Opinion of the Economic and Social Committee on the 'Proposal for a Council Directive amending Directive 76/207/EEC on the implementation of equal treatment of men and women as regards access to employment, vocational training and promotion, and working conditions` (97/C 30/19)

On 5 June 1996 the Council decided to consult the Economic and Social Committee, in accordance with Article 198 of the EC Treaty, on the above-mentioned proposal.

The Section for Social, Family, Educational and Cultural Affairs, which was responsible for preparing the Committee's work on the subject, adopted its Opinion on 12 September 1996. The Rapporteur was Mrs Sigmund.

At its 338th Plenary Session (meeting of 25 September 1996) the Economic and Social Committee adopted the following Opinion by 97 votes to two, with eight abstentions.

1. Introduction

1.1. In October 1995 the European Court of Justice delivered its judgement in Case C-450/93 (Kalanke/Bremen). The different interpretations which followed gave rise to general uncertainty regarding the legality of some of the positive measures taken to increase the number of women in certain sectors and positions, and particularly the admissibility of quotas.

1.2. The topic in question is dealt with in Directive 76/207/EEC, which mainly covers the 'principle of equal treatment`.

1.3. In the Kalanke case the issue was whether the quota arrangements provided for under the equal opportunities law of the Land of Bremen were compatible with Directive 76/207/EEC. The Court of Justice of the European Communities decided that the legal provision of Bremen was in breach of the EEC Directive by stating that, where male and female applicants had the same qualifications, preference should automatically be given to the recruitment and promotion of women in public-service sectors where women were under-represented.

1.4. The judgement of the European Court of Justice was subsequently interpreted in different ways:

Opinions ranged from the view that the Court of Justice of the European Communities had merely decided that Bremen's system of 'rigid` quotas, as applied automatically to Mr Kalanke, was in breach of Community law, to the view that any kind of quota system contravened Community law. The present uncertainty shows that Member States are not wholly clear about whether or not quotas are admissible.

1.5. On 27 March 1996 the Commission submitted a proposal amending Directive 76/207/EEC. In its justification of the proposal the Commission makes it clear that the amendment is only of a declaratory nature and does not alter the scope of the Directive. The amendment in question nevertheless replaces the words 'women's opportunities` by 'opportunities of the under-represented sex` whilst linking the application of rules on preference to the 'assessment of the particular circumstances of an individual case`.

1.5.1. The Committee notes the opinion of the Commission that in the Kalanka case the Court merely condemns the absolutely rigid quota system and that the exception, as stipulated in Article 2(4), regarding other forms of positive action in favour of women, can be used by Member States and employers, including flexible quota systems.

1.6. Comments made so far suggest that the Commission's present proposed amendment is a reaction to the Kalanke judgement of the Court of Justice. In the view of the Committee the aim of such legal clarification can only be to provide an answer to the question of whether positive measures (particularly quotas) are admissible.

2. General comments

Although the Opinion is in principle limited to discussing the present draft Directive, the Committee takes the view that the subject must also be discussed in broader terms than those of the original case.

2.1. In this connection the Committee would refer first to its Opinion on Equal opportunities for women - medium-term Community programme, 1986 to 1990 (). It points out in this Opinion that the question of equal opportunities for women is one which concerns society as a whole, and reaffirms that legal provisions alone are not sufficient to correct outmoded role stereotyping or to change deep-rooted attitudes.

The Committee also stated in its Opinion on the Balanced participation of women and men in decision-making () that the 'under-representation of women is a fundamental challenge for democracy`.

2.2. In the view of the Committee the principle of equal treatment and measures to implement it are one of the identifying features that define our society. The Committee therefore supports all political and legal measures taken to achieve this objective. In particular positive action is an important tool to tackle discrimination and to promote equality between women and men. The Commission, Member States and the social partners need to intensify their efforts to develop and promote more positive action programmes for women, in particular in the private sector.

2.3. It is the task of the European Union to help preserve this identity whilst taking into consideration differences between the Member States in terms of history, culture, economic background and social structures. This should be developed into a European blueprint for equal rights, committed to humanism, liberalism and pluralism, and constituting a benchmark for the Community and the rest of the world.

2.4. In this connection the Committee would refer to the UN Convention on the abolition of all forms of discrimination against women (1979): the Committee considers it desirable for this Convention, which is the expression of the will of the international community of nations, to be reflected more strongly in political and legal measures taken by the Community. This would also meet the current expectations of European citizens of both sexes.

2.5. Given the importance of this whole area, the Committee considers that it is not only appropriate but also highly desirable to seek to enshrine legal provisions in primary legislation. The Committee is therefore delighted that the Intergovernmental Conference is already discussing the question of incorporating the principle of equal treatment in primary Community law.

2.6. The Committee therefore calls upon those concerned to incorporate an appropriate Article in the EC Treaty. Such an Article would go beyond a simple ban on discrimination and would include a fundamental call for equality of treatment between men and women.

3. Specific comments

The Committee basically welcomes the Commission proposal, which is designed to clarify the question of equal treatment between men and women.

3.1. The Committee appreciates the difficulties involved in trying to achieve unequivocal clarification of this question. The Committee therefore believes that the Commission should take a clear stand on whether the principle of positive measures - particularly quotas - should in future be admissible and be incorporated in Community law. In the view of the Committee, however, the Commission's present proposal does not provide the definitive clarification the Commission itself claims to be offering.

3.2. The Committee is aware that the conditions for positive measures vary from Member State to Member State. If the Commission is therefore of the view that the right of the individual to equal treatment (as enshrined in the Directive) can be reconciled with the concept of group representation and hence quotas, it should say so clearly and back this up with cogent arguments.

3.3. The Committee would once more point out that, in accordance with the subsidiarity principle, Member States must be free to decide what positive measures they take to implement the principle of equal treatment.

3.4. In the view of the Committee a Directive is not the appropriate legal instrument for arriving at a clear and definitive clarification of this question of principle.

3.5. The Committee takes the view that the proposed amendment to the Directive anticipates future clarification under primary legislation and is therefore unsuitable at the present juncture. The Committee therefore recommends patience until the results of the Intergovernmental Conference are known.

3.6. Given this stand of principle, the Committee has decided not to engage in a detailed examination of the provisions contained in the draft proposal for an amendment.

3.7. As a defender of the interests of European citizens of both sexes, the Committee believes that a topic of such wide-reaching importance as equality of treatment should be tackled by the Intergovernmental Conference in such a way that the revised Treaties to emerge from the Conference should place Member States under an obligation, within the framework of primary legislation, to ensure that men and women are treated equally.

3.8. Finally, the Committee voices the hope that the question of equal treatment, and its furtherance through the adoption of positive measures at Community level, will be regulated in primary legislation in a comprehensible, satisfactory form for European citizens of both sexes. At all events, the common concern should be to achieve the goal set out in Article 1 of Directive 76/207/EEC - putting into effect in the Member States the principle of equal treatment for men and women - on the basis of clear and unequivocal legal provisions.

Brussels, 25 September 1996.

The President of the Economic and Social Committee

Carlos FERRER

() OJ No C 189, 28. 7. 1986, p. 31.

() OJ No C 204, 15. 7. 1996, p. 21.