1997L0080 — EN — 22.07.1998 — 001.001 — 1
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►B COUNCIL DIRECTIVE 97/80/EC
of 15 December 1997
on the burden of proof in cases of discrimination based on sex
(OJ L 14, 20.1.1998, p. 6)
Amended by:
Official Journal
No page date
►M1Council Directive 98/52/EC of 13 July 1998 L205 66 22.7.1998
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COUNCIL DIRECTIVE 97/80/EC
of 15 December 1997
on the burden of proof in cases of discrimination based on sex
THE COUNCIL OF THE EUROPEAN UNION,
Having regard to the Agreement on social policy annexed to the
Protocol(No14)onsocialpolicyannexedtotheTreatyestablishingtheEuropean Community, and in particular Article 2(2) thereof,
Having regard to the proposal from the Commission(
1),
HavingregardtotheopinionoftheEconomicandSocialCommittee(2),
Acting, in accordance with the procedure laid down in Article 189c of
the Treaty, in cooperation with the European Parliament(3),
(1)Whereas,onthebasisoftheProtocolonsocialpolicyannexedtothe Treaty, the Member States, with the exception of the UnitedKingdom of Great Britain and Northern Ireland (hereinaftercalled ‘the Member States'), wishing to implement the 1989Social Charter, have concluded an Agreement on social policy;
(2)Whereas the Community Charter of the Fundamental SocialRightsofWorkersrecognizestheimportanceofcombatingeveryform of discrimination, including discrimination on grounds ofsex, colour, race, opinions and beliefs;
(3)Whereas paragraph 16 of the Community Charter of the Funda-mentalSocialRightsofWorkersonequaltreatmentformenandwomen,provides, inter alia,that‘actionshouldbeintensifiedto
ensure the implementation of the principle of equality for menand women as regards, in particular, access to employment,remuneration, working conditions, social protection, education,vocational training and career development';
(4)Whereas, in accordance with Article 3(2) of the Agreement onsocial policy, the Commission has consulted management andlabour at Community level on the possible direction ofCommunity action on the burden of proof in cases of discrim-ination based on sex;
(5)Whereas the Commission, considering Community action advis-able after such consultation, once again consulted managementandlabouronthecontentoftheproposalcontemplatedinaccord-ancewithArticle3(3)ofthesameAgreement;whereasthelatterhave sent their opinions to the Commission;
(6)Whereas,afterthesecondroundofconsultation,neithermanage-ment nor labour have informed the Commission of their wish toinitiate the process — possibly leading to an agreement —provided for in Article 4 of the same Agreement;
(7)Whereas, in accordance with Article 1 of the Agreement, theCommunity and the Member States have set themselves theobjective, inter alia,ofimprovinglivingandworkingconditions;
whereas effective implementation of the principle of equal treat-mentformenandwomenwouldcontributetotheachievementofthat aim;
(1) OJ C 332, 7. 11. 1996, p. 11 and
OJ C 185, 18. 6. 1997, p. 21.
(2) OJ C 133, 28. 4. 1997, p. 34.
(3) Opinion of the European Parliament of 10 April 1997 (OJ C 132, 28. 4.
1997, p. 215), Common Position of the Council of 24 July 1997 (OJ C307, 8. 10. 1997, p. 6) and Decision of the European Parliament of 6November 1997 (OJ C 358, 24.11.1997).
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(8)Whereas the principle of equal treatment was stated in Article
119 of the Treaty, in Council Directive 75/117/EEC of 10February 1975 on the approximation of the laws of the MemberStatesrelatingtotheapplicationoftheprincipleofequalpayformen and women(
1) and in Council Directive 76/207/EEC of 9
February 1976 on the implementation of the principle of equaltreatment for men and women as regards access to employment,vocational training and promotion and working conditions(
2);
(9)WhereasCouncilDirective92/85/EECof19October1992ontheintroduction of measures to encourage improvements in thesafety and health at work of pregnant workers and workers whohaverecentlygivenbirthorarebreastfeeding(
3)alsocontributes
to the effective implementation of the principle of equal treat-ment for men and women; whereas that Directive should notworktothedetrimentoftheaforementionedDirectivesonequaltreatment; whereas, therefore, female workers covered by thatDirectiveshouldlikewisebenefitfromtheadaptationoftheruleson the burden of proof;
(10)Whereas Council Directive 96/34/EC of 3 June 1996 on theframework agreement on parental leave concluded by UNICE,CEEP and the ETUC(
4), is also based on the principle of equal
treatment for men and women;
(11)Whereas the references to ‘judicial process' and ‘court' covermechanisms by means of which disputes may be submitted forexaminationanddecisiontoindependentbodieswhichmayhanddown decisions that are binding on the parties to those disputes;
(12)Whereastheexpression‘out-of-courtprocedures'meansinpartic-ular procedures such as conciliation and mediation;
(13)Whereas the appreciation of the facts from which it may bepresumedthattherehasbeendirectorindirectdiscriminationisamatterfornationaljudicialorothercompetentbodies,inaccord-ance with national law or practice;
(14)Whereas it is for the Member States to introduce, at any appro-priatestageoftheproceedings,rulesofevidencewhicharemorefavourable to plaintiffs;
(15)Whereasitisnecessarytotakeaccountofthespecificfeaturesofcertain Member States’ legal systems, inter aliawhere an infer-
enceofdiscriminationisdrawniftherespondentfailstoproduceevidencethatsatisfiesthecourtorothercompetentauthoritythatthere has been no breach of the principle of equal treatment;
(16)Whereas Member States need not apply the rules on the burdenof proof to proceedings in which it is for the court or othercompetent body to investigate the facts of the case; whereas theproceduresthusreferredtoarethoseinwhichtheplaintiffisnotrequiredtoprovethefacts,whichitisforthecourtorcompetentbody to investigate;
(17)Whereas plaintiffs could be deprived of any effective means ofenforcing the principle of equal treatment before the nationalcourts if the effect of introducing evidence of an apparentdiscrimination were not to impose upon the respondent theburden of proving that his practice is not in fact discriminatory;
(18)Whereas the Court of Justice of the European Communities hastherefore held that the rules on the burden of proof must beadapted when there is a prima facie case of discrimination andthat,fortheprincipleofequaltreatmenttobeappliedeffectively,
(1) OJ L 45, 19. 2. 1975, p. 19.
(2) OJ L 39, 14. 2. 1976, p. 40.
(3) OJ L 348, 28. 11. 1992, p. 1.
(4) OJ L 145, 19. 6. 1996, p. 4.
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the burden of proof must shift back to the respondent whenevidence of such discrimination is brought;
(19)Whereasitisallthemoredifficulttoprovediscriminationwhenit is indirect; whereas it is therefore important to define indirectdiscrimination;
(20)Whereas the aim of adequately adapting the rules on the burdenofproofhasnotbeenachievedsatisfactorilyinallMemberStatesand, in accordance with the principle of subsidiarity stated inArticle3boftheTreatyandwiththatofproportionality,thataimmust be attained at Community level; whereas this Directiveconfines itself to the minimum action required and does not gobeyond what is necessary for that purpose,
HAS ADOPTED THIS DIRECTIVE:
Article 1
Aim
TheaimofthisDirectiveshallbetoensurethatthemeasurestakenby
the Member States to implement the principle of equal treatment aremade more effective, in order to enable all persons who considerthemselves wronged because the principle of equal treatment has notbeen applied to them to have their rights asserted by judicial processafter possible recourse to other competent bodies.
Article 2
Definitions
1. ForthepurposesofthisDirective,theprincipleofequaltreatment
shall mean that there shall be no discrimination whatsoever based onsex, either directly or indirectly.
2. For purposes of the principle of equal treatment referred to in
paragraph 1, indirect discrimination shall exist where an apparentlyneutral provision, criterion or practice disadvantages a substantiallyhigher proportion of the members of one sex unless that provision,criterionorpracticeisappropriateandnecessaryandcanbejustifiedbyobjective factors unrelated to sex.
Article 3
Scope
1. This Directive shall apply to:
(a) the situations covered by Article 119 of the Treaty and by Direct-
ives 75/117/EEC, 76/207/EEC and, insofar as discrimination basedon sex is concerned, 92/85/EEC and 96/34/EC;
(b) any civil or administrative procedure concerning the public or
private sector which provides for means of redress under nationallawpursuanttothemeasuresreferredtoin(a)withtheexceptionofout-of-court procedures of a voluntary nature or provided for innational law.
2. ThisDirectiveshallnotapplytocriminalprocedures,unlessother-
wise provided by the Member States.
Article 4
Burden of proof
1. Member States shall take such measures as are necessary, in
accordance with their national judicial systems, to ensure that, whenpersons who consider themselves wronged because the principle ofequaltreatmenthasnotbeenappliedtothemestablish,beforeacourtorother competent authority, facts from which it may be presumed thatthere has been direct or indirect discrimination, it shall be for the
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respondent to prove that there has been no breach of the principle ofequal treatment.
2. This Directive shall not prevent Member States from introducing
rules of evidence which are more favourable to plaintiffs.
3. Member States need not apply paragraph 1 to proceedings in
whichitisforthecourtorcompetentbodytoinvestigatethefactsofthecase.
Article 5
Information
Member States shall ensure that measures taken pursuant to this
Directive, together with the provisions already in force, are brought tothe attention of all the persons concerned by all appropriate means.
Article 6
Non-regression
ImplementationofthisDirectiveshallundernocircumstancesbesuffi-
cient grounds for a reduction in the general level of protection ofworkers in the areas to which it applies, without prejudice to theMember States’ right to respond to changes in the situation by intro-ducing laws, regulations and administrative provisions which differfrom those in force on the notification of this Directive, provided thatthe minimum requirements of this Directive are complied with.
Article 7
Implementation
The Member States shall bring into force the laws, regulations and
administrative provisions necessary for them to comply with thisDirective by 1 January 2001. They shall immediately inform theCommission thereof.
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AsregardstheUnitedKingdomofGreatBritainandNorthernIreland,thedateof1January2001inparagraph1shallbereplacedby22July2001.
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When the Member States adopt those measures they shall contain areferencetothisDirectiveorshallbeaccompaniedbysuchareferenceon the occasion of their official publication. The methods of makingsuch references shall be laid down by the Member States.
The Member States shall communicate to the Commission, within two
years of the entry into force of this Directive, all the informationnecessary for the Commission to draw up a report to the EuropeanParliament and the Council on the application of this Directive.
Article 8
This Directive is addressed to the Member States.