5. 7. 88 Official Journal of the European Communities No C 176/5 
II 
(Preparatory Acts) 
COMMISSION 
Proposal for a Council Directive on the burden of proof in the area of equal pay and equal 
treatment for women and men 
COM(88) 269 final 
(Submitted by the Commission on 27 May 1988) 
(88/C 176/09) 
THE COUNCIL OF THE EUROPEAN COMMUNITIES, 
Having regard to the Treaty establishing the European 
Economic Community, and in particular Articles 100 and 
235 thereof, 
Having regard to the proposal from the Commission, 
Having regard to the opinion of the European 
Parliament, 
Having regard to the opinion of the Economic and 
Social Committee, 
Whereas the implementation of the principle of equal 
pay for men and women workers, as laid down in Article 
119 of the Treaty, forms an integral part of the estab­
lishment and functioning of the common market; 
Whereas on 10 February 1975 the Council adopted 
Directive 75/117/EEC on the approximation of the laws 
of the Member States relating to the application of the 
principle of equal pay for men and women ('); 
Whereas, as regards other aspects of equality of 
treatment between men and women, on 9 February 1976 
the Council adopted Directive 76/207/EEC on the 
implementation of the principle of equal treatment for 
men and women as regards access to employment, voca­
tional training and promotion, and working 
conditions (2) and on 11 December 1986 Council 
Directive 86/613/EEC on the implementation of the 
principle of equal treatment between men and women 
engaged in an activity, including agriculture, in a self-
employed capacity, and on the protection of self-
employed women during pregnancy and motherhood (}); 
Whereas, as regards equality of treatment between men 
and women in matters of social security, on 19 
December 1978 the Council adopted Directive 
(') OJ No L 45, 19. 2. 1975, p. 19. 
O OJ No L 39, 14. 2. 1976, p. 40. 
(5) OJ No L 359, 19. 12. 1986, p. 56. 79/7/EEC on the progressive implementation of the 
principle of equal treatment for men and women in 
matters of social security (4) and on 24 July 1986 
Directive 86/378/EEC on the implementation of the 
principle of equal treatment for men and women in 
occupational social security schemes (5); 
Whereas the Commission, in its communication to the 
Council of 20 December 1985 on a Medium Term 
Community Programme on Equal Opportunities for 
Women 1986 to 1990 undertook to put forward a 
Community legal instrument on the principle of the 
reversal of the burden of proof applying to all equal 
opportunities measures (b); 
Whereas the Council, in its resolution of 24 July 1986 on 
the promotion of equal opportunities for women 
approved the general aims of the Commission communi­
cation and called upon Member States to take action to 
'ensure effective application of existing equal treatment 
legislation, particularly through . . . the examination of 
all aspects of the problems relating to the establishment 
of the burden of proof (7); 
Whereas the Council, in its resolution of 22 December 
1986 on an action programme on employment growth, 
expressed its commitment to take the decisions and 
measures necessary to achieve an increase in the equality 
of access to, and opportunity within, the labour market 
for women by 'the implementation of the Community's 
Medium Term Programme 1986 to 1990' (8); 
Whereas it is necessary to ensure respect in this area for 
the principle of equality as laid down in Article 119 of 
the Treaty and the Council Directives; 
(4) OJ No L 6, 10. 1. 1979, p. 24. 
(5) OJ No L 225, 12. 8. 1986, p. 40. 
(6) Supplement 3/86 — Bull. EC. 
O OJ No C 203, 12. 8. 1986, p. 2. 
(') OJ No C 340, 31. 12. 1986, p. 2. 
No C 176/6 Official Journal of the European Communities 5. 7. 88 
Whereas the effective implementation of the principle of 
equality as laid down in those provisions requires that 
additional measures be taken in relation to procedure 
and evidence before national courts or other competent 
authorities; 
Whereas differences persist between the Member States 
in this field; whereas, therefore, it is necessary to 
approximate national provisions with regard to the appli­
cation of the principle of equality; 
Whereas in certain respects the Treaty does not confer 
the specific powers necessary for the actions required, 
HAS ADOPTED THIS DIRECTIVE: 
SECTION I 
General provisions 
Article 1 
1. The purpose of this Directive is to ensure that 
measures taken by Member States pursuant to the 
principle of equality between women and men to enable 
all persons who consider themselves wronged by failure 
to apply to them the principle of equality to pursue their 
claims by judicial process after possible recourse to other 
competent authorities are made more effective. 
2. For the purposes of this Directive, the principle of 
equality is that enshrined in Article 119 of the Treaty 
and Council Directives 75/117/EEC, 76/207/EEC, 
79/7/EEC, 86/378/EEC and 86/613/EEC. 
Article 2 
1. This Directive shall apply to: 
(a) all the Community measures concerning the principle 
of equality between women and men referred to in 
Article 1 (2) above; 
(b) any such measure adopted in the future which does 
not expressly exclude its application; 
(c) any civil or administrative procedure concerning the 
public or private sectors which provides for means of 
redress under national law in implementation of the 
above measures. 
2. This Directive shall not apply to any criminal 
procedure, notwithstanding that such procedure may 
provide for means of redress under national law in 
implementation of the above measures. SECTION II 
Specific provisions 
Article 3 
THE MODIFICATION OF THE BURDEN OF PROOF 
1. Member States shall ensure that, where persons 
who consider themselves wronged by failure to apply to 
them the principle of equality establish at any.stage of 
proceedings before a court or other competent authority, 
as the case may be, a presumption of discrimination, it 
shall be for the respondent to prove that there has been 
no contravention of the principle of equality. The 
complainant shall have the benefit of any doubt that 
remains. 
2. A presumption of discrimination is established 
where a complainant shows a fact or a series of facts 
which would, if not rebutted, amount to direct or 
indirect discrimination. 
3. This Directive shall be without prejudice to the 
right of Member States to impose the legal burden of 
proof upon the respondent. 
Article 4 
PROCEDURES 
Member States shall introduce into their national legal 
systems such measures as are necessary to ensure that: 
(a) courts, tribunals and other competent authorities 
may order any measure necessary to ensure the 
effective examination of any complaint of discrimi­
nation; 
(b) the parties to the dispute are provided with all 
relevant information in the possession of either party 
or reasonably obtainable by either party which is 
necessary for them to present their case, disclosure 
of which would not substantially damage the 
interests of the other party for purposes other than 
the litigation concerned. 
Article 5 
INDIRECT DISCRIMINATION 
1. For the purposes of the principle of equality 
referred to in Article 1 (2), indirect discrimination exists 
where an apparently neutral provision, criterion or 
practice disproportionately disadvantages the members of 
one sex, by reference in particular to marital or family 
status, and is not objectively justified by any necessary 
reason or condition unrelated to the sex of the person 
concerned. 
5. 7. 88 Official Journal of the European Communities No C 176/7 
2. Member States shall ensure that the intentions of 
the respondent are not taken into account in determining 
whether the principle of equality has been infringed in 
any individual case. 
SECTION III 
Final provisions 
Article 6 
Member States shall take care that the provisions 
adopted pursuant to this Directive, together with the 
provisions already in force, are brought to the attention 
of all relevant persons by all appropriate means, for 
example at their place of employment. 
Article 7 
1. Member States shall bring into force the laws, 
regulations and administrative provisions necessary in 
order to comply with this Directive within three years of 
its notification and shall immediately inform the 
Commission thereof. 
2. Member States shall abolish or amend any 
provisions contrary to this Directive and shall take the 
THE COUNCIL OF THE EUROPEAN COMMUNITIES, 
Having regard to the Treaty establishing the European 
Economic Community and in particular Articles 42 and 
43 thereof, 
Having regard to the proposal from the Commission, 
Having regard to the opinion of the European 
Parliament, 
Whereas the European Council of 11 and 12 February 
1988 laid down as a guideline the elimination of 
potential costs inherent in stocks of agricultural 
products; 
"Whereas, in the case of alcohol from distillation as 
provided for in Article 39 of Council Regulation (EEC) 
No 822/87 ('), as last amended by Commission Regu­
lation (EEC) No 3992/87 (2), public stocks are in future 
to be depreciated by the difference between the buying-
in price and the foreseeable disposal value pursuant to measures necessary to ensure that similar provisions in 
collective agreements, individual contracts of 
employment, internal rules of undertakings or in rules 
governing the independent occupations and professions 
are likewise abolished or amended. 
Article 8 
1. Within two years following expiry of the three year 
period laid down in Article 7 (1), Member States shall 
forward all necessary information to the Commission to 
enable it to draw up a report on the application of this 
Directive for submission to the Council and the 
European Parliament. 
2. Every three years thereafter, Member States shall 
transmit information to the Commission with respect to 
progress made in the application of this Directive and 
provisions already in force, trends in the use of the 
provisions contained therein and their evolution to 
enable the Commission to draw up a report for the 
Council and the European Parliament every three years. 
Article 9 
This Directive is addressed to the Member States. 
Articles 7 and 8 of Council Regulation (EEC) No 
1883/78 of 2 August 1978 laying down general rules for 
the financing of interventions by the European Agri­
cultural Guidance and Guarantee Fund, Guarantee 
Section (3), as last amended by Regulation (EEC) No 
2095/87 (4); 
Whereas, as regards alcohol from distillation as provided 
for in Articles 35 and 36 of Regulation (EEC) No 
822/87, the EAGGF is to bear only the costs arising 
from its disposal in sectors other than on the markets for 
alcohol and spirituous beverages produced in the 
Community; whereas, to devaluate such alcohol in a way 
similar to that by which alcohol from distillation as 
provided for in Article 39 of Regulation (EEC) No 
822/87 is depreciated, a special provision is required; 
whereas that provision should be inserted into Regu­
lation (EEC) No 822/87, Proposal for a Council Regulation (EEC) amending Regulation (EEC) No 822/87 on the 
common organization of the market in wine 
COM(88) 281 final 
(Submitted by the Commission on 30 May 1988) 
(88/C 176/10) 
(') OJ No L 84, 27. 3. 1987, p. 1. 
(2) OJ No L 377, 31. 12. 1987, p. 20. O OJ No L 216, 5. 8. 1978, p. 1. 
(4) OJ No L 196, 17. 7. 1987, p. 3.