COMMISSION OF THE EUROPEAN COMMUNITIES 
Brussels, 11.09.1995 
COM(95) 418fmal 
REPORT FROM THE COMMISSION 
on the implementation of Directive 79/7/EEC 
of 19 December 1978 in Spain and Portugal 
(as at December 1994) 

INTRODUCTION 
Directive 79/7/EEC provides for the progressive implementation of the principle 
of equal treatment for men and women in the field of social security and social 
assistance; its purpose is to eliminate any direct or indirect discrimination on 
grounds of sex in the statutory schemes providing protection against contingencies 
such as sickness, invalidity, old age, accidents at work, occupational diseases and 
unemployment, and in social assistance measures intended to supplement or 
replace the statutory schemes. 
This Directive is without prejudice to the provisions relating to the protection of 
women on the grounds of maternity and excludes from its scope a number of 
benefits granted under conditions which are at present discriminatory in several 
Member States. 
Under Article 8 of the Directive, Member States must bring into force the laws, 
regulations and administrative provisions necessary to comply with the Directive 
within six years. 
The Commission prepared an interim report (COM(83)793 of 6.1.1984) in order 
to enable Member States to meet their obligations. 
Article 9 of the Directive stipulates that, within seven years of notification of the 
Directive, Member States must forward all necessary information to the 
Commission to enable it to draw up a report on the application of the Directive 
for submission to the Council and to propose such further measures as may be 
required for the implementation of the principle of equal treatment. 
A questionnaire was sent to governments, who were asked to forward it to 
employers' and trade union organisations and to the committees set up in most of 
the Member States to look at problems of female employment. 
As regards the areas referred to in the Directive, the replies were to cover the 
public and semi-public sectors, workers whose employment is interrupted by 
sickness, an accident or involuntary unemployment, and persons seeking work, as 
well as retired and disabled workers. 
The Commission prepared a second report based on the replies received from 
governments, supplemented by information from organisations or committees 
concerned with equal treatment issues; this report describes the situation in the 10 
Member States as at 22 December 1988. 
Given that Spain and Portugal joined the European Community only on 1 January 
1986, the two Commission reports were unable to examine the situation in these 
two countries as regards the implementation of the principle of equal treatment for 
men and women. 
However, as both countries were required to implement Community legislation 
from the time of their accession, the Commission sent a detailed questionnaire to 
the Spanish and Portuguese governments, to employers and trade union 
organisations, and to committees on female employment set up at national level. 
On the basis of the replies received, supplemented in some cases by other 
information obtained by the Commission, this report describes the situation as at 
December 1994 concerning the implementation of the Directive in the Spanish and 
Portuguese legal systems. 
SECTION I 
TRANSPOSITION OF THE DIRECTIVE INTO NATIONAL LAW 
Under Article 8 of the Directive, governments are required to communicate to the 
Commission the text of laws, regulations and administrative provisions designed to 
implement the Directive which have been adopted or are already in force. 
Using the information provided by governments, it is interesting to ascertain whether the 
Directive was implemented by means of a general law or by amending certain parts of 
existing laws or regulations. 
In Spain, Article 14 of the 1978 Constitution provides that there shall be no 
discrimination on grounds of sex. As a result, many steps have been taken to bring about 
equal treatment for men and women in various areas including those excluded from the 
scope of the Directive; according to the government report, no laws or regulations 
discriminate against either of the sexes. 
In Portugal, Article 13 of the Constitution of 2 April 1976 lays down the principle of 
equality before the law of all citizens and states that no one may gain an advantage or 
be placed at a disadvantage on grounds of sex. 
Thus, according to the government report, Portuguese legislation on social security is in 
line with Directive 79/7/EEC. 
SECTION II 
EXAMINATION OF THE SITUATION IN THE MEMBER STATES CONCERNED 
This report will examine the steps taken in Spain and Portugal to eliminate direct and 
indirect discrimination in the areas of social security and social assistance and any 
remnants of direct and indirect discrimination, as well as the steps taken to guarantee 
rights of remedy and the question of exclusions from the scope of the Directive. 
It should be pointed out that, for the Commission, there is a presumption of indirect 
discrimination if an ostensibly neutral measure in practice mainly affects workers of one 
sex, in which case it is not necessary to prove an intent to discriminate1. It is up to the 
author of the discriminatory measure (the State) to prove that the measure is objectively 
justified and necessary in order to achieve an objective of its social policy. 
I. SPAIN 
Spain has taken many steps to bring about equal treatment for men and women in various 
areas, including those excluded from the scope of the Directive. 
1. DIRECT DISCRIMINATION 
1.1. Social security 
According to the Spanish government's report, there is no direct 
discrimination as regards the scope of the provisions, the qualifying 
conditions, the obligation to contribute or the way in which benefits are 
calculated. 
1.2, Scope 
Men and women are covered by the statutory social security schemes 
regardless of their marital or family status provided they meet the 
qualifying conditions. 
As regards self-employed workers, it should be pointed out that a person 
who is actively employed in the undertaking of his or her spouse and 
meets the necessary conditions is covered by special schemes for self-
employed workers. In such cases, the person concerned will be entitled 
to the same social protection as his or her spouse. 
Judgments of the Court of Justice of the European Communities of 13.5.86 (Case 170/84 Bilka-
Kaufhaus), of 11.6.67 (Case 30/85 Teuling), of 13.07.89 (Case 171/88 Rinner-Kulm) and of 8.05.91 
(Case 229/89 Commission vs Belgium). ( 
The special scheme for domestic workers has rules under which men and 
women are treated differently. Thus, persons who are related (spouse, 
relatives in the ascending and descending line, and other relatives) to the 
actual self-employed person (head of the undertaking, shopkeeper, etc.) 
may be excluded from the scheme. Decree No 2346 of 25 September 1969 
states that the degree of kinship, which determines whether an individual 
is covered by this scheme, does not constitute grounds for excluding 
persons of the female sex who belong to the households of unmarried 
priests and share accommodation with them. 
Husbands or wives who regularly work with their spouses in the latter's 
businesses and who meet the necessary requirements are covered by the 
special scheme for seafarers as self-employed workers. 
The scheme for agricultural workers covers, as a self-employed worker, 
the spouse of the owner of an agricultural holding on condition that the 
income thereby obtained contributes to the maintenance of the household 
and that the spouse lives with, or is financially dependent on, the owner 
of the holding. However, if the spouse can prove that he or she is working 
on another person's account then he or she may be covered by this scheme 
as an employee. In its present form this scheme may lead to indirect 
discrimination of the kind prohibited by Directive 79/7/EEC. 
In addition, the employment of dependent workers does not constitute an 
obstacle to inclusion in this scheme as a self-employed person provided 
that none of the dependent workers are employed on a permanent basis or 
that the number of days of work for which employees are paid does not, 
over one year, exceed the number for which a permanent worker would be 
paid. This limit does not apply if the owner of the holding is a man who 
is incapable of work or a woman who has been widowed or is incapable 
of work. 
1.3. Qualifying conditions 
All Spaniards are covered by the social security system irrespective of 
their sex, marital status or occupation on condition that they reside, and 
normally carry out their work, in Spain. Men and women are covered by 
statutory schemes under the same conditions, without discrimination on 
grounds of sex. The only exceptions are those referred to in 1.2. 
As regards the acquisition of an entitlement for a spouse who remains at 
home, Spanish legislation does not allow the latter to be covered by the 
social security system. 
As regards the entitlement to child benefits, a decree of 2 October 1985 
recognises the right of fathers or mothers who meet the necessary 
5 
conditions to receive child benefits on a regular basis where the family is 
living together. 
1.4. Obligation to contribute and calculation of contributions 
Spanish legislation makes no distinction between men and women as 
regards the obligation to pay contributions. 
Similarly, the level of contributions and the way in which they are 
calculated are not based on any form of sex discrimination. 
1.5. Calculation of benefits 
a) Individual benefits 
The government report does not mention any discrimination on grounds 
of sex affecting the way in which benefits are calculated, the periods of 
entitlement, the minimum amounts involved and the periods treated as 
periods of insurance. 
b) Family-related benefits 
Under Spanish law, benefits are calculated on the basis of the contributions 
paid by the person who holds or creates an entitlement. 
A pension supplement for a dependent spouse is paid without 
discrimination on grounds of sex and without a specific calculation being 
made if the spouse is living with the person receiving a pension, is 
financially dependent on that person and receives no income, pension or 
regular benefits. However, the spouse is regarded as dependent only if the 
monthly income of the household from all sources is less than the national 
minimum wage. 
The number of dependent children affects the way in which unemployment 
benefit is calculated in that it determines what percentage is to be applied 
when calculating the maximum amount to be paid. If both spouses are 
unemployed, they may each be entitled to an additional payment 
irrespective of marital status. 
1.6. Social assistance 
a) Scope 
According to the government report, there is no discrimination, on grounds 
of sex in social assistance schemes. 
b) Calculation of benefits 
Social assistance benefits are paid at a flat rate which varies according to 
the type of benefit concerned. 
Unemployed persons who are responsible for looking after a family and 
have used up their entitlement to unemployment benefit may receive 
unemployment assistance2 subject to conditions, and for an amount, which 
are identical for men and women. 
1.7. Matters excluded under the terms of Article 3(2) 
In Spain, there is no difference in treatment as regards the granting of 
survivors' pensions. Both widows and widowers are entitled to survivors' 
benefits on condition that they have lived together on a regular basis. To 
this end, in the event of divorce or separation, the pension is shared 
between one or more surviving spouses or partners legally recognised as 
beneficiaries in proportion to the period of cohabitation with the deceased 
person. 
Family benefits for dependent children are granted without discrimination 
to the father or mother (see 1.3 above). 
2. INDIRECT DISCRIMINATION 
2.1. General remarks 
Spanish legislation contains no definition of the concept of indirect 
discrimination. Case law and the legal literature, however, give an 
interpretation of this concept which is in line with that put forward by the 
Commission3. 
This unemployment assistance is a non-contributory benefit. 
Interim report on the implementation of Directive 79/7/EEC, COM(83)793. 
7 
2.2. Application of social security and social assistance benefits 
a) Scope 
According to the government report, no one is excluded from statutory 
schemes on grounds of marital or family status. 
b) Increments for dependent spouses 
Increments for dependent spouses are paid irrespective of whether the 
latter are men or women. 
c) Head of household concept 
In Spanish legislation, this concept applies both to women and men. 
However, the social reality is different: as women are still under-
represented in the workforce, more often than not it is men who are 
recognised as beneficiaries. According to the government report, this 
situation cannot be regarded as a discriminatory rule. However, where 
legislation provides for equal treatment for both spouses, the "head of 
household" concept itself is problematical. 
d) Period during which entitlement to medical care is retained after 
employment is interrupted owing to illness 
As regards the length of the period during which entitlement to medical 
care continues in the event of the insured person's employment being 
interrupted as a result of illness, this varies from one case to another but 
is always longer for the insured person than for other entitled persons. This 
measure affects the spouse, who in most cases is the wife. 
e) Waiting period 
Under the special scheme for domestic workers, cash benefits relating to 
incapacity for work are paid from the 29th day following the date on 
which the sickness began (under the general scheme, they are paid from 
the fourth day onwards). The government report points out that, although 
contributions to the two schemes are not the same, the difference is not so 
great as to justify the 29-day waiting period. 
2.3. Part-time work 
a) Percentage of men and women in part-time work 
According to a government report covering 1986, 10.59% of the working 
population were then in part-time work. Within this figure, 6.02% were 
women. In the same year, 58.9% of part-time employment contracts 
involved female workers. 
b) Persons covered and social security benefits 
Part-time workers are covered by statutory social security schemes and 
receive the same benefits as full-time workers (e.g. for retirement, 
invalidity, unemployment, etc.). 
Strictly speaking, a part-time employment contract is a contract requiring 
a person to work a given number of hours per day or per week or a given 
number of days per week or per month, this number being no more than 
two-thirds of the number normally worked. 
c) Minimum qualifying periods and the criteria for calculating 
benefits 
Here, certain special features should be mentioned. The minimum 
qualifying periods for benefits are calculated by counting the number of 
hours actually worked. The (theoretical) number of days worked is then 
obtained by dividing the number of hours worked by the number of hours 
normally worked in that particular branch each day. 
There are differences in treatment between the Workers' Statute 
(Articles 12 and 36) and the General Social Security Act (Article 74). 
Article 12 of the Workers' Statute provides that the pay to which part-time 
workers are entitled should be proportional to the number of hours and 
days worked and lays down a minimum and maximum working time (one-
third of a day and two-thirds of a day respectively) for part-time workers. 
On the other hand, Article 74 of the General Social Security Act stipulates 
that the minimum amount to be used for calculating contributions shall be 
equal to the national minimum wage applicable at any given moment, 
irrespective of the number of hours worked. According to the Spanish 
legal literature, Article 12 of the Workers' Statute is in explicit derogation 
of Article 74 of the General Social Security Act. On the basis of the 
government report, this would appear to indicate some indirect 
discrimination against women. 
As regards benefits relating to a temporary incapacity for work on grounds 
of maternity, the minimum qualifying period for this benefit must fall 
within the 18 months preceding the commencement of the compulsory or 
voluntary cessation of work. The basis for calculating the benefit paid to 
those temporarily incapable of work corresponds to the basis for assessing 
average monthly contributions obtained by dividing the total annual 
contribution by 12. 
9 
d) Period of entitlement 
Benefits for part-time workers are paid for the same length of time as 
those for full-time workers. 
3. RIGHT TO APPLY TO THE COURTS 
a) According to the government report, the right of remedy is guaranteed by 
Article 53 of the Constitution. Any citizen may bring an action before an 
ordinary court and, where necessary, apply to the Constitutional Court for 
protection of his or her constitutional rights. 
b) The right of remedy is an individual right. However, if actions of an 
identical nature are brought before a labour court, all the interested parties 
may appear jointly. 
c) Trade unions and employers' organisations cannot bring an action on 
behalf of an injured party. 
In addition, challenges against laws and statutes on grounds of 
unconstitutionality may be made by the Prime Minister, 50 deputies, 50 
senators, the executive organs of the Autonomous Communities and 
regional assemblies, while requests for preliminary rulings can be 
submitted by judicial bodies to the Constitutional Court. 
4. EXCLUSION FROM THE SCOPE OF THE DIRECTIVE UNDER THE TERMS OF ARTICLE 7(1) 
4.1. Matters excluded 
According to the government report, the matters that, under Article 7, may 
be excluded from the scope of the Directive do not give rise to any 
unequal treatment for men and women. 
4.2. Retirement age 
There is an identical retirement age for men and women. 
4.3. Benefits for persons who have brought up children 
Under Spanish law, persons in old-age pension schemes who have brought 
up children receive no extra benefits. 
10 
4.4. Derived entitlements of a wife 
The entitlement to old-age and invalidity benefits is a personal entitlement 
of the insured person and gives rise to no derived rights. 
4.5. Increments for dependent spouses (old-age, invalidity, accidents at 
work and occupational disease benefits) 
Increased pensions that take account of dependent spouses are granted 
without discrimination between men and women. 
II. PORTUGAL 
The Portuguese government's report considers that Directive 79/7/EEC can be 
implemented by means of the existing provisions in Portuguese social security legislation. 
Article 13 of the Portuguese Constitution guarantees the equality of all citizens before the 
law and stipulates that no one shall enjoy advantages or suffer detriment on grounds of 
sex. The Constitution's provisions are directly applicable and legally binding on the 
legislative and executive branches of government and on the judiciary. 
DIRECT DISCRIMINATION 
1.1 Social security 
According to the government report, there is no direct discrimination 
concerning the scope of schemes, qualifying conditions, the obligation to 
contribute and the calculation of benefits. 
1.2 Scope 
Employees and self-employed persons as well as civil servants and public 
employees are subject to no direct discrimination based on sex. 
It should be noted that since 1.01.94 all spouses of self-employed persons 
who work with the latter on a permanent basis have been covered by the 
social security provisions applicable to self-employed persons under 
Article 6(c) of Decree-Law No 328/93 of 25 September 1993. 
1.3 Qualifying conditions 
Under the statutory social security schemes, the same conditions of 
membership apply to men and women. 
Discriminatory measures favouring women exist for old-age pensions paid 
to employees and self-employed persons. 
The government report recognises that a system based on equal treatment 
is desirable, given the fact that the social situation has changed and more 
women are working. 
Under Portuguese legislation, spouses who remain at home do not receive 
any entitlement by virtue of the gainful activity of their spouses. 
The principle of equal treatment is applied to family benefits. The latter 
are paid to one of the spouses if it is proved that the other is not already 
receiving them. 
1.4 Obligation to contribute and calculation of contributions 
For employees, self-employed persons^ civil servants and public employees 
there is no direct discrimination on grounds of sex in either of these two 
areas. 
1.5 Calculation of benefits 
a) Individual benefits 
According to the government report, under Portuguese law employees and 
self-employed persons as well as civil servants and public employees are 
not subject to any discrimination on grounds of sex as regards the method 
of calculating benefits, the period of entitlement, the minimum amounts 
involved and the periods treated as insurance periods. 
b) Family-related benefits 
As regards employees and self-employed persons, the composition of their 
household is only taken into account in certain areas. 
The level of unemployment assistance depends on the number of persons 
who are dependent on the recipient (who may be a man or a woman). 
The level of family allowances is increased from the third child onwards, 
subject to a means test. 
12 
Survivors' pensions for persons in the descending line are increased for 
children who have lost both parents. 
Subject to a means test, persons receiving an invalidity or old-age pension 
used to receive an additional flat-rate amount if they had a dependent 
spouse. This additional payment was abolished under Decree-Law No 
328/93 of 25 September 1993. However, Article 100 of the same decree-
law states that additional amounts granted under earlier legislation will 
continue to be paid. The abolition of this additional payment is wholly 
consistent with the requirements of Directive 79/7/EEC. The important 
thing is to grant such additional payments without discrimination on 
grounds of sex, except in the case of increments for dependent spouses in 
respect of long-term benefits relating to old age, invalidity, accidents at 
work or occupational diseases. In such cases, pursuant to Article 7(l)(d) 
of Directive 79/7/EEC, Member States are authorised to grant such 
increments to either of the sexes, more particularly to the man for a 
dependent wife, so long as the proposal of 23 October 19874 for a 
Directive completing the implementation of the principle of equal 
treatment for men and women in statutory and occupational social security 
schemes is not adopted by the Council. 
As regards civil servants and public employees, the composition of the 
household has an effect on family benefits from the third child onwards. 
Here, however, no benefit is paid for dependent spouses. 
1.6 Social assistance 
There is no direct discrimination between men and women as regards the 
procedures for granting social assistance benefits or the way in which 
specialised services operate. 
In the civil service, benefits are not across-the-board or uniform but, in 
principle, are paid without any discrimination on grounds of sex. 
1.7 Exclusion from the scope of the Directive under the terms of 
Article 3(2) 
The payment of survivors' pensions, to persons living together, under the 
statutory social security scheme is governed by Decree-Law No 322/90 of 
18 October 1990 and Implementing Law No 1/94 of 18 January 1994. 
OJ No C 309, 19.11.1987, p. 13. 
13 
Consequently, the surviving partner of a couple who were not married (but 
lived together) or were legally separated at the time of his or her partner's 
death is eligible for a survivor's pension if he or she lived with the partner 
in question for at least two years in the same manner as legally married 
persons. 
Payment of the survivor's pension is conditional upon legal recognition of 
the person's entitlement to such a pension pursuant to the Code of Civil 
Procedure (generally in the case of persons living together without being 
married) or on the basis of their legal status as a beneficiary resulting 
automatically from their family status. 
It should be emphasised that the new legislation applies only to the 
surviving partner in the case of deaths occurring after the entry into force 
of Decree-Law No 322/90. 
As to the granting of family benefits for dependent persons, according to 
the government report, there is no discrimination (see final paragraph of 
1.3 above). 
INDIRECT DISCRIMINATION 
2.1 General remarks 
Portuguese legislation and case law contains no definition of the concept 
of indirect discrimination. 
The Portuguese government follows the interpretation given by the 
Commission5. 
2.2 Application of social security and social assistance benefits 
a) Scope 
According to the government report, no one is excluded from statutory 
schemes on grounds of marital or family status. 
However, according to a non-governmental report6, temporary employees 
(persons who occasionally work on a part-time basis or seasonal workers) 
Interim report on the application of Directive 79/7/EEC, COM(83) 793. 
Report by the Commission's nelvvork of independent experts on the application of the equal 
opportunities directives. 
14 
and voluntary workers (persons working on a voluntary basis, sometimes 
for a very small remuneration) are not covered by the social security 
system; since a high proportion of such workers are women, this situation 
in the atypical work sector deserves special attention. The government 
report considers that, as employed persons, temporary workers are covered 
by the general social security system. It finds that the situation of 
"voluntary workers" is different because they are (or may be) covered by 
a less favourable scheme (voluntary social insurance). 
b) Increments for dependent spouses 
Employees and self-employed persons receive an increased benefit for 
dependent spouses without discrimination on grounds of sex. 
However, in practice, it is usually the man who receives the extra 
payment. Under the Basic Social Security Act, the Portuguese government 
is planning to get rid of this additional payment and reassess the basis for 
calculating pensions. 
c) Head of household concept 
This concept has been abolished by the Portuguese Constitution. 
d) The level of survivors' pensions (widows' and widowers' pensions) 
to which the spouses of employees and self-employed persons may 
be entitled is lower than the amount paid to the deceased pension 
holders. However, the sum of the pensions paid to all the survivors 
may sometimes be equal to the amount of the pension received by 
the deceased pension holder. 
15 
2.3 Part-time work 
a) Percentage of men and women in part-time work based on figures 
in table below (in '000). 
Total Women Men 
Number of persons in active 4 190.1 1 722.2 2 467.8 
employment 
Number of persons whose 157.3 99.2 58.1 
weekly hours of work are 
less than normal 
of which: 
persons working less than 20 52.4 35.3 17.0 
hours per week 
persons working more than 104.9 63.9 41.1 
20 hours per week 
Source: INE employment survey 
Thus, 5.7% of women and 2.3% of men in the Portuguese workforce are 
in part-time employment. 
b) Social security coverage and benefits 
In the case of employees and self-employed persons, the statutory social 
security schemes provide the same coverage for part-time workers as for 
full-time workers. 
However, the benefits paid when a social risk occurs are calculated on the 
basis of the pay actually received. The level of these benefits is therefore 
lower than that provided for full-time workers. 
Part-time work is not very common in Portugal, where it involves only 
3.7% of the working population. However, 63% of those in part-time work 
are women and 37% men; the higher percentage for women applies 
whether the number of hours worked is above or below 20 hours per 
week. 
In the case of civil servants and public employees, the scheme covering 
half-time work maintains entitlement to social security benefits. The two 
schemes for part-time workers expressly define the benefits to which 
officials may be entitled. 
16 
c) Benefits for part-time workers are not based on proportionality 
although the level of some benefits may vary because they are 
calculated on the basis of the worker's average pay. 
A non-governmental report7 has found that a large number of women work 
part-time and receive less social protection against unemployment than 
men. Existing schemes providing such protection are subject to conditions 
which are particularly difficult for women to fulfil because, in many cases, 
they work at home or under a fixed-term contract, have little job security 
and do work which is less skilled and less well-paid. Apart from the 
specific question of discrimination, this is a more general sociological 
problem which deserves closer examination. 
d) Benefits are paid for the same period as that applicable to full-time 
workers. 
RIGHT TO APPLY TO THE COURTS 
a) According to the nature of the dispute, workers have a right to institute 
administrative proceedings and bring civil actions before administrative 
and civil courts. 
b) The right of remedy can only be exercised by the individual in whom 
rights are directly, personally and lawfully vested. 
c) No organisation may bring an action on behalf of an injured party8. 
EXCLUSION FROM THE SCOPE OF THE DIRECTIVE UNDER THE TERMS OF ARTICLE 7(1) 
4.1. Matters excluded 
The Portuguese government recently adopted new legal provisions aimed 
at progressively equalising the pensionable age for both sexes. 
Report by the Commission's network of independent experts on the application of the equal 
opportunities directives. 
The Code of Administrative Procedure which came into force in May 1992 permits organisations 
to act on behalf of injured parties. 
17 
4.2. Retirement age 
From 1999 onwards, the age at which retirement pensions are paid to 
employees and self-employed persons will be 65 for both sexes. 
4.3. Benefits for persons who have brought up children 
The right to a two-year special study leave may be exercised by the father 
or mother. This leave is treated as a period of work when calculating old-
age and invalidity benefits. 
Maternity or paternity leave is treated as an insurance period. 
4.4. Derived entitlements of wives 
Portuguese law makes no provision for the derived entitlements of wives 
to old-age and invalidity benefits. 
4.5. Increments for dependent spouses 
Portuguese law provided for such additional payments until 1993. Under 
Decree-Law No 328/93 of 25 September 1993, however, these increments 
were abolished except for persons who were already receiving them; the 
latter continue to enjoy this right (Article 100 of the decree-law). 
SECTION III 
CONCLUSIONS 
I. Transposition into national law 
Implementation of the Directive poses certain problems. This is due in part to the number 
of amendments which Member States must make to their own legislation to bring it into 
line with the Directive and, in part, to the various problems of interpretation that exist 
and the strict limits placed on the scope of the Directive. 
Neither Spain nor Portugal have had to make major changes to their respective legal 
systems since both their constitutions already contain the principle of equal treatment for 
men and women. 
Significant progress has already been made but further efforts are needed. 
IL Direct discrimination 
This report lists in some detail the changes which Member States have made to their legal 
provisions in order to eliminate direct discrimination. Subject to certain constraints, it 
attempts to assess to what extent these provisions are in line with the Directive. 
To a large extent, Spain had already carried out the measures introduced in the Directive. 
In 1978 it adopted a new Constitution which proclaimed the principle of equal treatment 
for men and women. Most of the Spanish social security legislation was already in line 
with the Constitution. However, on 1 January 1986, when Spain joined the European 
Community, certain inconsistencies remained. For example, the scale of benefits paid to 
persons who were permanently incapable of work* but were not disabled made a 
distinction between men and women. This example of direct discrimination was removed 
by an ordinance of 1 May 1988, which has retroactive effect to the date on which the 
Directive was implemented in Spain and Portugal (1 January 1986). Direct discrimination 
therefore seems to have been eliminated, except perhaps in the case of differences 
between men and women in the special Spanish scheme for domestic workers. 
Portugal, too, has recently adopted a new Constitution which recognises the quality of all 
before the law and, notably, in social security matters. However, Portuguese legislation 
in 1986 still provided for direct discrimination between men and women, mainly to the 
advantage of women. For example, the conditions under which survivors' pensions were 
paid to the surviving spouse of a person in receipt of an old-age or invalidity pension or 
of someone who had died following an accident at work or an occupational disease were 
more restrictive for men than for women. 
Since 1986 certain specific changes have been made to Portuguese legislation. Thus, 
Decree-Law No 322 of 18 October 1990 provided for equal treatment in respect of 
survivors' pensions. The discriminatory provisions concerning accidents at work and 
occupational diseases were declared to be unconstitutional and have therefore been 
removed. Decree-Law No 79-A of 13 March 1989 reorganised the scheme for the 
protection of unemployed persons by making it easier to obtain the various benefits, 
especially for part-time workers. 
Translator's note: 
Presumably this means "work in their habitual occupation" 
19 
The Commission would point out that, according to the decisions of the Court of Justice9, 
individuals may challenge the implementation of incompatible legislation under Article 4 
of the Directive, which is directly applicable. 
111. Indirect discrimination 
The Directive does not define indirect discrimination but stipulates, in Article 4, that there 
shall be no discrimination whatsoever on grounds of sex either directly or indirectly. 
The Commission has attempted to give this concept a more precise meaning. It has taken 
the view that a presumption of indirect discrimination exists when, in practice, an 
ostensibly neutral measure mainly affects workers of one sex. It is up to the author of the 
discriminatory measure to prove that there was no intention to discriminate and that the 
measure is objectively justified. 
An examination of the replies from the governments concerned indicates that Spain and 
Portugal have no definition of indirect discrimination in their national legal systems. 
The problem of indirect discrimination is often raised in connection with benefits relating 
to the concept of "head of household", increments for dependent spouses and, finally, 
part-time work. 
Although the "head of household" concept is applicable to both sexes in Spain, the 
government acknowledges that in practice it is usually the man who is recognised as the 
beneficiary but denies that this must lead to a presumption of indirect discrimination. As 
regards increments for dependent spouses, these are not only granted irrespective of the 
sex of the spouse but may be regarded in many cases as a means of guaranteeing a 
minimum income for the recipient household. 
As regards part-time work, where women are well represented, there are two cases in 
which indirect discrimination against women may arise. The first concerns the special 
scheme for domestic workers and the entitlement to a cash benefit for temporary work 
incapacity from the 29th day following the commencement of the sickness (under the 
general scheme, this benefit is paid from the fourth day onwards). (In Portugal, sickness 
benefit is paid after three days have gone by). The second example concerns the basis for 
calculating contributions in,respect of part-time workers. 
Judgment of 4.12.86 (Case 7/85 FNV), confirmed by the judgments of 24.03.87 (Case 286/85 
McDermott and Cotter) and of 24.06.87 (Case 385/85 Borne Clarke) and by all the relevant 
judgments in subsequent cases, in particular the judgments of 8.05.88 (Case 80/87 Dick), of 
11.06.87 (Case 30/85 Teuling), of 13.12.89 (Case 102/88 Ruzius-Wilbrink), of 21.11.90 (Case 
373/89 Caisse d'Assurances sociales pour Travailleurs Indépendants "Integrity" v Rouvroy), of 
13.03.91 (Case 377/89 McDermott and Colter 2), of 11.07.91 (Case 31/90 Johnson), of 20.07.91 
(Case 208/90 Emmotl), of 19.11.92 (Case C-226/91 Molenbroek), of 30.3.93 (Case C-328/91 
Thomas and Others), and of 1.07.93 (Case C-154/92 Van Cant). 
20 
Portuguese law has made considerable progress and the controversial notion of "head of 
household" has been done away with. As for part-time work, certain inequalities appear 
to exist. The social protection provided for part-time workers is the same as that for full-
time workers although certain gaps have been identified10, in particular as regards the 
conditions for granting unemployment assistance and the lower rate for certain benefits. 
These gaps suggest there is a lower level of social protection and a presumption of 
indirect discrimination as it is mainly women who are in part-time work, which is less 
well paid, less skilled and has less job security. 
A non-governmental report11 draws attention to an example of indirect discrimination in 
the civil service, where temporary employees are excluded from statutory social security 
schemes, pointing out that most of the workers involved are women. 
However, it should be pointed out that where there is a presumption of indirect 
discrimination in that one sex is more affected than the other by an ostensibly neutral 
measure, such differing treatment might be tolerated under Community law if the measure 
in question, by any objective criteria, is not intended to discriminate. 
IV. Right to apply to the courts 
In Spain and Portugal, the right of remedy, which already existed in the national legal 
systems before the Directive came into force, is an individual right exercised before 
ordinary courts by the injured party concerned, who cannot be represented by trade 
unions or employers' organisations. 
Exclusions 
The Directive allows Member States to exclude certain matters from its scope. 
Spain has not exercised this option as it considers that the matters which can be excluded 
do not, in Spanish law, involve discrimination on grounds of sex. 
Portugal has amended its legislation. Thus, Decree-Law No 329 of 25 September 1993 
stipulates that men and women are to receive old-age and retirement pensions at the same 
age, i.e. 65. As the previous legislation laid down a different pensionable age for each sex 
(62 for women, 65 for women), this equalisation will take place in stages. Women's 
pensionable age will be raised by six months each year, reaching equality by 1999. 
10 Report by the Commission's network of independent experts on the application of the equal 
opportunities directives. 
Report by the Commission's network of independent experts on the application of the equal 
opportunities directives. 
21 
Conclusions 
On the basis of the information collected, it would appear that Spain and Portugal have 
carried out a detailed study of the legislation that comes within the scope of Directive 
79/7/EEC. 
The transposition of the Directive into national law has enabled most instances of direct 
discrimination to be eliminated in both countries to a satisfactory extent. 
As regards indirect discrimination, various provisions in both countries have to be 
improved or removed. 
In this vein, the Commission will focus its attention on the elimination of indirect 
discrimination, initiating where appropriate infringement proceedings against Member 
States which unjustifiably maintain discrimination of this kind. In addition, it will support 
and encourage measures taken by and in the Member States to educate, inform and advise 
the population concerned. 
Finally, the Commission wishes to point out that Directive 79/7/EEC is only an initial 
stage in the implementation of the principle of equal treatment in matters of social 
security. A second stage was completed with the adoption of Directive 86/378/EEC, 
which extends this principle to occupational schemes. A further step was taken with the 
adoption of Directive 86/613/EEC, which concerns the implementation of the principle 
of equal treatment for men and women for certain categories of self-employed workers. 
Finally, in the last stage, a proposal for a directive (COM (87) 494 final) of 23 October 
1987, which is still being discussed, complements the two earlier directives with a view 
to remedying shortcomings and completing the programme for equal treatment of men 
and women in the social security field. This proposal is still under consideration by the 
Council despite the favourable opinions of the Parliament and the Economic and Social 
Committee, since various Member States have problems in adopting it given that it deals 
with such complex matters as retirement age and survivors' benefits. 
Nonetheless, in view of changes in family and social structures and in case law 
concerning occupational social security schemes12, it is high time that shortcomings in 
In its judgment of 17 May 1990 in Case 262/88 Barber and in subsequent interpreting judgments, 
the Court confirmed that benefits granted under occupational social security schemes fall within 
the concept of pay for the purposes of Article 119 of the Treaty. As a result derogations from 
Directive 86/378 concerning the principle of equal treatment are rendered invalid for employed 
persons. Tiiat is why the 1987 proposal [Proposal for a Council Directive completing the 
implementation of the principle of equal treatment for men and women in statutory and 
occupational social security schemes- COM(87) 494 final. 23.10.1987; OJ No C 309, 19.11.1987. 
p. 10] should be targeted at shortcomings in statutory schemes and. in the case of occupational 
schemes, only at shortcomings in schemes for the self-employed. It should be noted that, on 16 
May 1995. the Commission presented a proposal for a Directive amending Directive 86/378 to 
bring it into line with Article 119 of the Treaty as interpreted by the Court of Justice in the above-
mentioned judgments |COM(95) 186]. 
77 
respect of equal treatment for social protection purposes were remedied, thus completing 
the process started in 1978. 
For this purpose^ reference must be made to the Community Charter of the Fundamental 
Social Rights of Workers (point 16) and the third medium-term equal opportunities 
programme (1991-1995), that provides for the development of equal opportunities in the 
social protection field; there is still a great deal for Member States to do in order to bring 
about full legal equality in this area. 
The Parliament resolution of 14 December 1991 and the own-initiative report (the 
Oomen-Ruijten report) reinforce this view. 
Finally, the Treaty on European Union contains various provisions relating to the social 
field and equality between men and women. The Treaty establishing the European 
Community now contains a protocol (No 14) on social policy whereby eleven Member 
States adopted an agreement on social policy which opens up new prospects. Article 2 
of this agreement provides that the Community shall support and complement the 
activities of the Member States in various areas, including equality between men and 
women with regard to labour market opportunities and treatment at work. 
The European Union must continue its work to implement the principle of equal treatment 
for men and women, in particular as regards social protection, and must ensure that a 
fundamental principle of Community law is transposed into positive law. 
23 

ISSN 0254-1475 
COM(95) 418 final 
DOCUMENT, 
01 05 06 
Catalogue number : CB-CO-95-460-EN-C 
ISBN 92-77-93116-7 
Office for Official Publications of the European Communities 
L-2985 Luxembourg 
2-1