OPINION OF THE COMMISSION pursuant to Article 251 (2), third subparagraph, point (c) of the EC Treaty, on the European Parliament's amendments to the Council's common position regarding the 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 - AMENDING THE PROPOSAL OF THE COMMISSION pursuant to Article 250 (2) of the EC Treaty

1. Background

The Commission sent the above proposal for a Directive [1] amending 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 based on Article 141(3) of the Treaty to the Parliament and the Council on 11th July 2000.

[1] OJ C 337 E, 7.6.2000 p.204

The Economic and Social Committee gave its Opinion on 25th January 2001. [2]

[2] OJ C 123 25.4.2001, p.81

The European Parliament adopted an Opinion on first reading on 31st May 2001 [3].

[3]

The Commission made an amended proposal on 6th June 2001 [4] .

[4] OJ C 270 E , 25/09/2001 P. 0009 - 0021

The Council reached a unanimous political agreement on a Common Position on 11th June 2001 and adopted formally a Common Position on 23rd July 2001 [5]

[5]

Following the official adoption of the Common Position of the Council concerning the proposal amending Directive 76/207/EEC on 23rd July 2001, the Commission presented a communication on 8th August.

On 24th October 2001 the European Parliament adopted a recommendation which contains fifteen amendments.

This Opinion sets out the Commission's position on the European Parliament's amendments in accordance with Article 251(2)(c) of the EC Treaty.

2. Aim of Commission proposal

This proposal for a Directive amending Directive 76/207/EEC on equal treatment has come about in order to incorporate changes resulting from the Treaty (Article 141(3)) and as a result of the numerous rulings on the original Directive from the European Court of Justice to assure legal clarity and certainty. There was also a need to update the Directive which has been in existence unchanged for 25 years, in the light of the recent legislation adopted on the basis of Article 13 of the Treaty fighting discrimination on grounds other than sex.

3. Commission's Opinion on the amendments proposed by the Parliament

3.1. Summary of the Commission's position

The Commission can accept seven of the amendments either partially or by a reformulation. The Commission cannot accept the remaining eight amendments adopted by the European Parliament.

3.2. Parliament's amendments on second reading

3.2.1. Amendments accepted

3.2.1.1. Amendments 1 and 5 on preventive measures for sexual harassment

The European Parliament proposes to oblige employers to introduce preventive measures for sexual harassment.

The Commission can accept in part the introduction of preventive measures by reformulating the text to encourage employers such as

"Member States shall take the necessary measures to encourage employers to prevent sexual harassment at the workplace in accordance with national law, collective agreements or practice."

3.2.1.2. Amendment 8 on positive action measures

The European Parliament proposes a definition of positive action measures with a reference to Declaration 28 of the Treaty within Article 2, paragraph 4 as well as in the recitals. The Commission can accept in part that a description of positive measures could be given in the recitals providing the wording of the Treaty is respected.

3.2.1.3. Amendment 9 on provisions in contracts or agreements

The Commission accepts that nullity should be obligatory but rejects the removal of the possibility for amendment of the contract.

3.2.1.4. Amendment 13 on the role of independent bodies

The European Parliament wishes to strengthen the role of independent bodies in order to be responsible for the promotion, monitoring and follow-up of all Community legislation in this area. These bodies must also have the funding and human resources necessary to accomplish their task. Moreover, these bodies could act on behalf of the victims of discrimination and not only assist them as adopted in the Common Position.

The Commission considers that the role of these bodies could be strengthened as proposed by the European Parliament to include promotion, monitoring and follow-up.

The Commission cannot accept the sentence on the necessity of funding and human resources of these bodies as this is a matter for Member States, and this is not covered by the legal base of the Directive.

The concern regarding the possibility of these bodies acting on behalf of victims can be accepted by a reformulation of Article 6.3 by expressly mentioning that these designated bodies, are an example of other organisations having an interest in ensuring that the provisions of the directive are complied with.

3.2.1.5. Amendment 14 on equality plans at the company level

The European Parliament wishes to introduce an obligation for the employer to promote the principle of equal treatment by establishing annual equality plans.

The Commission can accept in spirit this idea but under a new formulation for Article 8b such as

"Member States shall take all necessary measures to encourage employers to promote equal treatment of women and men at the work place in a planned and systematic way"

"To this effect, Member States shall encourage employers to provide appropriate information to existing worker representative bodies about equal treatment of women and men in the undertaking. This information may include statistics on proportions of women and men at different levels of the organisation and possible measures to improve the situation."

3.2.1.6. Amendment 15 on reporting on positive action measures

The European Parliament requests the Commission to report every two years on positive action measures submitted by the Member States.

The Commission cannot accept this time period and would instead propose a compromise three year period instead of two years proposed by the European Parliament and five years proposed by the Council's common position.

3.2.2. Amendments not accepted

3.2.2.1. Amendment 2 on extending post employment judicial protection to a person supporting the employee

The Commission cannot accept this amendment as this extension of the post employment judicial protection is considered as inoperable in practice.

3.2.2.2. Amendment 3 on the definition of the Directive's scope

The European Parliament proposes to define the Directive's scope by referring to Articles 2, 3 and 141 of the Treaty.

The amendment is not accepted by the Commission as a reference to Articles 2, 3 and 141 is inappropriate as their scope is broader than that of the Directive.

3.2.2.3. Amendment 4 on the re-wording of the definition of the European Parliament for sexual harassment

The Commission cannot accept the re-wording as elements proposed by the European Parliament are considered inoperable in practice and also, from a technical point of view since there is a repetition of the same wording of the previous paragraph on harassment. Moreover, the definition on harassment ensures consistency with the Article 13 Directives [6].

[6] Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation Official Journal L 303 , 02/12/2000 P. 0016 - 0022 and Council Directive 2000/43/EC of 29 June 2000 implementing the principle of equal treatment between persons irrespective of racial or ethnic origin Official Journal L 180 , 19/07/2000 P. 0022 - 0026

3.2.2.4. Amendment 6 on the general exclusion or restriction on access to a professional activity constituting discrimination

The European Parliament proposes that "any general exclusion of, or restriction on, one sex having access to any kind of professional activity or to the training required to gain access to such an activity constitutes discrimination within the meaning of this Directive".

The Commission cannot accept this proposal as it is already implicitly covered by the Common Position which reflects the case law of the Court in the area of access to specific activities.

3.2.2.5. Amendment 7 on reformulating the text of the Common Position on maternity and paternity leave

The Commission considers that questions on the reconciliation of work and family life should be dealt with in the context of a broader approach concerning the Parental Leave Directive [7] which already covers parental leave in cases of adoption. The relevant provisions in the Common Position's text reflect the real meaning of the case law of the Court as far as maternity leave is concerned by adding an adequate protection in cases of paternity leave for Member States which recognise such a right. Moreover, for questions relating specifically to maternity, these should be dealt with in the context of the Pregnant Workers Directive [8].

[7] Council Directive 96/34/EC of 3 June 1996 on the framework agreement on parental leave concluded by UNICE, CEEP and the ETUC the Council of the European Union, Official Journal L 145 , 19/06/1996 P. 0004 - 0009

[8] 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 (tenth individual Directive within the meaning of Article 16 (1) of Directive 89/391/EEC) Official Journal L 348 , 28/11/1992 P. 0001 - 0008

3.2.2.6 Amendment 10 on sanctions for breach of the Directive

The European Parliament proposes that Member States shall introduce into national legislation effective, proportionate and dissuasive sanctions for breach of the Directive as well as compensation for damage, which may not a priori be restricted by a fixed upper limit.

The Commission cannot accept the proposal as the Common Position reflects the case law of the Court on sanctions as well as on the relevant cases where limits may not be fixed a priori, especially the judgment of the Court of 2 August 1993 in C-271/91 [9] interpreting Article 6 of the current Directive 76/207/EEC.

[9] Helen Marshall v Southampton and South-West Hampshire Area Health Authority. Case C-271/91. European Court Reports 1993 page I-4367

3.2.2.7. Amendment 11 on group action in cases of discrimination even without the consent of the victim of discrimination

Not accepted by the Commission at first reading because such a proposal goes beyond the legal base of the Directive.

3.2.2.8. Amendment 12 extending protection against dismissal to workers' representatives

The Commission cannot accept this idea as workers' representatives are employees who are covered by the text of the Common Position as it stands.

3.3. Conclusion

Pursuant to Article 250(2) of the EC Treaty, the Commission amends its proposal as set out above.