COMMISSION OF THE EUROPEAN COMMUNITIES 
Brussels, 14.05.1997 
COM(97) 202 final 
96/0196 (PRT) 
Amended 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 a (2) 
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 1996(1). 
The main aim pursued by this proposal is to adjust the rules on 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 Committe gave their opinion 
on 10 April 1997(2) and 27 February 1997(3) respectively. 
In drawing up this amended proposal the Commission took into account the 
amendments from the European Parliament which aim at strengthening the main 
provisions of its original proposal, and in particular : 
a) the definition of the concept of "indirect discrimination". The amended 
proposal is more in line with the current case-law of the Court of Justice; 
b) the scope of the Directive. The amended proposal updates the original 
proposal and takes into account Directive 96/34/EC on the framework 
agreement on parental leave concluded by UNICE, CEEP and ETUC; 
c) the adjustment of the burden of proof. The amended proposal makes more 
apparent the link with the concept of indirect discrimination defined in Article 2 
of the proposal and the circumstances in which an adjustment of the burden of 
proof can occur. 
This amendment is presented by the Commission under the terms of Article 189a (2) of 
the Treaty. 
(,) OJN°C332, 17.11.1996, p. 11 
(2) OJ N° ... 
(3) OJN°... 
Amended Proposal for a Council Directive on the burden of proof in cases of 
discrimination based on sex 
COMMISSION PROPOSAL AMENDED COMMISSION 
PROPOSAL 
THE COUNCIL OF THE EUROPEAN 
UNION, 
Having regard to the Agreement on social 
policy annexed to the Protocol (N°14), 
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 
referred to in Article 189c of the EC 
Treaty, in cooperation with the European 
Parliament, 
( 1 ) Whereas, on the basis of the Protocol 
on social policy annexed to the 
Treaty, the Member States, except 
the United Kingdom of Great Britain 
and Northern Ireland (hereinafter 
called "the Member States"), wishing 
to implement the Social Charter of 
1989, have established an Agreement 
on social policy; 
(2) Whereas the Community Charter of 
the Fundamental Social Rights of 
Workers acknoledges the importance 
of combatting all forms of 
discrimination, especially those based 
on sex, colour, race, opinions and THE COUNCIL OF THE EUROPEAN 
UNION, 
(,) OJ N° C 
(2) OJ N° C 
beliefs ; whereas on 13 December 
1995 the Commission adopted a 
Communication0} on racism, 
xenophobia and anti-semitism; 
(3) Whereas paragraph 16 of the 
Community Charter of the 
Fundamental Social Rights of 
Workers concerning 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, 
eduction, vocational training and 
career development"; 
(4) Whereas the Council, despite the 
existence of a broad consensus 
amongst the majority of the Member 
States, has not been able to act on the 
proposal(2) for a directive on the 
burden of proof in the area of equal 
pay and equal treatment for women 
and men; 
(5) Whereas the European Parliament in 
its Resolution of January 1994(3) on 
the White Paper on European social 
policy asked the Commission to 
present a proposal for a directive 
regarding the burden of proof; 
(6) Whereas the Commission, in 
accordance with Article 3(2) of the 
Agreement on social policy, has 
consulted the social partners at 
Community level on the direction 
Community action might take with 
respect to the burden of proof in 
cases of discrimination based on sex; 
(7) Whereas the Commission, considering 
Community action advisable after 
such consultation, once again 
consulted those social partners on the 
content of the envisaged proposal in 
accordance with Article 3(3) of the 
(,)COM(95)653 final 
(2) OJ N°C 176, 5.7.1988, p.5 
(3) OJN°C43, 20.5.1995, p.63 
said Agreement ; and whereas the 
latter forwarded their opinion to the 
Commission; 
(8) Whereas, after the second round of 
consultation, the social partners have 
not informed the Commission on their 
wish to initiate the process - possibly 
leading to an agreement - provided 
for in Article 4 of the said 
Agreement; 
(9) Whereas, in accordance with Article I 
of the Agreement, the Community 
and the Member States have set 
themselves the objective of improving 
living and working conditions; 
whereas effective implementation of 
the principle of equal treatment for 
men and women contributes to 
achieving this aim; 
(ÎO)Whereas the principle of equal 
treatment has been set out in Article 
119 of the EC Treaty and in Council 
Directive 75/117/EEC on equal pay 
for men and women, as well as 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; (10) Whereas the principle of equal 
treatment has been set out in Article 
119 of the EC Treaty and in Council 
Directive 75/117/EEC on equal pay 
for men and women0 \ as well as in 
Council Directive 76/207/EEC on 
access to employment, vocational 
training and promotion and working 
conditions<2) Council Directive 
86/613/EEC on workers engaged in 
an activity, including agriculture, in a 
self-employed capacity, and on the 
protection of motherhood(3) , Council 
Directive 79/7/EEC on social 
security(4), Council Directive 
86/378/EEC on occupational social 
security schemes(5), Council Directive 
96/34/EC on the framework 
agreement on parental leave 
concluded by UNICE, CEEP and the 
ETUC(6) 
U)OJN°L 45,19.2.1975, p. 19 
(2)OJN°L39, 14.2.1976, p.40 
(3)OJN°L359, 19.2.1986, p.56 
<4)OJN°L6, 10.1.1979, p.24 
(5) OJ N° L 225, 12.8.1986, p.40, as amended by 
Directive 96/97/EC of 20.12.1996, OJ L 46 of 
17.2.97, p. 20 
(6)OJN°L 145, 19.6.1996, p.4 
(ll)Whereas Council Directive 92/85 on 
health and safety at work of pregnant 
workers and workers who have 
recently given birth or are 
breastfeeding0} also contributes to 
effectively achieving the principle of 
equal treatment between men and 
women, whereas that Directive 
should not work to the detriment of 
the aforementioned directives 
concerning equal treatment; whereas 
workers covered by that Directive 
should equally benefit from the 
change of the rules regarding the 
burden of proof; 
(12)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; 
(13)Whereas plaintiffs would 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 was not to 
impose upon the defendant the 
burden of proving that his practice is 
not in fact discriminatory; 
(14)Whereas the Court of Justice of the 
European Communities has therefore 
held (2) that the rules regarding the 
burden of proof must change when 
there is a prima facie case of 
discrimination and that, for the 
principle of equal treatment to be 
applied effectively, it must revert to 
(,) OJ N°L 348, 28.11.1992,p.l 
{2) Judgment of 17 October 1989 in Case C-109/88, 
Danfoss,\\989JECR3199, paragraph 16; judgment 
of 30 June 1988 in Case C-138/86, Commission v. 
France, [1988JECR 3559, paragraph 27); judgment 
of 27 October 1993 in Case C-127/92 Encierby v. 
Frenchay Health Authority, [1993JECR 1-5535, 
paragraphs 13 and 14; and judgement of 31 May 1995 
in Case C-400/93, Royal Copenhagen, [1995] ECR 
1-1275, paragraph 24. 
the defendant when evidence of such 
discrimination is brought; 
(ÎS)Whereas it is all the more difficult to 
prove that discrimination exists when 
it is indirect; and whereas it is 
therefore important to define indirect 
discrimination precisely; 
(16) Whereas the aim of achieving an 
adequate shift in the burden of proof 
is not achieved satisfactorily in the 
Member States and in accordance 
with the principles of subsidiarity and 
proportionality set out in Article 3 b 
of the Treaty establishing the 
European Community; this 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. (15)Whereas it is ail the more difficult to 
prove that discrimination exists when 
it is indirect; and whereas, given that 
the concept has not been 
incorporated into national law in ail 
Member States, it is therefore 
important to define indirect 
discrimination precisely, and provide 
for criteria whereby it can be 
established whether or not indirect 
discrimination exists; 
(16)Whereas the aim of ensuring an 
adequate shift in the burden of proof 
has not been achieved satisfactorily in 
the Member States and in accordance 
with the principles of subsidiarity and 
proportionality set out in Article 3b 
of the Treaty establishing the 
European Community; this 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 
Chapter I : General Provisions 
Article J 
Aim 
The aim of this Directive is to ensure that 
measures taken by the Member States in 
the application of the principle of equal 
treatment in order to enable all persons, 
who consider themselves wronged by 
failure to apply to them the principle of 
equal treatment, to pursue their claims by 
judicial process after the possible recourse 
to other competent authorities, are made 
more effective 
Article 2 
Definitions 
For the purposes of this Directive, the 
principle of equal treatment shall mean the 
absence of any discrimination based on 
sex, either directly or indirectly, 
particularly by reference to marital or 
family status. 
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, by reference in 
particular to marital or family status, 
unless the aim pursued by the application 
of the provision, criterion or practice is 
objectively justified and the means of 
achieving it are appropriate and necessary. 
Article 3 
Scope 
1. This Directive shall apply to : 
(a) the situations envisaged by Article 
119 of the Treaty and Directives 
75/117/EEC, 76/207/EEC, 
79/7/EEC, 86/378/EEC, 86/613/EEC 
and 92/85/EEC, 
(b) the situations envisaged by any 
Community measure adopted in the 
future relating to the principle of 
equal treatment which does not 
expressly exclude its application; 
ure (c) any civil or administrative proced 
concerning the public or private 
sectors which provides for means of 
redress under national law in 
pursuance of the measures referred to 
in points (a) and (b). 
2. This Directive shall not apply to 
criminal procedures, unless otherwise Article 2 
Definitions 
For the purposes of this Directive, the 
principle of equal treatment shall mean the 
absence of any discrimination based on 
sex, either directly or indirectly, inter alia 
by reference to marital or family status. 
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, by reference 
inter alia to marital or family status, 
unless the aim pursued corresponds to a 
real need of the undertaking or meets a 
necessary aim of the social policy of a 
Member State, in itself is completely 
unrelated to sex and as such is objectively 
justified and unless the means of achieving 
this aim are appropriate and necessary. 
Article 3 
Scope 
1. This Directive shall apply to : 
(a) the situations envisaged by Article 
119 of the Treaty and Directives 
75/117/EEC, 76/207/EEC, 
79/7/EEC, 86/378/EEC, 
86/613/EEC, 92/85/EEC and 
96/34/EC; 
provided for by the Member States. 
Chapter II : Specific provisions 
Article 4 
Burden of proof Chapter II : Specific provisions 
Article 4 
Burden of proof 
I. Member States shall take such 1. Member States shall take such 
measures as are necessary in accordance measures as are necessary in accordance 
with their national judicial systems : with their national judicial systems : 
(a) to ensure that where persons who (a) 
consider themselves wronged by 
failure to apply to them the principle 
of equal treatment establish, before a 
court or other competent authority, 
facts from which discrimination may 
be presumed to exist, it shall be for 
the respondent to prove that there has 
been no contravention of the principle 
of equal treatment. The plaintiff shall 
benefit from any doubt that might 
remain; 
(b) to ensure that it is for the defendant, 
when it applies a system or a decision 
lacking transparency, to prove that 
the apparent discrimination is due to 
objective factors unrelated to any 
discrimination based on sex; 
(c) to ensure that the plaintiff does not (c) deleted 
have to prove the existence of any 
fault on the part of the defendant to 
establish that the ban on 
discrimination based on sex has been 
infringed. 
2. This Directive does not prevent 
Member States from introducing 
evidential rules which are more favourable 
to the plaintiff. 
Article 5 
Procedures to ensure that where persons who 
consider themselves wronged by 
failure to apply to them the principle 
of equal treatment as defined in 
Article 2 establish, before a court or 
other competent authority, a fact or 
facts from which discrimination may 
be presumed to exist, it shall be for 
the respondent to prove that there has 
been no contravention of the principle 
of equal treatment. The plaintiff shall 
benefit from any doubt that might 
remain; 
Member States shall introduce into their 
national legal systems such measures as 
are necessary to ensure that: 
(a) the courts and other competent 
authorities may give such directions 
as are necessary for an effective 
investigation of any complaint 
relating to discrimination; 
(b) the parties concerned have all the 
relevant information in the possession 
of the other party or which may 
reasonably be assumed to be in its 
possession and which is necessary for 
them to exercise their rights. Parties 
are required to provide only pieces of 
information whose disclosure would 
not substantially damage their interess 
in connection with matters other than 
the litigation concerned. 
Chapter III : Final provisions 
Article 6 
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 relevant 
persons by all appropriate means, for 
exaple at their place of employment. 
Article 7 
Non-regression 
Implementation of the provisions of this 
Directive shall under no circumstances be 
sufficient grounds for justifying a 
reduction in the general level of 
protection of workers in the area to which 
it applies, without prejudice to the right of 
the Member States tô respond to changes 
in the situation by introducing laws, 
regulations and contractual arrangements 
which differ from those existing when this 
Directive was notified, as long as the 
minimum requirements in the Directive 
are complied with. 
Article 8 
Implementation Article 7 
Non-regression 
Implementation of the provisions of this 
Directive shall under no circumstances be 
sufficient grounds for justifying an 
absence of positive action measures or a 
reduction in the general level of 
protection of workers in the area to which 
it applies, without prejudice to the right of 
the Member States to respond to changes 
in the situation by introducing laws, 
regulations and contractual arrangements 
which differ from those existing when this 
Directive was notified, as long as the 
minimum requirements in the Directive 
are complied with. 
Article 8 
Implementation 
Member States shall bring into force the Member States shall bring into force the 
laws, regulations and administrative 
provisions necessary to comply with this 
Directive by 1 January 2001. They shall 
immediately inform the Commission 
thereof. laws, regulations and administrative 
provisions necessary to comply with this 
Directive by 1 January 2000. They shall 
immediately inform the Commission 
thereof. 
When Member States adopt these 
provisions, these shall contain a reference 
to this Directive or shall be accompanied 
by such reference at the time of their 
official publication. The procedure for 
such reference shall be adopted by 
Member States. When Member States adopt these 
provisions, these shall contain a reference 
to this Directive or shall be accompanied 
by such reference at the time of their 
official publication. The procedure for 
such reference shall be adopted by 
Member States. 
Article 9 
Addressees 
This Directive is addressed to the Member 
States. Not more than two years after the date of 
implementation of this Directive, and 
every three years thereafter, Member 
States shall transmit information to the 
Commission with respect to progress 
made in the application of this Directive 
and trends in the use of provisions 
contained therein, to enable the 
Commission to draw up a report for the 
Council and European Parliament every 
three years. 
10 

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COM(97) 202 final 
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