Proposal for a DIRECTIVE OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL amending 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

(presented by the Commission)

EXPLANATORY MEMORANDUM

I. INTRODUCTION

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 [1] 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.

[1] Council Directive 76/207/EEC of 9.2.1976 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. OJ L 39, 14.2.1976, p. 40.

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.

II. CONTEXT

1. General considerations

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 [2].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.

[2] Judgment of 15 June 1978 in Case 149/77 Defrenne III, [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 [3]. The wording of both proposals [4] 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.

[3] COM(1999) 565 final and COM(1999) 566 final of 25.11.1999.

[4] See Communication from the Commission to the Council, the European Parliament, the Economic and Social Committee and the Committee of the Regions on certain Community measures to combat discrimination, OJ C 369, 21.12.1999, p. 3.

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(3) 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 [5] 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.

[5] OJ C 179, 22. 6.1996, p. 8.

13. Taking the Court's jurisprudence into account in the Directive itself is desirable in order to achieve legal certainty.

2. New provisions

2.1. Sexual harassment

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 [6]. 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.

[6] Rubinstein, Michael (1987), The dignity of women at work. A report of the problem of sexual harassment in the Member States of the European Community.

15. The study [7] 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.

[7] Sexual harassment at the workplace in the European Union, 1999.

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 [8]. 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 [9].

[8] Title VII of the USA Civil Rights Act of 1964, 42 U.S.C. 2000e-2(a)(1) in the USA; Charter of Human Rights and Freedoms, s. 10.1 of the Canadian Charter of Rights; Sex discrimination Act 1984 - Section 27 of the Australian Sex Discrimination Act.

[9] The Community judges will also have to consider the facts, see judgment of 26 January 1995, D. [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.

2.2. Occupational activities excluded from the scope of the Directive

19. Since the entry into force of the Directive, the Court has given three important judgments [10] on the interpretation of Article 2(2) 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.

[10] Judgment of 15 May 1986 in Case C-222/84 Johnston; judgment of 26 October 1999, Sirdar, [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 [11].

[11] See also judgment of 30 June 1988 in Case 318/86 Commission v France [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 [12]. 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.

[12] Judgment of 8 November 1983 in Case 165/82 Commission v United Kingdom, [1983] ECR 3431.

26. The importance of the requirement of reassessment was best affirmed by the Court in the Commission v France case [13] 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.

[13] Judgment of 30 June 1988 in Case 318/86.

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.

2.3. Positive action measures

28. In Directive 76/207/EEC, Article 2(4) 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 [14], the Kalanke case and the Marschall case [15]. From this case-law, some conclusions can be drawn, and more recently in the Badek case [16]:

[14] Judgment of 25 October 1988 in Case 312/86 [1988] ECR 6315.

[15] Judgment of 11 November 1997 in Case 409/95 [1997] ECR I-6363.

[16] Judgment of 28 February 2000 in Case 158/97.

- 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(4) 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" [17].

[17] This provision has been the subject of a Declaration annexed to the Final Act, which states that Member States, should, in the first instance, aim at improving the situation of women in working life.

The publication of periodical Commission reports on the implementation of the possibility offered by Article 141(4), 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.

3. Coherence with proposals based on Article 13 of the Treaty

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.

III. JUSTIFICATION WITH REGARD TO SUBSIDIARITY

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(3) which empowers the Community to adopt measures to ensure the application of equal treatment of men and women in matters of employment and occupation.

Article 1

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 [18] and the Directive based on Article 13.

[18] Commission of the European Communities 1993, "How to Combat Sexual Harassment at Work, A guide to the European Commission Code of Practice".

40. The third amendment concerns the insertion of a subparagraph to paragraph 1 of Article 2

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(3). 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.

43. The sixth amendment concerns the replacement of paragraph 4 of Article 2

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(4) 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.

Article 2

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.

Article 3

50. This Article is a standard Article that the Directive is addressed to the Member States.

2000/0142 (COD)

Proposal for a DIRECTIVE OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL amending 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

[Text with EEA relevance]

THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION,

Having regard to the Treaty establishing the European Community and, in particular, Article 141(3) thereof,

Having regard to the proposal from the Commission [19],

[19] OJ C

Having regard to the opinion of the Economic and Social Committee [20],

[20] OJ C

Acting in accordance with the procedure laid down in Article 251 of the Treaty [21],

[21] OJ C

Whereas:

(1) Article 3(2) of the Treaty imposes an obligation to aim to eliminate inequalities, and to promote equality between men and women.

(2) The principle of equal treatment between men and women is a fundamental principle of Community law as referred to in Article 141 and in particular in paragraph 3, which addresses specifically sex discrimination related to employment and occupation.

(3) In its Resolution of 29 May 1990 on the protection of the dignity of women and men at work [22], the Council affirmed that sexual harassment in the workplace may, in certain circumstances, be contrary to the principle of equal treatment within the meaning of Council Directive 76/207/EEC [23]. A statement to that effect should be included in the Directive itself, sexual harassment usually affects the individual's work performance and/or creates an intimidating, hostile or offensive environment.

[22] OJ C 157, 27.6.1990, p. 3.

[23] OJ L 39, 14.2.1976, p. 40.

(4) Directive 76/207/EEC does not define the concept of indirect discrimination. It is thus appropriate to insert such a definition consistent with that of Council Directive 97/80/EC of 15 December 1997 [24] on the burden of proof in cases of discrimination based on sex, as amended by Directive 98/52/EC [25].

[24] OJ L 14, 20.1.1998, p. 6.

[25] OJ L 205, 22.7.1998, p. 66.

(5) The scope of the occupation activities that Member States seek to exclude from the scope of Directive 76/207/EEC should be restricted. The extent to which some activities may not be excluded should be specified in accordance with the case-law of the Court of Justice of the European Communities.

(6) The Court of Justice has consistently recognised the legitimacy, in terms of the principle of equal treatment, of protecting a woman's biological condition during and after pregnancy. Council Directive 92/85/EEC of 19 October 1992 on the introduction of measures to encourage improvements in the safety and health at work of pregnant workers and workers who have recently given birth or are breastfeeding [26], aims to ensure the protection of the physical and mental state of women who are pregnant, women who have recently given birth or women who are breastfeeding. The recitals of that Directive provide that the protection of the safety and health of pregnant workers, workers who have recently given birth or workers who are breastfeeding should not treat women who are on the labour market unfavourably nor work to the detriment of directives concerning equal treatment for men and women. The protection of employment rights of women, in particular as regards their right to return to work falls within the scope of Directive 76/207/EEC. That right should be explicitly guaranteed to women who have recently given birth.

[26] OJ L 348, 28.11.1992, p. 1.

(7) The possibility for Member States to maintain or adopt positive action measures is enshrined in Article 141(4) of the Treaty. This Treaty provision makes the existing Article 2(4) of Directive 76/207/EEC redundant. The publication of periodical reports by the Commission on the implementation of the possibility offered by Article 141(4) 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.

(8) The Court of Justice has ruled that, having regard to the fundamental nature of the right to effective judicial protection, employees enjoy such protection even after the employment relationship has ended [27].

[27] Case C-185/97 Coote [1998] ECR I-5199.

(9) The Court of Justice has ruled that, in order to be effective, the principle of equal treatment implies that, whenever it is breached, the compensation awarded to the employee discriminated against must be adequate in relation to the damage sustained [28].

[28] Case C-180/95 Draehmpaeh [1997] ECR I-2195.

(10) To provide a more effective level of protection to workers who are discriminated against on grounds of sex, associations or legal entities should also be empowered to exercise the rights of defence on behalf or in protection of any person who considers himself or herself wronged because the principle of equal treatment has not been applied to them.

(11) Member States should promote social dialogue between the social partners to address different forms of discrimination based on sex in the workplace and to combat them.

(12) Member States should provide for effective, proportionate and dissuasive sanctions in case of breaches of the obligations under Directive 76/207/EEC.

(13) In accordance with the principles of subsidiarity and proportionality as set out in Article 5 of the Treaty, the objectives of the proposed action cannot be sufficiently achieved by the Member States and can therefore be better achieved by the Community. This Directive confines itself to the minimum required in order to achieve those objectives and does not go beyond what is necessary for that purpose,

(14) Directive 76/207/EEC should therefore be amended accordingly,

HAVE ADOPTED THIS DIRECTIVE:

Article 1

Directive 76/207/EEC is hereby amended as follows:

1. In Article 1, the following paragraph 1a is inserted:

"1a. Member States shall introduce such measures as are necessary to enable them actively and visibly to promote the objective of equality between men and women by its incorporation, in particular, into all laws, regulations, administrative provisions, policies and activities in the areas referred to in paragraph 1".

2. The following Article 1a is inserted

"Article 1a

"Sexual harassment shall be deemed to be discrimination on the grounds of sex at the workplace when an unwanted conduct related to sex takes place with the purposes or effect of affecting the dignity of a person and/or creating an intimidating, hostile, offensive or disturbing environment, in particular if a person's rejection of, or submission to, such conduct is used as a basis for a decision which affects that person."

3. Article 2 is amended as follows:

(a) In pararaph 1, the following subparagraph is added:

"Indirect discrimination, for the purposes of the first subparagraph, shall exist where an apparently neutral provision, criterion or practice disadvantages a substantially higher proportion of the members of one sex unless that provision, criterion or practice is appropriate and necessary and can be justified by objective factors unrelated to sex."

(b) Paragraph 2 is replaced by the following:

"2. Member States may provide, as regards access to employment, that a difference of treatment which is based on a characteristic related to sex shall not constitute discrimination where, by reason of the nature of the particular occupational activities concerned or of the context in which they are carried out, such a characteristic constitutes a genuine occupational requirement.

Derogations to the principle of equal treatment shall remain within the limits of what is appropriate and necessary in order to achieve the aim in view."

(c) In paragraph 3, the following subparagraph is added:

"A woman who has given birth shall be entitled, after the end of her period of maternity leave, to return to her job or to an equivalent post with no change in her working conditions."

(d) Paragraph 4 is replaced by the following:

"4. On the basis of the information provided by Member States pursuant to Article 9, the Commission will adopt and publish every three years a report establishing a comparative assessment of the positive measures adopted by the Member States pursuant to Article 141(4) of the Treaty."

4. In Article 3(2), the following paragraph (d) is added:

"(d) any provision contrary to the principle of equal treatment concerning membership of and involvement in an organisation of workers or employers, or any organisation whose members carry on a particular profession, including the benefits provided for by such organisations shall be declared null and void or may be amended."

5. Article 6 is replaced by the following:

"Article 6

1. Member States shall introduce into their national legal systems such measures as are necessary to enable all persons who consider themselves wronged by failure to apply to them the principle of equal treatment within the meaning of Articles 3, 4, and 5 to pursue their claims by judicial process after possible recourse to other competent authorities, even after the employment relationship has ended.

2. Member States shall introduce into their national legal systems such measures as are necessary to ensure that reparation for the loss and damage sustained by a person injured as a result of discrimination contrary to Articles 3, 4 or 5 may not be limited by an upper limit fixed a priori or by excluding an award of interest to compensate for the loss sustained by the recipient of the compensation as a result of the lapse of time until actual payment of the capital sum awarded."

6. The following Article 8a, 8b and 8c are inserted:

"Article 8a

1. Member States shall provide for an independent body for the promotion of the principle of equal treatment between women and men. This body may form part of independent, pre-existing agencies charged at national level with, in particular, the safeguard of individuals' rights.

2. Member States shall ensure that the functions of the independent bodies referred to in paragraph 1 include receiving and pursuing complaints from individuals of discrimination on grounds of sex, starting investigations or surveys concerning discrimination on grounds of sex and publishing reports on issues relating to discrimination based on sex.

3. Member States shall ensure that associations, organisations or other legal entities may pursue, on behalf of the complainant with his or her approval, any judicial and/or administrative procedure provided for the enforcement of obligations under this Directive.

Article 8b

1. Member States shall take adequate measures to promote the social dialogue between the two sides of industry with a view to fostering equal treatment, including through the monitoring of workplace practices, collective agreements, codes of conduct, research or exchange of experiences and good practices.

2. Member States shall encourage the two sides of industry without prejudice to their autonomy to conclude agreements, at the appropriate level, laying down anti-discrimination rules in the field of equality of treatment between women and men.

Article 8c

1. Member States shall lay down the rules or penalties applicable to infringments of the national provisions adopted pursuant to this Directive, and shall take all measures necessary to ensure that they are implemented. The penalties provided for must be effective, proportionate and dissuasive. The Member States shall notify those provisions to the Commission by 31 December 2001 at the latest and shall notify it without delay of any subsequent amendment affecting them."

Article 2

1. Member States shall bring into force the laws, regulations and administrative provisions necessary to comply with this Directive by 31 December 2001 at the latest or shall ensure, by that date at the latest, that management and labour introduce the requisite provisions 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. They shall immediately inform the Commission thereof.

When Member States adopt those measures, they shall contain a reference to this Directive or be accompanied by such a reference on the occasion of their official publication. Member States shall determine how such reference is to be made.

2. The Member States shall communicate to the Commission, within three years of the entry into force of this Directive, all the information necessary for the Commission to draw up a report to the European Parliament and the Council on the application of this Directive.

3. Without prejudice to paragraph 2, Member States shall communicate to the Commission, every three years, the texts of laws, regulations and administrative provisions of positive measures adopted pursuant to Article 141(4) of the Treaty"

Article 3

This Directive is addressed to the Member States.

Done at Brussels,

For the European Parliament For the Council

The President The President

ANNEX

IMPACT ASSESSMENT FORM

THE IMPACT OF THE PROPOSAL ON BUSINESS with special reference to small and medium-sized enterprises (SMEs)

Title of proposal:

Proposal for a Directive of the European Parliament and of the Council amending 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

Reference No: 45468/901

The proposal:

1. Taking account of the principle of subsidiarity, why is Community legislation necessary in this area and what are its main aims-

The European Union is based on fundamental principles such as equality between women and men.

The use of a Community legislative instrument in this field must be consistent with the principle of subsidiarity. Amending Directive 76/207/EEC is the only way to guarantee that the Court of Justice's abundant case-law is uniformly and effectively applied at national level. Moreover, it is necessary to ensure Community-level coherence of legislation implementing the principle of equal treatment. In the case of sex discrimination, this can only be achieved by amending Directive 76/207/EEC.

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 to determine how the principle of equal treatment is to be applied effectively in this respect.

The Community legislation will not have any direct impact on enterprises' operations and will not impose any administrative or legal constraints which could hinder the creation or development of SMEs.

The impact on business:

2. Who will be affected by the proposal-

All businesses will be subject to the national legislation required by the Directive.

3. What will businesses have to do to comply with the proposal-

Businesses must ensure that decisions concerning recruitment, access to employment, promotion, access to training, and terms and conditions of employment including redundancy and pay are consistent with the principle of equal treatment for men and women. In principle, this is already the case in all Member States. The Directive will therefore consolidate existing requirements, rather than introducing completely new provisions, and will contribute to legal certainty and clarity by incorporating the Court's case-law.

Concerning, for example, the right of women who have given birth to return to their previous jobs, or to similar posts, with the same working conditions as those which applied when they were 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).

4. What economic effects is the proposal likely to have-

By tackling sex discrimination, the proposal will increase participation in economic and social life and reduce inequalities between men and women. This effect will directly benefit economic growth by cutting public spending on social security and assistance, boosting households' purchasing power, and encouraging the competitiveness of businesses, which will be in a position to make optimum use of all the resources available on the labour market.

(a) What will be the impact:

- on employment-

The Directive will help establish a labour market which is open to everyone, as required by the European Employment Strategy. It will thus help improve the quality of employment and, in the medium term, lead to higher levels of employment resulting from the increased competitiveness of European businesses.

- on investment and the creation of new businesses

The Directive will create more flexible conditions for access to employment and work, paid employment, self-employment and the liberal professions.

- on the competitive position of businesses

From the point of view of competition, the Directive will play an important part in ensuring that all operators are placed on an equal footing. As mentioned above, it will boost the competitiveness of European businesses by ensuring that they have at their disposal a greater volume of skills and resources than at present and that these skills are used without discrimination.

(b) Do any new administrative procedures have to be put in place-

The existing Community legal framework concerning equal treatment for men and women already requires businesses to be able to justify decisions on subjects such as recruitment, promotion, access to training and other terms and conditions of employment so as to show that they have not been made on a discriminatory basis. This is already the case in most Member States.

(c) Costs and benefits in quantitative and qualitative terms-

There are no additional costs. Businesses are already familiar with the Community framework concerning equal opportunities for women and men, which has been in existence for more than 20 years.

The Directive merely reflects the developments in Community law and contributes to legal certainty by incorporating Court of Justice case-law.

In the medium term, businesses will benefit from the increased commitment of workers and the gain in competitiveness resulting from better use of resources.

(d) What costs will result from the Directive-

The Directive establishes a flexible general framework for implementation of the equal treatment principle, and it will be for the Member States and social partners to determine the precise means of putting this into practice. However, the costs will be limited.

(e) What will companies be required to do in terms of monitoring and evaluation-

The Directive does not directly require businesses to monitor and evaluate how they comply with the Directive. However, it will be in their interest to keep records of their decisions concerning recruitment, promotion, access to training and other terms and conditions of employment to show that they were taken without discrimination. Larger companies might wish to carry out more structured monitoring in order to ensure that the equal treatment principle is applied at all levels.

5. Does the proposal contain measures to take account of the specific situation of small and medium-sized firms (reduced or different requirements, etc.)-

The proposal does not make any distinction based on company size, given that sex discrimination exists across all companies, regardless of the number of employees. However, the Directive lays down only minimum standards based on a flexible framework of principles. The Member States and social partners are therefore free to vary the requirements of the Directive.

Consultation

6. List the organisations which have been consulted about the proposal and outline their main views.

The Commission consulted the representative organisations of the social partners at European level and held a seminar on the subject on 10 May 2000.

All the organisations consulted recognised the importance of the issue and the need for a legislation-based approach. However, different points of view were expressed on certain aspects of the proposal. The ETUC would like to see a new proposal (a second specific proposal) on sex discrimination, which would be based on the provisions of the Treaty relating to health and safety at work (Article 137(1)).

UNICE feels that this aspect is already covered by the Framework Directive on health and safety at work (Directive 89/391/EEC).