COMMON POSITION (EC) No 37/97 adopted by the Council on 24 July 1997 with a view to the adoption of Council Directive 97/. . ./EC on the burden of proof in cases of discrimination based on sex (97/C 307/02)

THE COUNCIL OF THE EUROPEAN UNION,

Having regard to the Agreement on social policy annexed to the Protocol (No 14) on social policy annexed to the Treaty establishing the European Community, and in particular Article 2 (2) thereof,

Having regard to the proposal from the Commission (1),

Having regard to the opinion of the Economic and Social Committee (2),

Acting, in accordance with the procedure laid down in Article 189c of the Treaty, in cooperation with the European Parliament (3),

(1) Whereas, on the basis of the Protocol on social policy annexed to the Treaty, the Member States, with the exception of the United Kingdom of Great Britain and Northern Ireland (hereinafter called 'the Member States`), wishing to implement the 1989 Social Charter, have concluded an Agreement on social policy;

(2) Whereas the Community Charter of the Fundamental Social Rights of Workers recognizes the importance of combating every form of discrimination, including discrimination on grounds of sex, colour, race, opinions and beliefs;

(3) Whereas paragraph 16 of the Community Charter of the Fundamental Social Rights of Workers on equal treatment for men and women, provides, inter alia, that 'action should be intensified to ensure the implementation of the principle of equality for men and women as regards, in particular, access to employment, remuneration, working conditions, social protection, education, vocational training and career development`;

(4) Whereas, in accordance with Article 3 (2) of the Agreement on social policy, the Commission has consulted management and labour at Community level on the possible direction of Community action on the burden of proof in cases of discrimination based on sex.

(5) Whereas the Commission, considering Community action advisable after such consultation, once again consulted management and labour on the content of the proposal contemplated in accordance with Article 3 (3) of the same Agreement; whereas the latter have sent their opinions to the Commission;

(6) Whereas, after the second round of consultation, neither management nor labour have informed the Commission of their wish to initiate the process - possibly leading to an agreement - provided for in Article 4 of the same Agreement;

(7) Whereas, in accordance with Article 1 of the Agreement, the Community and the Member States have set themselves the objective, inter alia, of improving living and working conditions; whereas effective implementation of the principle of equal treatment for men and women would contribute to the achievement of that aim;

(8) Whereas the principle of equal treatment was stated in Article 119 of the Treaty, in Council Directive 75/117/EEC of 10 February 1975 on the approximation of the laws of the Member States relating to the application or the principle of equal pay for men and women (4) 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 (5);

(9) Whereas 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 (6) also contributes to the effective implementation of the principle of equal treatment for men and women; whereas that Directive should not work to the detriment of the abovementioned Directives on equal treatment; whereas, therefore, female workers covered by that Directive should likewise benefit from the adaptation of the rules on the burden of proof;

(10) Whereas Council Directive 96/34/EC of 3 June 1996 on the framework agreement on parental leave concluded by Unice, CEEP and the ETUC (7) is also based on the principle of equal treatment for men and women;

(11) Whereas the references to 'judicial process` and 'court` cover mechanisms by means of which disputes may be submitted for examination and decision to independent bodies which may hand down decisions that are binding on the parties to those disputes;

(12) Whereas the expression 'out-of-court procedures` means in particular procedures such as conciliation and mediation;

(13) Whereas the appreciation of the facts from which it may be presumed that there has been direct or indirect discrimination is a matter for national judicial or other competent bodies, in accordance with national law or practice;

(14) Whereas it is for the Member States to introduce, at any appropriate stage of the proceedings, rules of evidence which are more favourable to plaintiffs;

(15) Whereas it is necessary to take account of the specific features of certain Member States' legal systems, inter alia where an inference of discrimination is drawn if the respondent fails to produce evidence that satisfies the court or other competent authority that there has been no breach of the principle of equal treatment;

(16) Whereas Member States need not apply the rules on the burden of proof to proceedings in which it is for the court or other competent body to investigate the facts of the case; whereas the procedures thus referred to are those in which the plaintiff is not required to prove the facts, which it is for the court or competent body to investigate;

(17) Whereas plaintiffs could be deprived of any effective means of enforcing the principle of equal treatment before the national courts if the effect of introducing evidence of an apparent discrimination were not to impose upon the respondent the burden of proving that his practice is not in fact discriminatory;

(18) Whereas the Court of Justice of the European Communities has therefore held that the rules on the burden of proof must be adapted when there is a prima facie case of discrimination and that, for the principle of equal treatment to be applied effectively, the burden of proof must shift back to the respondent when evidence of such discrimination is brought;

(19) Whereas it is all the more difficult to prove discrimination when it is indirect; whereas it is therefore important to define indirect discrimination;

(20) Whereas the aim of adequately adapting the rules on the burden or proof has not been achieved satisfactorily in all Member States and, in accordance with the principle of subsidiarity stated in Article 3b of the Treaty and with that of proportionality, that aim must be attained at Community level; whereas this Directive confines itself to the minimum action required and does not go beyond what is necessary for that purpose,

HAS ADOPTED THIS DIRECTIVE:

Article 1 Aim

The aim of this Directive shall be to ensure that the measures taken by the Member States to implement the principle of equal treatment are made more effective, in order to enable all persons who consider themselves wronged because the principle of equal treatment has not been applied to them, to have their rights asserted by judicial process after possible recourse to other competent bodies.

Article 2 Definitions

1. For the purposes of this Directive, the principle of equal treatment shall mean that there shall be no discrimination whatsoever based on sex, either directly or indirectly.

2. For the purposes of the principle of equal treatment referred to in paragraph 1, indirect discrimination 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.

Article 3 Scope

1. This Directive shall apply to:

(a) the situations covered by Article 119 of the Treaty and by Directives 75/117/EEC, 76/207/EEC and, in so far as discrimination based on sex is concerned, 92/85/EEC and 96/34/EC;

(b) any civil or administrative procedure concerning the public or private sector which provides for means of redress under national law pursuant to the measures referred to in (a) with the exception of out-of-court procedures of a voluntary nature or provided for in national law.

2. This Directive shall not apply to criminal procedures, unless otherwise provided by the Member States.

Article 4 Burden of proof

1. Member States shall take such measures as are necessary, in accordance with their national judicial systems, to ensure that, when persons who consider themselves wronged because the principle of equal treatment has not been applied to them establish, before a court or other competent authority, facts from which it may be presumed that there has been direct or indirect discrimination, it shall be for the respondent to prove that there has been no breach of the principle of equal treatment.

2. This Directive shall not prevent Member States from introducing rules of evidence which are more favourable to plaintiffs.

3. Member States need not apply paragraph 1 to proceedings in which it is for the court or competent body to investigate the facts of the case.

Article 5 Information

Member States shall ensure that measures taken pursuant to this Directive, together with the provisions already in force, are brought to the attention of all persons concerned by all appropriate means.

Article 6 Non-regression

Implementation of this Directive shall under no circumstances be sufficient grounds for a reduction in the general level of protection of workers in the areas to which it applies, without prejudice to the Member States' right to respond to changes in the situation by introducing laws, regulations and administrative provisions which differ from those in force on the notification of this Directive, provided that the minimum requirements of this Directive are complied with.

Article 7 Implementation

The Member States shall bring into force the laws, regulations and administrative provisions necessary for them to comply with this Directive by 1 January 2001. They shall immediately inform the Commission thereof.

When the Member States adopt those measures they shall contain a reference to this Directive or shall be accompanied by such a reference on the occasion of their official publication. The methods of making such references shall be laid down by the Member States.

The Member States shall communicate to the Commission, within two 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.

Article 8

This Directive is addressed to the Member States.

Done at . . .

For the Council

The President

(1) OJ C 332, 7. 11. 1996, p. 11 and OJ C 185, 18. 6. 1997, p. 21.

(2) OJ C 133, 28. 4. 1997, p. 34.

(3) Opinion of the European Parliament of 10 April 1997 (not yet published in the Official Journal), common position of the Council of 24 July 1997 and Decision of the European Parliament of . . . (not yet published in the Official Journal).

(4) OJ L 45, 19. 2. 1975, p. 19.

(5) OJ L 39, 14. 2. 1976, p. 40.

(6) OJ L 348, 28. 11. 1992, p. 1.

(7) OJ L 145, 19. 6. 1996, p. 4.

STATEMENT OF THE COUNCIL'S REASONS

I. INTRODUCTION

1. After consulting management and labour in accordance with the procedures provided for in Article 3 (2) and (3) of the Agreement on social policy annexed to Protocol No 14 to the EC Treaty, the Commission submitted to the Council on 20 September 1996, on the basis of Article 2 (2) of that Agreement, a proposal for a Directive on the burden of proof in cases of discrimination based on sex.

2. The European Parliament and the Economic and Social Committee delivered their opinions on 10 April 1997 and on 27 February 1997 respectively.

3. Pursuant to Article 189a (2) of the EC Treaty, the Commission submitted to the Council by letter dated 15 May 1997 an amended proposal that took account of the European Parliament's amendments.

4. In accordance with Article 189c of the EC Treaty, the Council adopted the common position on 27 July 1997.

II. OBJECTIVE

The main aim of the Directive is to adjust the rules on the burden of proof in cases of discrimination based on sex. This implies that rather than the plaintiff (employee) having to prove the existence of discrimination, it is for the respondent (employer) to justify the apparent difference in treatment.

This Directive, which should enable the case-law of the Court of Justice to be uniformly applied in the Member States, observes the principle of proportionality as it lays down minimum requirements and leaves Member States some leeway to determine the arrangements for applying the principle of the adjustment of the rules on the burden of proof.

III. ANALYSIS OF THE COMMON POSITION

1. General comments

1. Article 119 of the EC Treaty, which lays down the principle that men and women should receive equal pay for equal work, made it possible for a policy for the promotion of equal opportunities between men and women to be developed at Community level by the adoption of a series of major Directives aimed at compliance with that principle. However, despite the adoption of these texts, there still remain cases of discrimination based on sex, mainly because persons who consider themselves injured find it difficult to prove before a court that there has been discrimination against them. Since 1989 the Court of Justice has been steadily developing consistent case-law aimed at remedying this situation. It is in this context that the Directive on the adjustment of the rules on the burden of proof should be seen.

The Council supports the objective of the proposed Directive, in that it makes it possible to consolidate the Court of Justice's rulings as applied in the Member States. It is in this spirit that it examined the proposal and its amendment, as submitted to it by the Commission. However, it felt it should deviate therefrom on a number of points. Below are its reasons in each individual case.

2. At the European Council in Amsterdam (16 to 17 June 1997) the United Kingdom stated its intention to accede to the social provisions of the new Treaty and to accept the Directives already adopted or which might be adopted before the entry into force of the new Treaty under the Social Agreement. As the European Council agreed that the United Kingdom would henceforth be asked to express its viewpoint during discussions on such acts, the Presidency and the Member States have made every effort to reach a solution that takes account of the United Kingdom's position on the draft Directive, with due regard for the provisions of the social Protocol and the Council's rules of procedure.

2. Council's amendments to the amended Commission proposal

(Unless otherwise stated, the Articles referred to are those of the common position)

2.1. Preamble (recitals 15 and 20)

1. At its meeting on 17 July 1997 the Council had agreed to add a recital stressing the need to take account of the specific features of some of the Member States' legal systems in connection with Article 4 (3), which in some cases authorizes a derogation from the principle laid down in paragraph 1.

The Council also included in the said recital a reference to the situation in which an inference of discrimination might be drawn if the respondent fails to convince the court or competent authority that there has been no breach of the principle of equal treatment.

2. As the slightly amended wording proposed by the Commission for the last recital contains no substantive amendment, the Council decided not to adopt it.

2.2. Reference to marital or family status (Article 2 (1))

While sharing the Commission's concern also to fight discrimination based on marital status or family circumstances, the Council did not deem it advisable, within the framework of the definition of the principle, to refer specifically - and hence to confine itself - within the context of this Directive, to just these two examples of discrimination based on sex.

2.3. Definition of indirect discrimination (Article 2 (2))

The Council departed from the Commission's definition of the concept 'indirect discrimination` only in that it did not fully adopted the terms used by the Court of Justice in its judgments on equal treatment. However, it stressed that all the essential aspects for the definition of this concept, as they appeared in the Commission's initial proposal, had been included in the text it had adopted, i.e. the reference to an apparently neutral criterion or practice which disadvantages a substantially higher proportion of the members of one sex, unless this criterion or practice is appropriate and necessary and can be justified by objective factors.

2.4. Scope: reference to specific Directives (Article 3 (1) (a))

The reference to Directive 96/34/EC on parental leave was added in accordance with the Commission's amended proposal, but the text makes no reference to Directives 79/7/EEC, 86/378/EEC and 86/613/EEC, since numerous delegations had misgivings about the inclusion of the social security field in the scope of the Directive at this stage.

To the extent that Directives 92/85/EEC and 96/34/EC do not relate to equal treatment in the strict sense, as the former concerns the implementation of measures aimed at improving the safety and health of pregnant workers and workers who have recently given birth or are breastfeeding, and the latter parental leave, it was necessary to specify that they fell within the scope of the Directive only in cases of discrimination based on sex.

2.5. Reference to future Community provisions (Article 3 (1) (b) of the Commission proposal)

The Council did not adopt the Commission's suggestion regarding the inclusion of situations covered by any measures adopted in future in connection with the principle of equal treatment, as it considered that the need for a reference to the Directive on the burden of proof should be assessed on a case-by-case basis.

2.6. Reference to indirect discrimination (Article 4 (1))

The Council did not deem it useful to include the words 'as defined in Article 2` in connection with the principle of equal treatment, since reference to this provision was implicit in the text of Article 4.

As regards the facts to be taken into account, the Court's case-law already accepts that the expression 'the facts` can be taken to mean a single fact of some importance.

Article 2 of this Directive refers in detail to indirect discrimination. As a result, if the type of discrimination referred to in Article 4 (1) is not specified, it is understood that it covers both indirect and direct discrimination.

2.7. Benefit of the doubt (Article 4 (1))

The Council did not want to specify that the plaintiff would benefit from any doubt that might subsist. Most delegations considered that this was primarily a criminal law concept and that since penal procedures were explicitly excluded from the scope of the Directive, it should not be included, particularly as the benefit of the doubt was generally given to the defendant whereas in this context it would be given to the plaintiff.

Finally, a measure of this sort could interfere with the powers that properly belonged with the court. It was for the court to which the case had been referred and for it alone to determine whether the evidence submitted to it was relevant. Where the court felt that this evidence was not sufficient to constitute proof, it lay within its powers to rule on whether or not the benefit of any doubt remaining should be given to the plaintiff.

2.8. Non-application of the adjustment of the rules on the burden of proof (Article 4 (3))

Certain administrative procedures in force in a number of Member States provide that, after lodging a complaint, persons considering themselves wronged are exempt from proving the facts as the investigation then becomes the responsibility of the court to which the case has been referred. The Council therefore added this third paragraph with a view to consistency, since in proceedings of this type the proof of discrimination is no longer the responsibility of the parties.

In any event, this provision covers a limited number of cases, involving procedures specific to the legal systems of certain Member States.

2.9. Procedures (Article 5 of the Commission proposal)

In the Council's view, the measures proposed by the Commission with regard to the provision of information to the parties to a dispute are superfluous because as the burden of proof is in future to be the employer's responsibility, it follows that he will in any case be induced to provide the court with all the documents needed to prove that he has not breached the principle of equal treatment.

2.10. Reference to positive action (Article 6)

The Council considered that the specific reference to positive action measures appearing in the Commission's amended proposal was not suitable in this context, especially since this question was linked to the proposal submitted by the Commission to the Council to follow up the Court's judgment in the Kalanke case.

2.11. Date of implementation (Article 7 (1))

Some Member States felt that 1 January 2000, the date initially planned, was too early and could not be adopted. The internal procedures needed to transpose this type of Directive were sometimes complex, particularly as they required multiple consultations and therefore warranted a sufficient time limit for implementation.

2.12. Report on implementation (Article 7 (3))

The provisions on implementation of the Directive were amended along the lines suggested by the Commission in its amended proposal, with the stipulation that the Commission would submit a report to the Council and the European Parliament on the application of the Directive two years after its implementation. However, the Council did not deem it useful to repeat this exercise systematically every three years. In this connection the text of the Council's common position also reflects the position already adopted in Article 12 (2) of Directive 86/378/EEC (OJ L 225/42, 12. 8. 1986, p. 40).

3. Amendments made by the European Parliament

3.1. European Parliament's amendments accepted by the Commission

In its amended proposal, the Commission reproduced word for word or in a slightly amended form amendments 4, 6, 7, 8, 9, 12, 14, 17, 19 and 20.

The Council adopted the following amendments:

- amendment 4 in the form of a separate recital (recital 10),

- amendment 9 (see III 2.4 of the current statement of reasons),

- amendment 12, in part (see III 2.6 of the current statement of reasons),

- amendment 14,

- amendment 20, in part (see III 2.12 of the current statement of reasons).

However, the Council did not adopt the following amendments:

- amendment 6 (see III 2.1 (2) of the current statement of reasons),

- amendment 7 (see III 2.2 of the current statement of reasons),

- amendment 8 (see III 2.3 of the current statement of reasons),

- amendment 17 (see III 2.10 of the current statement of reasons),

- amendment 19 (see III 2.11 of the current statement of reasons).

3.2. European Parliament amendments not adopted by the Commission

The Commission did not adopt amendments 2, 3, 5, 10, 11, 13, 15, 16 and 18 in its amended proposal.

IV. ADDITIONAL ASPECTS OF THE COMMON POSITION

In adopting its common position, the Council requested that in the report to be submitted by the Commission in accordance with Article 7, the latter also examines the scope of the Directive. It also requested that in this context, due account be taken of the Court's case-law in all relevant social policy areas covered by the general principle of non-discrimination.