EN Official Journal of the European Union C 157/83

Opinion of the European Economic and Social Committee on the ‘Proposal for a Directive of the European Parliament and of the Council on the implementation of the principle of equal opportunities and equal treatment of men and women in matters of employment and occupation’

(COM(2004) 279 final — 2004/0084 (COD))

(2005/C 157/14)

On 18 May 2004, the Council decided to consult the European Economic and Social Committee, under Article 262 of the Treaty establishing the European Community, on the abovementioned proposal.

The Section for Employment, Social Affairs and Citizenship, which was responsible for preparing the Committee's work on the subject, adopted its opinion on 25 November 2004 The rapporteur was Mrs Sharma.

At its 413th plenary session on 15/16 December 2004 (meeting of 15 December 2004), the European Economic and Social Committee adopted the following opinion by 147 votes in favour, one vote against and six abstentions.

1. Introduction

1.1 The proposal's principal objective is to enhance transparency and clarity of equal treatment legislation and to facilitate effective application by reinforcing the acquis and avoiding regression. A single piece of legislation is needed with a clear structure, easily accessible and legible to support the achievement of socio-economic Community policy goals for more and better jobs for women.

1.2 Regrouping the provisions of the Directives on access to employment, equal pay, occupational social security and the burden of proof opens the chance to present a single coherent text that is free of contradicting definitions. The proposal accounts for recent developments in European case law by updating existing secondary legislation in line with judgements of the European Court of Justice which have clarified and further developed the concept of equality. It also serves to guarantee a high level of legal certainty by putting together provisions of Directives linked by their subject — all this in the context of the new political environment which presents the Union as being open, understandable and relevant to daily life.

1.3 The Directive applies to the working population, including self-employed persons, persons whose activity is interrupted by illness, maternity, accident or involuntary unemployment and persons seeking employment, and to retired and disabled workers, and to those claiming under them, in accordance with national law and/or practice.

2. Background

2.1 The Treaty of Amsterdam reinforced Community competence concerning equality between men and women and introduced the objective to eliminate inequalities in all fields of civil life and to promote gender equality. Unequal treatment not only violates a fundamental principle of the European Union, but it is also a limiting factor for economic growth and prosperity of national economy.

2.2 Equal treatment is a prerequisite for the EU to succeed in reaching the objectives for growth and sustainable economic, social and environmental development. Europe will more than ever before have to rely on a much higher proportion of women in the working population which can only be achieved by creating a floor of equal rights granted to all.

2.3 Research has shown that discrimination based on gender as well as the lack of specific support for employees with family responsibilities is a significant barrier which inhibits the growth of female employment in the first place.

2.4 Evolution of the legislation on equal treatment between men and women

Equal treatment for men and women is fundamental to the social concept of the European Community. As early as 1976, the principle of equal pay for men and women as laid down in Article 119 EEC (Article 141 EC) was described as one of the fundamental principles of Community law by the European Court of Justice. (1)

— The first equal treatment Directive adopted in 1975 deals with equal pay. (2)

— In 1976, the Directive on equal treatment in employment followed. (3) This Directive was substantially amended in 2002 by Directive 2002/73 that defined ‘harassment’ and ‘sexual harassment’. (4)

— In 1978, a Directive relating to statutory security schemes was adopted. (5)

— In 1986, a Directive introducing the principle of equal treatment for men and women in occupational social schemes was adopted. (6) This Directive was later amended. (7)

— In 1986 a Directive on equal treatment of men and women engaged in an activity in a self-employed capacity including agriculture was introduced with provisions on protection of self-employed women during pregnancy and motherhood. (8)

— In 1992 a Directive on protection of pregnant workers was adopted as a health and safety measure, including a statutory right to maternity leave of at least 14 weeks, time off for ante-natal examinations and protection against dismissal. (9)

— In 1995 the framework agreement on parental leave was concluded between the European level cross industry organisations and this was subsequently adopted as a Directive; it points out that equal treatment also means applying measures to men and recognises the importance of fathers in child care. (10) This Directive was later amended and extended to cover the UK. (11)

— In 1997 the burden of proof Directive was adopted. (12) This Directive was also later extended to cover the UK. (13)

The European Court of Justice has always played an important role in contributing to diminish effectively discrimination of women in employment. The Court interprets Community Law and naturally develops the incomplete legal concepts of relatively young Community Law to a coherent system of law (14). In the field of equal opportunities, the court has predominantly used the construction of direct and indirect discrimination in pursuing the efficient application of equal treatment legislation (15) and has made clear that protection against sex discrimination relates also to men. (16)

3. Specific comments

3.1 The EESC congratulates the Commission on its work towards simplifying and making more accessible the bulk of the gender directives. Gender equality is a fundamental right in all aspects of social and economic life and therefore legislation must be clear and easy for everybody to read.

3.2 A 30-year process of gender legislation has created 12 directives and the Committee notes that the Commission is now amalgamating seven of these directives with the common theme of equal treatment into a single recast version. (17) The Commission has chosen to recast these seven directives since there are many common threads throughout the Directives causing repetition and overlapping, but also a certain lack of coherence in the definitions.

3.3 The recast process modernises, clarifies and simplifies the seven into one by reducing the overall length of the texts and incorporating one set of definitions, including definitions on direct and indirect discrimination and harassment. The Committee welcomes this move in the light of the enlargement and the Commission's commitment to better regulation.

3.4 The Committee notes that five gender directives have been omitted from the recasting exercise through lack of commonality. (18) These include the two parental rights' Directives, which were framed in conjunction with employer and employee organisations and are not considered to fall under equal treatment; the Directive on maternity and nursing mother rights, which fall under health and safety legislation; the Directive on equal treatment in matters of social security and the Directive on protection of women's rights in self-employment, including agriculture.

3.5 The Committee supports the Commission's view that inclusion of these directives would complicate and lengthen the recast Directive. However, the EESC wishes to highlight Directive 86/613/EEC (19) as being in need of an immediate review in the light of the numbers of the female self-employed and women employed in agriculture. It is the EESC view that this particular piece of legislation is weak in content, providing insufficient protection for women. Given its relevance to the Lisbon objectives, an urgent update is therefore necessary.

3.6 The Commission has made two additions to the Directives that directly reflects well established case law and therefore just clarifies legislation already in place. These additions concern equal pay (Article 4) and occupational pensions for civil servants (Article 6). (20) The EESC notes that the European Court of Justice is instrumental in strengthening European law. Inclusion of case law in the recast directive adds clarity and purpose.

3.7 The codification exercise is technical and the Commission has stated that the substance of the directives have not been added to, excepting Article 21 the provision on the bodies for the promotion of equal treatment in the ‘Horizontal Provisions’ of Title III. The inclusion of the ‘Horizontal Provisions’ across the whole directive now increases, albeit marginally, the powers of equality bodies by broadening the scope of application. This may open the door for further extension of powers at a later date. The EESC points out that whilst the substance has not changed, updating and modernising the Directives, together with the resulting case law may imply changes in the long term.

4. Conclusion

4.1 Gender equality has been supported by 30 years of legislation and whilst the EESC commends the Commission for its move to simplify and make the directive easier to read, true equality across Europe cannot be achieved without positive action on the part of all Member States in demanding equal treatment for men and women. The Committee believes that exchanging and promoting good practices and increasing social dialogue in this field are a concrete way of delivering progress and fully recognizes the fundamental role of the social partners, highlighting their activities within the ‘Work Programme of the European Social Partners 2003-2005’. The Commission must do more in promoting equal treatment, equal opportunities and the value of women to the European economy in order to achieve the Lisbon goals.

4.2 The EESC would request the Commission to consider encouraging Member States to produce a guideline booklet highlighting the main features of European gender directives as they have been transposed into national legislation, the obligations of employers and the rights of employees, to remove the ignorance surrounding equal treatment and enhance the benefits to the economy.

Brussels, 15 December 2004. The President of the European Economic and Social Committee Anne-Marie SIGMUND

(1) ECJ 8.4.1976 – C-43/75 Defrenne II, ECR 1976, p. 455.

(2) Council Directive 75/117/EEC of 10.2.1975 on the approximation of the laws of the Member States relating to the application of the principle of equal pay for men and women.

(3) Council Directive 76/207/EEC of 9.2.1976 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.

(4) Directive 2002/73/EC of the European Parliament and of the Council of 23.9.2002 amending Council Directive 76/207/EEC 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) Council Directive 79/7/EEC of 19.12.1978 on the progressive implementation of the principle of equal treatment for men and women in matters of social security.

(6) Council Directive 86/378/EEC of 24.7.1986 on the implementation of the principle of equal treatment for men and women in occupational social security schemes.

(7) Council Directive 96/97/EC of 20.12.1996 amending Directive 86/378/EEC of 24 July 1986 on the implementation of the principle of equal treatment for men and women in occupational social security schemes.

(8) Council Directive 86/613/EEC of 11.12.1986 on the application 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.

(9) Council Directive 92/85/EEC of 19.10.1992 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.

(10) Council Directive 96/34/EC of 3.6.1996 on the framework of parental leave concluded by UNICE, CEEP and the ETUC.

(11) Council Directive 97/75/EC of 15.12.1997 amending and extending, to the United Kingdom of Great Britain and Northern Ireland, Directive 96/34/EC on the framework agreement on parental leave concluded by UNICE, CEEP and the ETUC.

(12) Council Directive 97/80/EC of 15.12.1997 on the burden of proof in cases of discrimination based on sex.

(13) Council Directive 98/52/EC of 13.7.1998 on the extension of Directive 97/80/EC on the burden of proof in cases of discrimination based on sex to the United Kingdom of Great Britain and Northern Ireland.

(14) Streinz, Europarecht, 4th ed., Heidelberg 1999, para. 494.

(15) Since ECJ Case C-96/80 Jenkins, Case C-170/84 Bilka v Weber von Hartz, Case C-171/88 Rinner-Kühn and Case C-184/89 Nimz v Freie und Hansestadt Hamburg.

(16) ECJ Case C-450/93 Kalanke; ECJ Case C-409/95 Marschall.

(17) Council Directive 75/117/EEC, Council Directive 76/207/EEC, Council Directive 86/378/EEC, Council Directive 96/97/EC, Council Directive 97/80/EC, Council Directive 98/52/EC, Directive 2002/73/EC of the European Parliament and of the Council.

(18) Council Directive 79/7/EEC, Council Directive 86/613/EEC, Council Directive 92/85/EEC, Council Directive 96/34/EC, Council Directive 97/75/EC.

(19) Council Directive 86/613/EEC of 11.12.1986 on the application 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.

(20) Article 4 in the new Directive reflects that there, according to the Court, is ‘(nothing) in the wording of Article 141(1) EC (…) to suggest that the applicability of that provision is limited to situations in which men and women work for the same employer’ while Article 6 clarifies that it also applies to social security schemes concerning a particular category of public servants, if the benefits concerned are paid by reason of the employment relationship, are directly related to the period of service completed and the amount is calculated by reference to the last salary.