may form part of agencies charged
at national level with the defence of human rights or the safeguard ofindividuals' rights.
2. Member States shall ensure that the competences of these bodies
include:
(a) without prejudice to the right of victims and of associations, orga-
nisations or other legal entities referred to in Article 6(3), providingindependent assistance to victims of discrimination in pursuing
their complaints about discrimination;
(b) conducting independent surveys concerning discrimination;
(c) publishing independent reports and making recommendations on
any issue relating to suchdiscrimination.
Article 8b
1. Member States shall, in accordance with national traditions and
practice, take adequate measures to promote social dialogue between
the social partners with a view to fostering equal treatment, includingthrough the monitoring of workplace practices, collective agreements,codes of conduct, researchor exch ange of experiences and good prac-tices.
2. Where consistent with national traditions and practice, Member
States shall encourage the social partners, without prejudice to their1976L0207 — EN — 05.10.2002 — 001.001 — 5
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autonomy, to promote equality between women and men and to
conclude, at the appropriate level, agreements laying down anti-discri-mination rules in the fields referred to in Article 1 which fall within the
scope of collective bargaining. These agreements shall respect the
minimum requirements laid down by this Directive and the relevantnational implementing measures.
3. Member States shall, in accordance with national law, collective
agreements or practice, encourage employers to promote equal treat-
ment for men and women in the workplace in a planned and
systematic way.
4. To this end, employers should be encouraged to provide at appro-
priate regular intervals employees and/or their representatives withappropriate information on equal treatment for men and women in theundertaking.
Suchinformation may include statistics on proportions of men and
women at different levels of the organisation and possible measures toimprove the situation in cooperation with employees' representatives.
Article 8c
Member States shall encourage dialogue with appropriate non-govern-
mental organisations which have, in accordance with their national lawand practice, a legitimate interest in contributing to the fight against
discrimination on grounds of sex witha view to promoting th e prin-
ciple of equal treatment.
Article 8d
Member States shall lay down the rules on sanctions applicable to
infringements of the national provisions adopted pursuant to this Direc-tive, and shall take all measures necessary to ensure that they are
applied.
The sanctions, which may comprise the payment of compensation to
the victim, must be effective, proportionate and dissuasive. TheMember States shall notify those provisions to the Commission by 5October 2005 at the latest and shall notify it without delay of anysubsequent amendment affecting them.
Article 8e
1. Member States may introduce or maintain provisions which are
more favourable to the protection of the principle of equal treatmentthan those laid down in this Directive.
2. The implementation of this Directive shall under no circum-
stances constitute grounds for a reduction in the level of protectionagainst discrimination already afforded by Member States in the fields
covered by this Directive.
Article 9
1. Member States shall put into force the laws, regulations and
administrative provisions necessary in order to comply withth is Direc-tive within 30 months of its notification and shall immediately inform
the Commission thereof.
However, as regards the first part of Article 3 (2) (c) and the first part
of Article 5 (2) (c), Member States shall carry out a first examinationand if necessary a first revision of the laws, regulations and administra-tive provisions referred to therein within four years of notification of
this Directive.
2. Member States shall periodically assess the occupational activities
referred to in Article 2 (2) in order to decide, in the light of socialdevelopments, whether there is justification for maintaining the exclu-sions concerned. They shall notify the Commission of the results ofthis assessment.1976L0207 — EN — 05.10.2002 — 001.001 — 6
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3. Member States shall also communicate to the Commission the
texts of laws, regulations and administrative provisions which theyadopt in the field covered by this Directive.
Article 10
Within two years following expiry of the 30-month period laid down in
the first subparagraph of Article 9 (1), Member States shall forward all
necessary information to the Commission to enable it to draw up areport on the application of this Directive for submission to theCouncil.
Article 11
This Directive is addressed to the Member States.1976L0207 — EN — 05.10.2002 — 001.001 — 7