COMMISSION OF THE EUROPEAN COMMUNITIES 
Brussels, 25.11.1997 
COM(97) 624 final 
96/0196 (PRT; 
Re-examined proposal for a 
COUNCIL DIRECTIVE 
on the burden of proof in cases of discrimination based on sex 
(presented by the Commission pursuant to Article 189 c (d) 
of the EC Treaty) 

EXPLANATORY MEMORANDUM 
The initial proposal for a Council Directive on the burden of proof in cases of 
discrimination based on sex, based on Article 2 (2) of Protocol (N°14) on social policy, 
annexed to the Treaty, was submitted by the Commission to the Council on 20 
September 19961. 
The main aim pursued by this proposal is to adjust the rules of the burden of proof in 
cases of discrimination based on sex and to ensure that procedural measures taken by 
Member States in this respect are made more effective. 
The European Parliament and the Economic and Social Committee gave their opinion 
on 10 April 19972 and 27 February 19973. 
On 14 May 1997, the Commission transmitted to the Council an amended proposal4. 
The Council agreed on a common position on 24 July 19975, which was adopted by 
the European Parliament on 6 November 1997 subject to 6 amendments. Out of these 
amendments, the Commission accepted four. 
As regards the amendments accepted, the Commission has the following comments to 
make. 
Amendment 1 
Subject Insert in a recital a reference to the three social security Directives 
(79/7/CEE, 86/378/CEE and 86/613/CEE) 
Comment Is in line with the Commission's opinion to include these three Directives 
in the scope of this Directive 
Amendment 2 
Subject Re-inserts recital 12 of the Commission's original proposal about the 
necessity of adopting additional measures in this area 
Comment Corresponds to the Commission's opinion. This recital explains the need 
to adopt additional measures to ensure an effective implementation of the 
principle of equal treatment 
Amendment 3 
Subject Inserts in the definition of the concept of "indirect discrimination" more 
elements directly derived from the case-law 
OJN°C332, 17.11.1996, p. 11 
OJN°C132, 28.4.1997, p. 219 
OJN° €133,28.4.1997, p. 34 
OJN°C185, 18.6.1997, p. 21 
OJN°C307, 8.10.1997, p. 6 
Comment Is more in line with the case-law of the Court of Justice 
Amendment 4 
Subject Inserts a reference to the three social security Directives in the scope of the 
Directive 
Comment Is in line with the Commission's opinion. The Commission considers that 
the principle laid down by the Court as regards the shift of the burden of 
proof is a general one which should be applied in all Directives aimed at 
upholding the principle of equal treatment between the sexes. 
Re-examined proposal for a 
COUNCIL DIRECTIVE 
on the burden of proof in cases of discrimination based on sex 
COMMON POSITION RE-EXAMINED PROPOSAL 
Recital 8 
Whereas the principle of equal treatment 
was stated in Article 119 of the Treaty 
and in Council Directive 75/117/EEC of 
10 February 1975 on the approximation 
of the laws of the Member States relating 
to the application of the principle of equal 
pay for men and women and in 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; Whereas the principle of equal treatment 
was stated in Article 119 of the Treaty 
and in Council Directive 75/117/EEC on 
equal pay for men and women and in 
Council Directive 76/207/EEC on access 
to employment, vocational training and 
promotion and working conditions, 
Council Directive 86/613/EEC on 
workers engaged in an activity, including 
agriculture, in a self employed capacity, 
and on the protection of motherhood, 
Council Directive 79/7/EEC on social 
security and Council Directive 
86/378/EEC on occupational social 
security schemes 
Recital lia (new) 
Whereas effective implementation of the 
principle of equal treatment requires that 
additional measures be taken in relation to 
procedure and evidence to be provided 
before national courts or other competent 
authorities; 
Article 2.2 Article 2.2 
For the purposes of the principle of equal 
treatment referred to in paragraph 1, 
indirect discrimination exists 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. For the purposes of the principle of equal 
treatment referred to in paragraph 1, 
indirect discrimination exists where an 
apparently neutral provision, criterion or 
practice disproportionately disadvantages 
the members of one sex, unless the aim 
pursued corresponds to a real need on the 
part of the undertaking or meets a 
necessary aim of the policy of a Member 
State and can be justified by objective 
s 
factors unrelated to sex, and the means of 
achieving that aim are appropriate and 
necessary. 
Article 3. La 
1. The Directive shall apply to: 
a) the situations covered by Article 119 of 
the Treaty and by Directives 75/117/EEC, 
76/207/EEC and, insofar as discrimination 
based on sex is concerned, 92/85/EEC 
and 96/34/EC; 1. The Directive shall apply to: 
a) the situations covered by Article 119 of 
the Treaty and by Directives 75/117/EEC, 
76/207/EEC, 79/7/EEC, 86/378/EEC, 
86/613/EEC and, insofar as discrimination 
based on sex is concerned, 92/85/EEC 
and 96/34/EC; 
The Commission cannot accept the following amendments proposed by the 
Parliament 
Amendment 5 
Subject Insertion of a new Article 4a (about procedures) 
Comment The deletion of Article 5 of the Commission's original proposal in the 
common position, that the amendment wishes to re-insert, does not really 
do any harm. In fact, that Article provided for something which already 
exists, in one way or another, in all the Member States' legal systems. 
Amendment 6 
Subject 
Comment Inserts the obligation for the Member States to transmit on a regular basis 
information on the application of the Directive to the Commission, and 
for the Commission to draw up a report every three years. 
The wording of the common position is acceptable and is the outcome of a 
compromise which was difficult to reach. 
ISSN 0254-1475 
COM(97) 624 final 
DOCUMENTS 
EN 05 06 04 
Catalogue number : CB-CO-97-641-EN-C 
ISBN 92-78-28037-2 
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