COMMISSION OF THE EUROPEAN COMMUNITIES 
C0M(94) 163 final 
Brussels, 15.09.1994 
REPORT FROM THE COMMISSION 
ON THE IMPLEMENTATION OF 
COUNCIL DIRECTIVE OF 11 DECEMBER 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. 
(86/613/EEC) 
C ON TENTS *— 
Introduction 
Part 1 : objectives and main provisions of Directive 86/613 
Part 2 : Review of the situation in the Member States as of 30/6/93 
1. Belgium 
2. Denmark 
3. Germany 
4. Greece 
5. Spain 
6. France 
7. Ireland 
8. Italy 
9. Luxembourg 
10. Netherlands 
11. Portugal 
12. United Kingdom 
Part 3 : Conclusions 
Annex : Directive 86/613/EEC 
3 
Introduction 
On 11 December 1986 the Council adopted a Directive 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. 
Article 12 of that Directive required Member States to bring into force the 
laws, regulations and administrative provisions necessary to comply therewith 
not later than 30 June 1989. However, for a Member State which, in order to 
comply with Article 5, had to amend its legislation on matrimonial rights and 
obligations, the deadline was extended until 30 June 1991. 
Article 13 requires Member States to forward to the Commission all the 
information necessary to enable it to draw up a report on the application of 
the Directive. To this end a questionnaire was sent to the Member States in 
February 1991. Replies to this questionnaire were received from the Member 
States between 1991 and 1993. It should be noted that there may have been 
recent developments within Member States since then which have not been taken 
into account. 
This report is based upon these replies, research by the Commission network 
on the implementation of the equal opportunities Directives and contributions 
from the members of the Advisory Committee on Equal Opportunities for Men and 
Women. 
7 
PART I : Main Objectives and Provisions of Directive 86/613/EEC 
Although the earlier Directives on equal treatment between men and 
women (76/207/EEC and 79/117/EEC) were fairly broad in scope, they did 
not take sufficient account of the specific and special situation of 
self-employed men and women and in particular the situation of self-
employed workers whose professional status is unclear (neither partners 
nor employees). The 1986 Directive sought to identify the specific 
contribution of the self-employed to the family income, to give 
assisting spouses a clearly defined professional status and, by 
extension, to establish their social security entitlements. 
The Directive covers : 
(a) Self-employed workers, i.e. all persons pursuing a gainful activity 
for their own account, under the conditions laid down by national 
law, including farmers and members of the liberal professions. 
(Article 2(a)). 
(b) Their spouses, not being employees or partners, where they 
habitually, under the conditions laid down by national law, 
participate in the activities of the self-employed worker and 
perform the same tasks or ancillary tasks. (Article 2(b)). 
The spouse of a self-employed worker who habitually participates in his 
or her economic activity will normally fall into one of the following 
three categories: 
a person engaged in the same activities as his/her spouse as a 
partner or shareholder in a company 
a person participating in the activities of his/her spouse and 
receiving payment in return (employee status). 
an employed person who participates habitually in the activity of 
his/her self-employed spouse without payment and without status. 
In addition, France has created a new category ('conjoint 
collaborateur') for spouses of self-employed workers in the commercial 
and craft sectors^ 
Although this term describes more accurately the contribution that 
the spouse actually makes to the economic activity business, we 
feel that for the sake of clarity the term should only be used in 
relation to the specific status provided for in French law. 
Spouses within the meaning of Article 2(b) of the Directive will be 
referred to as "assisting spouses" for the purposes of this report. 
The Directive employs the standard definition of the principle of equal 
treatment, used in the other Equality Directives, that there must be no 
discrimination on grounds of sex, either directly or indirectly, by 
reference in particular to marital or family status. (Article 3) 
Article 4 of the Directive requires the Member States to take the 
measures necessary to abolish any national provisions which are 
contrary to the principle of equal treatment as defined in Directive 
76/207/EEC. Particular reference is made to the establishment, 
equipment or extension of a business or the launching or extension of 
any other form of self-employed activity, including access to financial 
facilities. 
Article 5 obliges Member States to ensure that the conditions for 
formation of a company between spouses are no more restrictive than 
those applying to persons who are not married. 
Article 6 deals with social security cover for the assisting spouse. It 
provides that where a contributory social security scheme exists, 
Member States must ensure that assisting spouses may make voluntary 
contributions to a scheme where they are not already covered by the 
social security scheme of the self-employed spouse 
Article 7 places a general obligation on the Member states to examine 
how recognition of the work of assisting spouses may be encouraged and 
to consider any appropriate steps to do so. It should be pointed out, 
though, that this does not oblige the Member States to take any 
specific action, or indeed any action at all. 
Article 8 requires the Member States to consider the question of 
pregnancy and maternity assistance for female self-employed and the 
wives of the self-employed in the form of temporary replacements or 
publicly-funded cash benefits. As with Article 7, the obligation is to 
consider, but not necessarily to take any action in this regard. 
Article 9 obliges the Member States to ensure that the rights conferred 
under this Directive may be upheld in the courts, possibly after 
recourse to other competent authorities. 
Article 10 requires Member States to engage in a certain amount of 
publicity. They must bring to the attention of bodies representing the 
self-employed and vocational training centres measures adopted under 
the Directive as well as all relevant measures already in force. 
PART II : Review of the situation in the individual Member States 
Overview. 
In their replies to the Commission's questionnaire the Member States 
emphasized the issue of equality between men and women. Equality 
before the law in respect of the establishment, equipment or extension 
of a business or the launching or extension of any other form of self-
employed activity, including financial facilities, exists in all Member 
States (Article 4). However, little or nothing was said about the 
specific objective of the Directive, namely to rectify a situation 
which largely affects women, namely the lack of professional status for 
spouses working in family businesses, including agriculture. 
Some Member States stressed that the main feature of self-employed 
activity was its sheer diversity and that the individuals concerned 
should be left a large measure of freedom. 
Most Member States indicated that it had not been necessary for them to 
amend or adapt their national legislation in order to implement the 
Directive. 
In general, the formation of a company between spouses is possible. 
Nevertheless, there are certain restrictions regarding property rights 
arising out of a matrimonial relationship (Luxembourg, Portugal) and 
possession of diplomas (Germany and France). The formation of a 
company between spouses confers rights on the unpaid marriage partner. 
However, very few self-employed couples opt for this solution. (Article 
5) 
As regards social security protection (Article 6), most Member States 
grant only limited social security rights (sickness benefit, old age 
pension), and any such entitlements are based on derived rights or 
payment into private insurance schemes, which are always more costly 
for the person concerned. Denmark is the only country where the 
spouse of the self-employed worker is protected against all 
contingencies (including unemployment). 
Member States were asked to examine under what conditions recognition 
of the work done by the spouse might be encouraged and to take all 
appropriate steps. By and large the Member States felt that there was 
no need for new initiatives to encourage such recognition. However, 
certain countries such as Denmark and Belgium have taken steps to 
mitigate the adverse effects of tax legislation on the wage paid to the 
spouse by the self-employed worker. (Article 7). 
-} 
As regards the provision of assistance in cases of absence due to 
pregnancy or maternity (Article 8), some Member States have improved 
conditions for women during and after pregnancy, mainly through the 
granting of allowances. On the other hand, the only countries which 
allow genuine access to replacement services are France, Germany and 
the Netherlands. Sometimes, the profession organizes relief services 
to cover a number of contingencies, such as illness, motherhood, 
holidays, absence for training or trade union duties (mainly in 
agriculture). Motherhood and sickness have priority when it comes to 
the supply of replacement services. However, the situation of female 
self-employed workers, both during pregnancy and after giving birth, is 
still generally very difficult, particularly for those on low incomes 
or who live in rural areas where private services are underdeveloped. 
It would appear that recourse to the judicial process is available to 
persons covered by the Directive through the ordinary courts 
responsible for dealing with such cases (Article 9). 
As regards the duty of Member States to inform bodies representing the 
self-employed and vocational training centres of measures adopted under 
the Directive or indeed already in place (Article 10), it emerges that 
..nl> France and the United Kingdom nave introduced a Laigetteu 
information policy. Otherwise, Member States do not provide the 
persons concerned by the Directive with proper, targeted and systematic 
information. Many spouses of self-employed workers are unaware of 
national enabling measures or legislation dealing with the subject 
matter covered by the Directive. Certain countries such as Portugual 
and Denmark have done nothing to provide information (only publication 
in the official Gazette or equivalent national publication); others 
have informed groups representing self-employed workers. 
A summary of the situation in the individual Member States, based on 
information available as at mid-1993, follows. 
2 
1. BELGIUM 
ARTICLE 4 
This provision of the Directive is covered by the Law of 
IS December 1970 (as amended) and the various enabling decrees relating 
to the carrying out of professional activities in small and 
medium-sized businesses in the crafts and trade sectors. 
The provisions relating to access to the various types of self-employed 
activities contain nothing which discriminates against women. 
ARTICLE 5 
There is nothing in the consolidated company laws of 1935 (as amended) 
that makes it difficult for spouses who have pooled their property to 
form a company. Moreover, the Law of 1 April 1987 amending 
Article 1401 of the Civil Code made it easier for spouses married under 
the communal property arrangements, without any assets of their own, to 
form a company. 
What this measure did was dissociate the asset value of shares held in 
common from the rights of a person acting in the capacity of a partner 
in a company where all the shares are registered, and categorize these 
rights as personal entitlements. 
ARTICLE 6 
Under Article 7(1) of the Royal Decree No 38 of 27 July 1967 defining 
the social status of self-employed workers, the wife or husband of a 
self-employed worker was not entitled to social security benefits as a 
helper. The spouse was protected as regards health care (major risks) 
and survivor's pension benefits under the self-employed worker's social 
security scheme (derived rights). 
A Law of 14 December 1989 amended the abovementioned Article 7(1) and 
since 1 January 1990 the husband or wife of a self-employed worker has 
been able to join that worker's social security scheme voluntarily. 
However, this only applies to compulsory sickness insurance (major 
risks) and invalidity allowances. In addition to maternity allowance 
(see below), the spouse will be entitled to a disability allowance of 
BFR 481/day after a period of three months, rising to BFR 594/day after 
one year's invalidity. 
This allowance is the same as that payable to the seIf-employed worker 
in the event of disability or invalidity. To insure against minor 
health risks, the self-employed worker will have to pay a supplementary 
contribution to cover his/her spouse. 
3 
ARTICLE 7 
As from the 1989 tax year, an assisting spouse who does not have a 
separate professional income of more than Bfr 350 000 per year may 
enter on his/her tax return a salary corresponding to the normal value 
of his/her services as a helper. However, this remuneration may not 
exceed 30% of the net income of the self-employed worker unless proof 
of a special form of assistance can be supplied. 
ARTICLE 8 
The Law of 14 December 1989 and the Royal Decree of 24 January 1990 
referred to above make provision for a maternity grant of Bfr 30 000 
during the period of maternity leave (three weeks) both to wives of 
self-employed workers in their capacity as assistants and to 
self-employed female workers. Wives of self-employed workers may only 
claim the maternity grant: 
* if they have paid into the scheme for a qualifying period of 
12 months 
* if they have paid into the scheme for at least two years (or have 
undertaken to remain members for a period of at least two years). 
ARTICLE 9 
No particulars given. 
No additional ^information on the implementation of the provisions of 
this.Article was forthcoming. 
ARTICLE 10 
The • new laws and regulations were brought to the attention of the 
social insurance funds for self-employed workers in Note P 720b/90/7 of 
27 February 1990. These social insurance funds were set up at the 
instigation of interprofessional or professional organizations and 
their task is to inform their members and advise them of their 
obligations and rights (Article 20(1) of Royal Decree No 38 of 
27 July 1967). 
CONCLUSIONS 
Belgium has adopted a number of measures in order to comply with the 
Directive and, in particular, has adapted its tax legislation so as to 
encourage recognition of the work done by the assisting spouse. 
However, it should be pointed out that these changes will primarily 
benefit the better-off spouses, since the remuneration which they are 
allowed to claim will be expressed as a percentage (maximum 30%) of the 
net income declared by the self-employed worker. 
io 
If the business makes little or no profit the spouse will only receive 
a minimum share. 
The tax legislation also puts up other obstacles to full recognition of 
the spouse's status. Although a person can in theory employ his/her 
spouse, the tax system acts as a disincentive since Article 45(8) of 
the income tax code2 does not allow the spouse's salary to be claimed 
against tax as professional charges. Other family helpers are not 
affected by this restriction. 
With regard to Article 6, spouses are not be covered in every case by 
the social security arrangements of self-employed workers, since cover 
is limited to sickness and invalidity. However, they are covered, like 
any spouse living under the same roof, for old age via their spouse's 
entitlements (survivor's pension) and for minor health risks if the 
self-employed worker contributes to such a scheme. 
2 Professional charges include payments to members of the taxpayer's 
family other than his spouse working with him, providing such payments 
do not exceed a normal salary or wage 
DENMARK 
ARTICLE 4 
This Article has been implemented by paragraph 5 of Law No 686 of 
11 October 1990 on equality of treatment. Under this provision, anyone 
who controls access to a profession, the establishment or extension of 
a business or any other form of professional activity, including 
financial facilities, must abide by the principle of equal treatment. 
However, the Ligestillingsradet (the Danish equal opportunities board) 
has pointed out that, in certain cases, self-employed women are still 
encountering practical difficulties in getting a loan in order to start 
their activities. 
ARTICLE 5 
The formation of a company between spouses does not appear to cause any 
problems, although the Commission has not been given any details. 
ARTICLE 6 
Social security in Denmark is financed from tax revenue. Persons 
covered by social security arrangements only need to pay contributions 
if they wish to claim addition benefits. 
Assisting spouses are covered by the social security system, in the 
same way as the self-employed workers, against illness, invalidity, old 
age and maternity risks. They may voluntarily insure themselves 
against the risks of unemployment and industrial accident. 
Health: persons covered by the Directive are entitled to free medical 
services and to cash benefits from the third month of incapacity for 
work. If they have contributed to a voluntary insurance scheme, they 
will be covered from the first day of their illness. The benefit paid 
depends on the profit of the business as communicated by the tax 
authorities. No distinction is made between a self-employed person and 
his/her spouse as far as the payment of the daily allowance is 
concerned. 
ARTICLE 7 
The Law of 16 March 1989 introduced a new amendment into the tax 
legislation allowing a couple to choose the status of employee or 
co-worker for the assisting spouse. The purpose of this amendment is 
to give the co-worker greater independence and make it easier for 
him/her to obtain social benefits. 
^-e 
ARTICLE 8 
Self-employed women and wives assisting self-employed workers are 
entitled to four weeks' maternity leave prior to the birth and up to 
24 weeks after. While on maternity leave the woman receives a daily 
allowance from -the local authorities. The amount depends on her income 
and there is a ceiling of Dkr 2 506 per week. If the woman has 
subscribed to a voluntary insurance scheme she receives an additional 
minimum allowance of Dkr 1 671 per week, which is paid independently of 
income. 
There is no provision for services supplying temporary replacements. 
ARTICLE 9 
Equality of treatment cases are heard by the ordinary courts. 
According to the legal staff, no cases have been brought to court under 
this Directive. 
In Denmark the Ligestillingsradet plays a very important role in 
implementing the principle of equal treatment between men and women. 
The purpose of this body is to promote equal opportunities and it is 
empowered, on its own initiative, or at the request of a third party, 
to investigate situations which fall within the scope of the law. 
ARTICLE 10 
It would appear that no specific information on the Directive has been 
passed on to the vocational training bodies or groups representing 
self-employed workers. 
A3 
GERMANY 
General comment: The Federal Government maintains that the 
transposition of the Directive into national law requires no amendment 
to German laws or regulations. 
ARTICLE 4 
There are no differences on grounds of sex when it comes to the 
establishment, organization or expansion of a company, or the taking up 
or extension of any other form of self-employed activity. Members of 
the liberal professions (lawyers, solicitors, accountants, doctors, 
etc.) are governed by conditions restricting access based on legal 
provisions. These restrictions vary from one profession to another 
(nationality, quotas, consideration of need, qualifications obtained, 
etc.). The restrictions are the same for both men and women. 
The legal provisions applicable to the launching and extension of a 
business or any other form of self-employed activity are tfae sama for 
both sexes. Likewise, there is no distinction for the purposes of 
vocational guidance» training, farther training and retraining. 
ARTICLE 5 
The launching or extension of a business and the choice of legal form 
for a number of self-employed activities such as architects, engineers, 
lawyers, tax consultants,, are covered by professional legislation 
and/or company law. 
where there are laws requiring all partners to have specific 
qualifications, a spouse may only be a partner if he/she meets the 
qualifying requirements. Chartered accountants and tax consultants can 
form a partnership and a private limited liability company. 
Wives may, like any other individual, hold shares in such companies 
even if they are not engaged in the professional activity in question. 
In such a case, however, they have no influence on the professional 
decisions taken by these companies. 
In all other commercial businesses» spouses receive the same treatment 
as third parties if they form or join a company. 
*H 
ARTICLE 6 
The German social security system covers: 
- sickness 
retirement 
accidents. 
Sickness insurance 
This insurance covers the risks of sickness, maternity and health care. 
Self-employed workers are not normally required to pay into a sickness 
insurance scheme (the exceptions being those engaged in farming, 
horticulture, forestry, etc.; the same applies to self-employed 
artists and writers). 
when they have completed a mandatory period of insurance, self-employed 
workers may decide whether or not they wish to remain insured. 
Where an agricultural holding is jointly managed by the spouses, the 
spouse who is mainly responsible for running the business is considered 
to be the operator and is required to contribute to the social security 
scheme. The assisting spouse is insured as a member of the family and 
does not have to pay contributions. 
The spouse insured as a member of the family is eligible for the same 
health insurance benefits as the spouse who is compulsorily insured. 
In the case of sickness insurance for farmers, assistance can only be 
granted to the spouse who is insured as a member of the family if the 
rules of the sickness insurance scheme so provide. 
With the exception of sickness benefits, the benefits under the 
compulsory insurance arrangements are generally identical to those paid 
to voluntary members. 
Retirement insurance 
This scheme covers risks of invalidity, old age and death. 
Insurance of spouses referred to in Article 2(b) is covered by the 
general provisions applicable to retirement insurance. Any member 
employed by his spouse is therefore required to take out insurance. A 
person who is a co-worker in his/her spouse's business can apply for 
compulsory insurance provided that this is not already a legal 
requirement (as is the case for craft workers). 
Spouses both working in the same business are free to decide whether to 
pay contributions in order to be entitled to benefits for both spouses. 
Moreover, the scheme allows the surviving spouse to continue to acquire 
entitlements to a widow's pension by the payment of contributions even 
after the operator's death. These contributions by the surviving 
spouse give rise to personal entitlements even if the surviving spouse 
continues to carry on the activities of the deceased operator. 
The rules on compulsory retirement insurance are also applicable to 
farmers and their spouses. , 
Company provident schemes 
Members of liberal professions with their own governing body (e.g. 
lawyers, doctors, architects) are normally required to insure 
themselves against disability and old age with public insurance and 
provident schemes, whether they are employees or self-employed. 
Membership of a professional institute is the: determining criterion in 
this case. People who do not belong to a professional group do not 
have access to this branch of social security. However, the social 
security system is so structured as to enable an assisting spouse who 
is not a member of a professional institute to enjoy the same 
opportunities as the assisting spouses of other self-employed workers, 
which means entitlement to compulsory insurance under the state 
retirement insurance scheme through the conclusion of an employment 
contract with the other spouse or through voluntary contributions. 
Retirement insurance schemes for farmers 
The retirement pension for a married farmer is 50% more than for an 
unmarried person because he receives a supplementary amount for his 
spouse.3 The Law of 20 December 1985 requires pension funds, in 
respect of new cases, to pay one-third of the total sum direct to the 
assisting spouse. The only condition is that the spouse's main 
activity should have been helping in the work of the farm as an 
assisting spouse. 
Accident insurance 
This scheme covers industrial accident, invalidity and death. 
Membership of this insurance scheme is open to anyone, spouses of 
farmers, like the farmers themselves, are legally insured. 
ARTICLE 7 
According to the German Government, it is neither necessary nor 
possible to improve the position of the spouses. 
3 Article 4(1) of the Law on old-age pensions for farmers 
.16 
ARTICLE 8 
Women covered by a sickness insurance scheme are entitled to various 
cash benefits in the case of pregnancy or motherhood. This also 
applies to co-insured persons. Since 1 January 19 86 sickness insurance 
funds are authorized to grant assistance to a woman farmer for a period 
of eight weeks (12 weeks in the case of multiple pregnancy or premature 
delivery) from the time of confinement, if the running of the farm is 
threatened. 
This assistance can take the form of providing a replacement to run the 
farm in her absence or refunding the cost of hiring a replacement. 
Sickness fund rules may provide for the grant of a similar amount of 
assistance and a household allowance in the case of maternity to the 
wife of an insured farmer. 
ARTICLE 9: 
The German legal system guarantees full legal protection. Cases of 
discrimination can therefore be heard by the ordinary courts. 
ARTICLE 10: 
Information has been sent to a number of organizations dealing with 
self-employed women and wives of self-employed workers. 
Conclusions 
According to the replies to the questionnaire, German legislation does 
not appear to present any anomalies. It is possible for one of the 
spouses to employ the other spouse with the status of employee. A 
range of different possibilities for setting up a business is available 
to the spouses. 
Any restrictions which exist are based on criteria such as training and 
aptitude rather than gender. Even if a couple decides not to draw up a 
contract and if the spouse prefers to work in the business without a 
particular status, he/she can contribute voluntarily to the German 
social security system. 
This legislation does not apply to work done by the spouse or members 
of the close family living under the same roof unless the business or 
part of it is located in the family home. 
13 
4. 
General Coassent: The replies from Greece mainly concerned that part of 
the Directive dealing with social protection (Articles 6 and 8). 
ARTICLE 4 
Legislation on the launching or extension of a business does not 
discriminate on the grounds of gender.4 Law 1329/83 establishes 
equality between husband and wife in the area of family law (decisions 
on property, loans, etc.). 
ARTICLE 5 
Spouses may launch a business and they are not subject to any specific 
conditions. 
ARTICLE 6 
Greece classifies socio-economic activities in a rather unusual way. 
some classes of self-employed workers in towns are covered - like 
employees - by the general social security system (IKA). There is also 
a parallel agricultural scheme (OGA) which not only covers everyone 
working in the agricultural sector (employed or not) but also covers 
every self-employed worker in a commercial or business activity in a 
village of fewer than 2 000 inhabitants. More particularly, all self-
employed workers covered by the social security system fall into one of 
the following two categories: 
* those with a professional qualification (doctors, engineers, 
lawyers, etc.). 
The main insurance schemes are the lawyers' fund, the TSMEPE (fund for 
engineers and civil servants) and the TSAY (medical workers' retirement 
insurance fund). 
* other self-employed activities (industry, business) 
There are two main types of insurance plan: the TAE (businessmen and 
women's insurance fund) and the TEBE (Greek fund for professional and 
industrial workers). 
All risks, i.e. retirement, invalidity, industrial accident, sickness 
and death, are covered by the abovementioned insurance schemes. 
4 Law of 14 Arpil 1984 on equality in respect of employment 
legislation. 
•7> 
Assisting spouses are required to join the general social security 
scheme (IKA)5 if they are not compulsorily or voluntarily covered for 
such work in one of the other main social security bodies. 
Although the abovementioned persons are obliged to join the scheme, 
membership is not automatic. This means in order for membership of the 
scheme to take effect or cease a written notification is required from 
the insured member or the person for whom the work is carried out. 
self-employed workers are covered for all risks, retirement, sickness 
(benefits in cash and in kind), invalidity and death. The retirement 
insurance contribution is very low (Dr 15 000/month) . A complementary 
retirement insurance scheme for farmers was introduced in 1989.6 
The agricultural scheme (OGA) pays neither a daily allowance to farmers 
in the event of an accident or illness, nor unemployment benefits. 
ARTICLE 7 
No information was forthcoming on this Article. 
ARTICLE 8 
Self-employed women and the wives of self-employed workers are entitled 
to maternity leave and receive allowances (Dr 50 000 under the OGA 
scheme). There is no service providing temporary replacements. 
ARTICLES 9-10 
No information was forthcoming on these articles. 
5 Article 1(1) of Law No 1759/88. 
6 Women in Agriculture, Cahiers de femmes d'Europe, October 1988, 
Nos 27-28. The amount varies from Dr 3 680 to 10 400 per month. 
Spain AJ 
Preliminary remark: the Spanish Government admitted in its 
communication to the Commission that the law _of the Balearic Islands 
(matrimonial law) does not comply with the principle of equality of 
treatment as defined in the Directive. 
ARTICLE 4 
Article 14 of the Spanish Constitution states that "All Spaniards are 
equal before the law, without any discrimination for reasons of birth, 
race, sex, religion, opinion or any other personal or social condition 
or circumstance". -
Furthermore, Article 35(1) of the Constitution states that: "All 
Spaniards have the right to work, to the free selection of profession 
or office, [..-J while in no case can there be discrimination for 
reasons of sex". 
The formalities necessary for access to professions or the taking up of 
a self-employed activity do not discriminate on grounds of sex. 
In this connection the Spanish Government notes that, according to the 
statistics for 1989, the number of women receiving training in all the 
programmes within the FIP plan (Plan for Training and Integration into 
Working Life) was slightly higher than the number of men (50.5% as 
against 49.5%). However, given that women find access to the labour 
market more difficult. Royal Decree No 1618 of 14 December 1990 laying 
down the rules for the FIP provides for a programme aimed at women 
wishing to resume professional activities, to ensure that they can be 
trained for those activities where they are under-represented or to 
facilitate the professional re-intégrâtion of women who have family 
responsibilities and encounter specific, difficulties in finding a job. 
ARTICLE 5 
A number of changes have been made to Spanish commercial law in order 
to take account of Community company law Directives. 
A company under Spanish law is "a contract by which two or more persons 
agree to pool money, property or an industry with a view to sharing the 
eventual profits". 
There is nothing to stop two spouses forming a commercial company. The 
property thus put into the company can either be held in common or be 
the individual property of each spouse. 
Zo 
In the case of divorce, spouses within the meaning of Article 2(b) can 
obtain financial compensation on the grounds of professional activity 
in the company of the self-employed spouse. Article 97 of the Civil 
Code states that if separation or divorce leads to an economic 
imbalance for one spouse compared to the other, involving a 
deterioration in the situation which prevailed during the marriage, 
he/she is entitled to a pension fixed by a decision of the Court, 
taking account inter alia of (...) collaboration, through work, in the 
commercial, industrial or professional activities of the other spouse. 
ARTICLE 6 
Self-employed activities are not included in the scope of the general 
rules on social security. A self-employed person must join or register 
in one of the following special schemes: 
* the special scheme for self-employed workers includes workers in 
industry and services, the liberal professions and the like, and 
those engaged in agriculture, provided that their activities do not 
exceed a specified extent; 
* the special scheme for agricultural workers, includes everyone 
pursuing a self-employed activity in agriculture, forestry, or 
livestock rearing as his main source of income enabling him to meet 
his/her needs and those of the dependent members of his/her family; 
* the special scheme for seafarers includes all self-employed 
seafarers regardless of sex, provided that this self-employed 
activity constitutes their main source of income. 
The three abovementioned special social security schemes include within 
their scope the husband/wife of the self-employed worker provided 
he/she habitually participates personally and directly in carrying out 
the tasks involved in the activities in question. The other conditions 
laid down by the special schemes for seafarers and farmers are 
cohabitation and economic dependency of the spouse on the self-employed 
worker, in addition, the special scheme for farmers stipulates that the 
output from the agricultural activity must contribute appropriately to 
the livelihood of the farming family of which the worker is a member 
(Decree No 2530 of 20 August 1970). 
These same decrees make membership of the special schemes compulsory; 
the spouse of a self-employed worker who participates in the latter's 
activity and who lives under the same roof and is dependent on the 
self-employed worker is not considered as an employee and must 
therefore pay into the special scheme which applies to the self-
employed activity carried out.7 m such cases the assisting spouse 
will be entitled to the same social benefits as the self-employed 
worker. 
7 Law No 5 of 29 June 1990 on budgetary, financial and fiscal 
measures. 
*1 
The special schemes described above cover the following 
benefits/allowances. 
Table showing the main contributory schemes described in the 
Cosmiission's expert report on the situation of self-employed workers in 
Spain as at November 1991 
Cover Provided Industry and Agriculture 
Services 
Sickness allowance 1 2 
Convalescence grant 2 2 
Maternity allowance 1 2 
Industrial accident 2 2 
and sickness benefit 
Unemployment benefit No No 
1 = Compulsory membership 
2 = Optional membership 
ARTICLE 7 
The Spanish Government has forwarded its programme on the promotion of 
self-employed activity.8 The aim of this programme is to promote and 
give financial assistance to projects which enable people registered 
with employment agencies to set up as self-employed workers. The 
Spanish Government ensures that the principle of equality of treatment 
is fully respected in this programme. 
ARTICLE 8 
Self-employed women and the wives of self-employed workers referred to 
in Article 2(b) are entitled to health care benefits in the case of 
maternity.9 Law No 3 of 3 March 1989 extended the duration of 
maternity leave from 14 to 16 weeks. 
This programme is set out in Ministerial Decree of 21 February 19 86 
which proposes various job creation assistance programmes. 
These benefits include medical services (medical examinations, 
medical assistance during confinement, hospitalization in approved 
hospitals), pharmaceuticals (for all medicines either free of 
charge or subject to a financial contribution) and cash benefits 
(allowance equivalent to 75% of the monthly cobntribution of the 
worker; this allowance is higher in the case of a multiple birth). 
22J 
The granting of maternity benefits is subject to women being registered 
with the social security scheme, and contributions have to be paid for 
a minimum period of 180 days during the year prior to confinement. In 
addition, payment into the scheme must begin at least nine months 
before the presumed date of confinement. 
An assisting spouse who is neither paying into nor registered with a 
scheme is entitled to health care benefits alone. 
However, in the special scheme for farmers, the self-employed worker 
has to have paid additional voluntary contributions specifically to 
insure against temporary disability. This means that, unless the self-
employed agricultural worker pays into a plan insuring against 
temporary disability, his wife (Article 2(b)) will receive no health 
care benefits or any other benefits. 
Spanish legislation makes no provision for relief services for women 
during the period when they stop work for maternity, nor for social 
services to take account of the fact that the wife of a self-employed 
worker is incapable of working. 
Article 9 
Article 2 of the law on working procedures, approved by Royal 
Legislative Decree No 521 of 27 April 1990, states that 'The judicial 
bodies responsible for enforcing social legislation must be aware of 
the litigious issues which can arise ... in the area of social 
security" . 
Any person with a subjective right or a legitimate interest may bring 
an action before the courts (Article 17 of the abovementioned law). 
Moreover, a person claiming discrimination on grounds of sex may 
require the defendant to substantiate the objective grounds for the 
measure adopted and demonstrate its appropriateness in relation to the 
objectives. The judge may seek the opinion of the competent public 
bodies (Article 25.3) . 
In parallel with these means of redress under social legislation, 
violation of rights recognized by the Constitution trigger the relevant 
constitutional mechanisms for guaranteeing the rights of the 
individual. 
ARTICLE 10 
Vocational training: 
The information has been forwarded nationally by the General Council 
for Vocational Training set up by Law No 1 of 7 January 19 86. This 
advisory body assists the government in framing vocational training 
regulations. It comprises the most representative trade union and 
employers' organizations and representatives of the administration. 
£3 
At provincial level, information is forwarded by the provincial 
vocational training commissions and by the provincial vocational 
training monitoring committees set up respectively by the Order of 
21 June 1990 and by Royal Decree No 1618 of 14 December 1990. 
The National Institute for Employment also sends information to 
training centres. 
Conclusions: 
.1. Article 7 of the General Law on Social Security (Law No 2065/74 of 
30 May 1974) expressly states that the wife of an entrepreneur cannot 
be regarded as a worker unless she can prove the contrary (despite the 
fact that this status is accepted without proof in the case of other 
members of the family). The wife therefore cannot personally join a 
social security scheme and can only benefit in the form of derived 
rights, i.e. through her husband. 
It would appear that under employment law an entrepreneur can employ 
his wife as a salaried employee, whereas under social security law this 
status is not recognized. This is a contradiction which in fact 
prevents a wife from helping her husband as a salaried employee in his 
business. 
The equal opportunities plan for 1988-90 approved by the Government in 
1987 includes among its recommendations (1.11.1) "examination of the 
possibility of amending Article 7.2 of the general law on social 
security". 
2. The wife of a farm manager who is not paying into a scheme to 
insure against temporary disability cannot claim medical assistance in 
the case of maternity. 
6. France 
With regard to craft, industrial and commercial activities: zH 
Law No 82-596 of 10 July 1982 improved the status of the spouses of 
craftsmen and tradesmen participating in the activities of the business 
by allowing them to choose one of three options : 
* salaried status 
* partnership status 
* assisting spouse ('collaborateur') status10 
Despite these various options, and in particular the status of 
collaborateur, which combines recognition with a limited cost to the 
business, it is estimated that 80% of the spouses of people working in 
craft, industrial or commercial professions have not opted for a 
specific status. 
ARTICLE 4 
No information was forthcoming on this point. 
ARTICLE 5 
It is perfectly possible for spouses to form a company. The conditions 
under which such a company is formed are the same for both married and 
unmarried couples (for instance, possession of a relevant diploma). 
There is an exception to the possibility for spouses to form a company, 
for reasons given by the French Government. Article 1 of Law 
No 62-1971 of 8 August 1962 states that two spouses alone cannot form a 
jointly-managed agricultural association (GAEC) as partners; on the 
other hand, a married couple may form a GAEC if a third partner is 
involved. 
If the spouses are absolutely determined to form an agricultural 
company on their own, they are allowed to set up a limited liability 
agricultural holding (EARL) under Law No 85-697 of 11 July 1985. 
In order to give married couples a greater incentive to set up 
companies, Decree No 88-198 on start-up aid for young farmers now 
allows two young farmers' grants per household if the spouses are both 
managers within a company constituted under civil law, an agricultural 
company or an EARL. 
ARTICLE 6 
Spouses who have chosen the status of collaborateurs (craft, industrial 
or commercial professions) may voluntarily join an old-age pension 
insurance scheme for self-employed workers in order to acquire their 
own pension entitlements. They are also offered the opportunity 
(subject to certain conditions) to purchase the rights acquired during 
certain periods of activity prior to their joining the voluntary 
insurance scheme.*1 
10 See footnote (1) above 
11 Decree No 86-100 of 4 March 1986 
zs 
Since the adoption of Law No 89/1008 of 31 December 1989 (Article 17) a 
spouse assisting a partner in a single-member limited liability 
undertaking (EURL) now has social rights with regard to maternity and 
old-age pension. In fact, the maternity benefits are the same as those 
for an assisting spouse listed in the businesses and companies register 
or in the trades directory. 
As far as retirement pension is ; concerned assisting spouses may 
voluntarily pay into an old-age pension scheme of which the spouse, as 
sole partner, is a member. 
An implementing decree (No 91-897) of 5 September 1991 stipulates that 
assisting spouses must be able to join a voluntary old-age pension 
scheme, declare on their honour that they are actually and habitually 
participating without payment in the self-employed activity of the 
partner and that they are not personally covered by a compulsory old-
age pension insurance scheme. The contributions of these spouses are 
calculated either on the basis of one-third of the social security 
ceiling or according to the professional income of the head of the 
undertaking up to the social security ceiling, at their own choice. 
Although the spouse of a single partner in an EURL enjoys social rights 
in respect of maternity and old age pension, she is not however 
considered to be an assisting spouse ("collaborateur") within the 
meaning of the law of 10 July 1982 (or in other words cannot be a 
co-worker in the EURL, which is a corporate entity). Hence the spouse 
of a single partner in an EURL has no professional rights resulting 
from the adoption of the status of co-worker as he/she will be deemed 
not to have the necessary powers. Nor will he/she be entitled to take 
part in elections to the Chambers of Trade or Commerce and Industry. 
Decree No 89-628 of 24 July 1989 introduced the possibility for spouses 
assisting members of the liberal professions to join a liberal 
professions old-age insurance scheme voluntarily and to constitute 
their own entitlements to retirement benefits. This possibility is 
also open to spouses of lawyers as from 17 March, 1993 (Decree nV .92-
425 OJ 24.3-93). 
A farmer's spouse who has not chosen a specific status is not 
considered, from the point of view of social legislation as it applies 
to agriculture, as pursuing a professional activity, even though the 
person is participating in the work of the agricultural holding, and as 
such is not insured in her own right. The de facto social rights of 
the spouses of farmers are determined according either to their family 
situation, which entitles them to cash benefits under the sickness 
insurance scheme for maternity without having to pay contributions, or 
a presumption that they are participating in the work,. which entitles 
the spouse to a lump sum retirement pension provided that the farm 
manager pays an individual old-age pension insurance contribution (the 
lump-sum retirement pension is FF 15 120 per year in 1992). 
ZQ 
On the other hand, a spouse who cannot show proof of personal 
professional income and is not insured in her own right can draw 
neither invalidity pension nor the proportional retirement benefit to 
which a farmer is entitled. 
This means that many entitled spouses who actually participate in the 
work of the holding do not gain full recognition for their work in the 
form of personal entitlements. A measure has therefore recently been 
introduced to improve the retirement pension entitlements of spouses of 
agricultural workers who have not opted for a specific status. 
Article 12 of Law 91-1407 of 31 December 1991 on social contributions 
in agriculture and introducing the early retirement scheme for farmers 
implemented by Decree No 92-1111 of 2 October 1992 now allows a married 
couple running a farm to opt to share the proportional retirement 
points which are at present only attributed to the spouse who manages 
the undertaking. The same Decree also specifies that a married couple 
may opt to share the proportional retirement points where the spouse of 
a farm manager does not belong to another retirement scheme by virtue 
of the pursuit of a professional activity and is not disabled. 
The application to take up the option of sharing the points must be 
signed by both spouses. The option is valid for one year and is 
automatically renewed. Points are shared out annually and this 
allocation is final. The arrangement is terminated either at the 
request of both spouses or automatically if one of the spouses no 
longer meets the qualifying conditions. 
ARTICLE 7 
Assisting spouse status 
In order to qualify for this status, the spouse must provide evidence 
to that effect, requesting that the words 'assisting spouse' be entered 
in the trades or business register alongside the entry for the owner of 
the undertaking. He/she must then "actively participate in his/her 
spouse's activity without remuneration and without exercising any other 
professional activity" (Article 8, Chapter III of Law No 82-596 of 
v 10 July 1982). 
This gives the spouse certain professional and social rights. 
* Professional rights 
1. The assisting spouse is deemed to have received from the manager of 
the undertaking the authorization to carry out on this person's 
behalf the necessary administrative activities involved in its 
running. 
2. He/she may vote and stand for election in elections for chambers of 
commerce, chambers of trade and pension insurance funds. 
•Social rights: See Articles 6 and 8. 
z^. 
ARTICLE 8 
Sickness/maternity insurance for all female self-employed workers in 
non-agricultural professions: 
The Law of 10 July 1982 and its implementing Decree of 31 December 1982 
introduced the maternity grant and an allowance enabling the women 
concerned to be replaced by paid staff, both in the case of women 
personally pursuing an industrial, commercial or craft activity or 
liberal profession and personally contributing to a self-employed 
workers' scheme, and for wives assisting industrialists, traders, 
craftmen or members of the liberal professions. They also receive a 
flat-rate maternity grant equal to FF 5 790 (as at 1 July 1992) and, if 
they have themselves replaced by salaried staff, a concurrent relief 
allowance which is payable for a maximum of 28 days. 
Sickness/maternity insurance for self-employed women in agriculture: 
All women working in the agricultural holding and carrying out 
agricultural work are entitled to relief services organized by the 
profession, regardless of their legal status. They may have themselves 
replaced, in the event of maternity, by salaried staff for a maximum 
period of 56 days; the amount of the relief grant payable to them is 
equal to 90% of the cost (the remaining 10% being the contribution of 
the female agricultural worker). 
The replacement cost ceiling to which this 90% figure applies was set 
on 27 July 1992 at: 
FF 478.40 per day of full-time replacement, 
FF 58.24 per hour of replacement where the service is provided for 
less than eight hours per day. 
ARTICLE 9 
No information was forthcoming on this article. 
ARTICLE 10 
1988: Production of an information video (lasting 20 minutes) 
describing the situation of women in a rural environment, aimed at 
informing and raising the awareness of local decision-makers and people 
living and working in the.countryside about the involvement of women in 
the rural economy and their role in every area of rural development. 
October 1992: Launching of an information campaign to increase 
awareness of the rights of spouses of craftsmen and traders. An 
information file on the rights of craftsmen and traders• wives appeared 
in the magazine published by the pension funds for craft workers 
("Contact AVA" and for traders ("ORGANIC Information"). The campaign 
is aimed at all craftsmen and tradesmen in France. 
in March 1993 a guide to the rights of women farmers in France was 
published by the National information Centre for Womens' Rights. 
VI 
7. Ireland 
ARTICLE 4 
The Employment Equality Act (1977) prohibits discrimination on grounds 
of sex or marital status as regards access to employment, vocational 
training or professional experience, section 6 of the Act makes it 
illegal to discriminate in respect of access to vocational training 
courses or the manner in which training courses and all other types of 
training are advertised (except in the case of positive action -
Section 15) 
ARTICLE 5 
The provisions of the Companies Acts from 1963 to 1990 make no 
distinction as between men and women. 
A married couple may be members of a company and, according to the 
Companies Registration Office, a large proportion of all registered 
companies are formed by married couples. 
ARTICLE 6 
Self-employed contributors to retirement pension schemes automatically 
acquire entitlement to an adult dependent's allowance in respect of 
their spouse. This allowance may be paid directly to the pensioner as 
part of the pension or the adult dependent may apply to have the 
allowance paid directly to him/her. 
The Social Welfare Act exempts assisting spouses from compulsory social 
insurance as self-employed contributors. This suggests that they are 
unable to take out voluntary insurance.12 
ARTICLE 7 
The National Pensions Board, which was set up to advise the Minister 
for Social Welfare on pensions policy generally, is currently examining 
the feasibility of extending compulsory social insurance cover for 
pensions to assisting relatives (including spouses) who directly or 
indirectly assist an employed or self-employed person in earning the 
household income and/or who are mainly dependent on that income. 
ARTICLE 8 
Female self-employed workers and the wives of self-employed workers 
have no access to temporary replacement services and are not entitled 
to cash benefits when interrupting their activity owing to pregnancy 
and motherhood. 
12 Unless they previously had been in receipt of an income which was 
subject to compulsory social insurance. In that case they are 
entitled to maintain their pension cover by paying contributions on 
a voluntary basis. 
ARTICLE 9 •?s> 
Individuals who consider that they have been discriminated against may 
take their cases to the Labour Court, which then decides whether to 
refer the matter to an Equality officer for investigation and the issue 
of a recommendation, or to an industrial -relations officer for 
conciliation. 
The latter option is rarely used. The trade unions and the Employment 
Equality Agency can take cases to court on behalf of an individual or 
group collectively. 
ARTICLE 10 
All vocational training centres have been informed about the rules on 
equal opportunities so that they may apply them in all training 
programmes. The training and employment authority (FAS) actively 
encourages women to take up the full range of training opportunities 
available, particularly in non-traditional areas. 
Conclusions 
1. Assisting spouses (male or female) are only protected via the 
self-employed worker. They cannot contribute voluntarily in order 
to increase their entitlements, which are confined to retirement 
benefits. 
2. No steps have been taken to entitle female workers an allowance 
during motherhood; there does not appear to be any replacement 
service. 
3. Article 10 not only stipulated that vocational training centres 
should be informed; it also referred to bodies representing 
self-employed workers and their spouses, and these bodies have not 
been informed. 
*o 
8. Italy 
The Italian Government points out that the Directive lays down 
principles for which there is no equivalent in Italian law. There are 
many different forms of self-employed activity, whose common feature is 
the lack of fixed rules, but there is no inequality of treatment 
between men and women. 
Article 4 
Italian law prohibits all discrimination on grounds of sex as regards 
access to and the pursuit of the various forms of activity in a 
self-employed capacity. This principle is enshrined in Law No 66 of 
9 February 1963. 
Article 5 
The family enterprise 
This concept was introduced by Law No 151 of 19 May 1975, supplemented 
by Law No 903 of 9 December 1977.13 This law stipulates that 
self-employed women habitually engaged in an activity in the family 
business are entitled to represent the business on the statutory bodies 
of cooperatives, consortia and all other forms of association. 
Article 230a of the Civil Code provides inter alia that, unless a 
different relationship can be identified, a family member14 habitually 
pursuing a professional activity within the family or within the family 
enterprise15 is entitled to maintenance in keeping with the situation 
of the family assets (means-tested benefits?) and a share in the 
profits of the family business and in the property acquired with such 
profits and in any extension of the business, and also in respect of 
goodwill, in proportion to the quantity and quality of the services 
rendered. Decisions concerning the use of profits and extensions to 
the business, and those pertaining to extraordinary administration, 
production policy and termination of activity, are taken, by majority, 
by the family members participating in the said enterprise. 
Work done by the spouse of a self-employed worker seems to be broadly 
covered by this article, which acknowledges the spouse's right to 
participate in the profits of the business in proportion to the quality 
and quantity of work done and which emphasizes the principle that a 
woman's work is equivalent to that of a man. 
As far as agriculture is concerned, tacit family groups are governed by 
customary practice, but such practice is not at variance with the 
abovementioned provisions. 
13 On equality of treatment between men and women as regards 
employment. 
14 Family member means spouse, relatives up to the third degree and 
relatives by marriage up to the second degree. 
15 Family business means an enterprise in which the spouse, relatives 
up to the third degree and relatives by marriage up to the second 
degree collaborate 
3"? 
Liberal professions 
Attention must be drawn, however, to a ruling of the Appeal Court of 
19 May 1987, No 3287, which devalues the work carried out by a person 
to assist his/her spouse in a liberal profession. This ruling and the 
resultant case-law equate this professional activity with work done 
free of charge ("affectionis causa"). Article 230a does not apply to 
the liberal professions since they (lawyers, solicitors) are not 
considered as businesses. In such a case common law applies. 
The adoption of the Directive has led to a change in the interpretation 
of the case-law of lower courts and the legal theory governing the 
provisions of the civil Code and to an extension of protection for 
activities carried out in a family structure which is not organized as 
a business. In spite of the existence of the Directive, the prevailing 
interpretation (Appeal court) remains one of a presumption that the 
professional activity is carried out free of charge in every case where 
the persons concerned have conjugal ties, particularly where they 
cohabit. 
Article 8 
The Law of 11 December 1990 (No 379) introduced a maternity allowance 
for self-employed women in the liberal professions. These women 
receive funds from a social insurance scheme representing 80% of 
five-twelfths of the amount earned and declared in their tax returns 
during the two previous years, for a period of five months (two months 
before the birth and three months afterwards). 
Law No 546 of 29 December 1987 already introduced a maternity allowance 
for self-employed women. 
Article 10 
Law No 125 of 10 April 1991 (positive actions to achieve equality 
between men and women at work) shifted the onus of proof in favour of 
the worker who considers him or herself wronged by discriminatory 
behaviour (Article 4(5)). 
Conclusion 
1. In Italy the question of recognition of the work of a spouse is 
subordinated to the concept of a family business. This does not appear 
to be conducive to the acquisition of personal social security 
entitlements. 
Unfortunately, this concept only applies if an enterprise has been duly 
formed. Spouses of self-employed persons in the liberal professions 
are therefore excluded. 
2. Italy has not notified the Commission of any specific measures to 
inform those concerned by the Directive about its provisions. 
"S Luxembourg \. 
General Comment: The replies from Luxembourg did not deal with 
Articles 7, 9 and 10. 
ARTICLE 5 
Spouses are allowed to form a company subject to Article 181(2) of the 
amended law of 10 August 1915 on commercial companies. This article 
enables spouses to be partners in a limited liability company unless 
the articles of association of the company alter the matrimonial 
property arrangements agreed between the spouses. This restriction 
applies whatever the matrimonial property arrangements in question. 
ARTICLE 6 
Persons participating in a non-industrial, commercial and agricultural 
activity of their self-employed spouse are in principle insured under a 
compulsory insurance scheme for sickness and pension provision. 
Failing this they are entitled to cash benefits as co-insured persons. 
At the request of the person concerned, the fund committee may waive 
the requirement for the assisting spouse to contribute unless the 
insured person is a farmer. Consequently, spouses covered by the 
Directive receive sickness, accident, invalidity, old age and 
survivor's benefits. 
In the event of disability, the spouse's cash benefits are suspended 
until the first day of the fourth month following the month in which 
the incapacity for work was declared. This allowance is equal to the 
basis for assessing contributions and may not exceed five times the 
minimum reference wage.1" 
ARTICLE 8 
The law of 27 July 1992 reforming the sickness insurance and welfare 
sector extends the entitlement to a maternity grant to women engaged in 
a self-employed activity.1^ 
The spouse must be at least 18 years old and be chiefly employed in 
that capacity. The same rules are applied to partners who habitually 
take part in the day-to-day management or who, individually or with 
their spouse, hold more than half of the shares in the undertaking. 
The allowance corresponds to the assessment base but must not exceed 
five times the minimum social wage and is paid for eight weeks before 
and eight weeks after confinement. This measure, which places female 
self-employed and salaried workers on an equal footing as regards the 
type of benefit during maternity leave, will come into force on 1 
January 1994. 
16 Article 12 of the Lav; of 27 July 1992 reforming sickness insurance 
and welfare. 
17 Articles i, 5 and 25. 
33 
The requirement for the wife to contribute may be waived at her 
request, unless she holds more than half of the shares or is assisting 
in an agricultural holding. The waiver may only be granted in 
conjunction with the waiver for pension insurance. 
There is no provision for replacement services. 
Conclusions: 
1. It is unfortunate that, although Luxembourg has introduced a 
compulsory insurance scheme for spouses within the meaning of 
Article 2(b), there is no effective mechanism to enforce this 
obligation. 
In the absence of a genuine policy to inform and increase the awareness 
of self-employed spouses of their entitlements, the usefulness of 
compulsory insurance is open to question. 
2. In 1994 the wives of self-employed workers who habitually 
participate in the business or the holding will be entitled to a real 
maternity allowance and not just the lump sum allowance which has been 
paid in the past to all women domiciled in Luxembourg. They will be 
recognized as full members of the workforce. 
3 V 
10. Netherlands 
ARTICLE 4 
There is no discrimination on grounds of sex in respect of access to, 
or the establishment and extension of a business. 
ARTICLE 5 
The formation of a company between spouses is not subject to any 
specific conditions applicable only to married couples. 
ARTICLE 6 
All Dutch citizens have to contribute around 30% of their income in 
addition to income tax in order to be entitled to benefits under the 
national health system (Ziekenfonds). Workers earning above a certain 
level are required to take out a private insurance. 
Self-employed workers and their spouses are, like all Dutch citizens, 
covered by the national insurance scheme or a private insurance. They 
are entitled to retirement pension, invalidity pension and survivor's 
pension as well as family allowances. 
Workers who change their status from employee to self-employed are also 
allowed to contribute on a voluntary basis. 
ARTICLE 7 
In 1985 a committee was set up to look at the question of women 
assisting self-employed spouses. This committee was made up of 
representatives of the government, small and medium-sized businesses 
and the farming sector. Its task was to identify the problems related 
to the status of women assisting self-employed spouses in the areas of 
civil and fiscal legislation, education and social security. 
Unfortunately the findings of this committee have not been passed on by 
the Dutch authorities. 
ARTICLE 8 
Under sickness insurance legislation, women are entitled to 16 weeks 
leave. If after 16 weeks they are still incapable of working, their 
leave may be extended to 52 weeks. 
There is a national association covering all replacement services in 
the Netherlands. 
There is also the possibility of contributing to a private insurance 
plan, the cost of which will vary according to the services offered. 
State subsidies are also granted to provide lower-cost replacement 
services in the case of sickness, accident, maternity, holiday and 
training. 
Zr 
ARTICLE 9 
No information 
ARTICLE 10 
Letters and circulars have been sent to the bodies representing self-
employed workers and vocational training centres, informing them of the 
importance of the Directive. 
Conclusion 
Dutch legislation appears to conform to the Directive. It is 
nevertheless to be regretted that an assisting spouse still cannot be 
employed by the self-employed spouse he/she is assisting. Under Dutch 
legislation there has to be a dependent relationship in an employment 
contract, but this is considered undesirable between spouses.18 
Access to vocational training is open to both young men and young women 
but the evidence, at least in the agricultural industry, is that fewer 
girls are taking up training schemes and that things are moving slowly. 
18 Parliamentary Acts 1988-1989 No 19622-13. 
3 C 
11. Portugal 
ARTICLE 4 
In Portugal there is no discrimination, either legally or de facto, in respect 
of access to training or the establishment, equipment or extension of a 
business or the launching or extension of any other form of self-employed 
activity. 
ARTICLE 5 
The regulations governing spouses' joint property are precise and clear and 
leave a large measure of freedom to a husband and wife who wish to form a 
company together or to both hold shares in a company. 
For overriding reasons of public policy relating to the protection of the 
household's estate and the need to prevent one spouse from having an unfair 
advantage over the other, the only restriction imposed is that only one of the 
spouses may assume unlimited liability. 
Nonetheless, it is generally understood that this restriction does not apply 
when the couple have a pre-marriage agreement dividing their property (Article 
1735 of the Civil Code). 
Where, because of the matrimonial property regime, the shareholding in the 
company is common to both spouses, the shareholder is deemed to be the spouse 
who concluded the partnership agreement, or, if the shareholding was acquired 
subsequently, the spouse through whom the shareholding in the company was made 
over to the couple. 
However, this does not prevent the shareholder's spouse from exercising the 
administrative powers provided for in civil law, if the spouse who is the 
shareholder is unable to exercise them for whatever reason, nor does it affect 
the rights of the shareholder's spouse over the shareholding in the event of 
the shareholder's death. 
ARTICLE 6 
Self-employed workers are insured against illness19 (optional contribution for 
occupational illnesses), maternity, invalidity, old age and death. 
The spouses referred to in Article 2(b) of self-employed workers pursuing an 
activity on their own account are protected by the social security system of 
the self-employed worker and covered for the same risks. In cases other than 
that of a spouse of an entrepreneur working for his own account, the spouses 
referred to in Article 2(b) can pay into a voluntary scheme which covers them 
for old age, invalidity and death. 
ARTICLE 7 
No information on the measures taken. 
Health benefits are not part of the social security system. They are 
provided to all residents under the national health service. 
3 ? 
ARTICLE 8 
Self-employed female workers are entitled to 90 days' maternity leave plus a 
maternity allowance provided that they have been contributing for at least six 
months (not necessarily consecutively) and have declared their earnings. 
By contrast, a wife assisting a self-employed worker cannot' enjoy the same 
protection through that worker's insurance scheme and cannot contribute 
voluntarily to cover the contingency of motherhood. 
There are no services supplying temporary replacements or social services to 
deal with the problem of the assisting wife being unable to work. 
ARTICLE 9 
The ordinary courts have jurisdiction in respect of disputes on questions of 
equality of treatment under the Directive. 
There are two commissions in Portugal - the Commission for Equality and 
Women's Rights, which reports to the Prime Minister, and the Commission for 
Equality in Employment atJthe Workplace, which is attached to the Ministry for 
Employment. These are not appeal bodies but administrative committees with 
advisory powers. ^ 
The rights of collective pursuit of claims may be conferred on representative 
groups by individuals. There is no such provision for trade unions or other 
groups in general. 
ARTICLE 10 
The only source of information on the existing or adopted texts implementing 
this Directive is publication in the Official Gazette. This is the normal 
means of publicising a new law. However, no other steps were taken to bring 
this information to the attention of bodies representing self-employed workers 
and vocational training centres as required by this Article of the Directive. 
Conclusions 
1. Article 8 has not led to any legislation being adopted in this area. 
2. Although the Official Gazette is the standard means of publicising 
legislative measures, it must still be noted that Article 10 envisages a 
more active information strategy aimed at those most concerned by this 
Directive. 
3? 
12. United Kingdom 
INTRODUCTION 
The United Kingdom takes the view that the principle of equal treatment 
was already established in UK law prior to the adoption of the 
Directive and that, therefore, it has not been necessary for British 
law to conform to the Directive's provisions. 
No specific legislative measures were needed to implement the 
provisions. The United Kingdom considers that there is no need for any 
further initiatives in this area. 
ARTICLE 4 
The Sex Discrimination Act of 1975 and the Equal Pay Act of 1970, and 
the equivalent legislation in Northern Ireland, established the 
principle of equal treatment under British law. There is legislation 
in place prohibiting discrimination on grounds of sex for each 
self-employed category, including agriculture, in access to the 
professions, vocational training and in-service training, vocational 
guidance, retraining and, where appropriate, promotion. 
United Kingdom legislation ensures equal treatment in respect of the 
establishment, extension and equipment of a business. Furthermore, 
advice and vocational training as well as financial assistance are 
available to those starting up a business regardless of sex. 
Spouses who are not partners have equal rights. Male and female 
spouses have the same rights and obligations. Where the spouses are 
partners their rights and obligations are determined, as in all 
partnerships, by their partnership agreement and by the Partnership Act 
of 1890 which places no obstacle to the provision of equal rights. 
There is no de facto inequality in this area. 
ARTICLE 5 
No change to UK legislation was necessary in order to ensure compliance 
with this part of the Directive. Companies may be set up by spouses on 
an equal footing and the funds used by the two spouses may be common 
property. There are no indirect obstacles to the formation of a 
company by spouses (the relevant legislation is the 1985 Companies 
Act) . 
There are no provisions in UK legislation which would prevent the 
company from continuing its business in the case of death or divorce 
and the dissolution of the marriage has no adverse legal consequences 
for the activity of the company or the rights of the participating 
spouses. The United Kingdom adds a rider that divorce may have 
unfavourable practical consequences "if the couple feel unable to 
continue working together", but acknowledges that there is no legal 
remedy for this problem. 
S3 
ARTICLE 6 
The United Kingdom has a contributory social security system for 
self-employed workers which covers the contingencies of sickness, 
maternity, retirement and death. This system includes the protection 
of spouses referred to in Article 2(b) of the Directive. The risks for 
these individuals are covered by the old age pension and widows' 
benefit. The benefits are calculated according to the husband's 
contributions. In the case of the old age pension, a married women who 
has never contributed can receive a pension from the age of 60 based on 
her husband's contributions providing he is receiving his own 
retirement pension (retirement age for men is 65). The married women's 
pension is equal to 60% of her husband's basic state pension. 
There is also a contributory voluntary social security scheme which is 
accessible to both women and men (for retirement insurance and, in the 
case of women, for a survivor's pension). 
ARTICLE 7 
The United Kingdom authorities are currently looking into the measures 
to be taken on the basis of Article 7 (as they were already doing in 
1989). Taking agriculture as an example, the United Kingdom stresses 
that "the fact that farmers' wives make a significant contribution to 
the farm business in many instances is already widely recognized". 
The Government considers that other initiatives in this area are 
unnecessary. 
ARTICLE 8 
Self-employed women may be entitled to maternity benefit under the 
national social security scheme provided they meet the qualifying 
conditions. The maternity allowance is currently £40.6 0 per week for 
up to 18 weeks. 
Self-employed women do not have a right to maternity leave as such 
since, in the United Kingdom, this is a right granted to employees by 
employers and a self-employed woman cannot grant the right against 
herself. The information provided does not refer to a maternity 
allowance or maternity leave for the wives of self-employed workers -
presumably because no such rights exist. 
Self-employed women are not entitled to a relief allowance. In 
agriculture, relief services exist in the private sector. According to 
figures for 1990, there are 55 000 self-employed women in the United 
Kingdom receiving maternity benefit each year. 
Wo 
ARTICLE 9 
Every individual has the right to seek legal redress. The competent 
body will depend on the type of judicial recourse chosen - it could be 
a court of law, an industrial tribunal or a social security tribunal. 
There are two equal opportunities commissions in the United Kingdom, 
one for Great Britain and the other for Northern Ireland. They have 
powers to conduct investigations and provide advice and assistance for 
individuals who consider themselves discriminated against. 
There is no simplified procedure, even though industrial tribunals have 
a less formal procedure than the ordinary courts of law. There is no 
possibility for collective redress. No separate records are kept of 
the numbil sanctions. 
ARTICLE 10 
The adoption of the Directive was announced in Parliament in 19 86 and 
copies of the Directive were sent to organizations representing the 
self-employed, the Equal Opportunities commissions, the National 
Farmers Union and the then Training Agency. 
There is also a wide range of public information booklets and leaflets 
on measures to implement the Directive. The equal opportunities bodies 
have also produced information on this subject. 
The list of organizations representing the self-employed to whom copies 
of the Directive have been sent is as follows: the Alliance of small 
Firms and Self-Employed People, the Association of British Chambers of 
Commerce, the Association of Independent Business, the Forum of Private 
Business, the National chambers of Trade, the CBI Smaller Firms 
Council, the Union of Independent companies, the United Kingdom Science 
Park Association, the National Federation of Self Employed and Small 
Businesses. 
H> 
CONCLUSION 
Legislation and practice appear to conform to the provisions of 
Directive 86/613. In general, anyone engaged in a professional 
activity is considered as being required to register as an employee or 
a self-employed person, even if their income/profits are too low to pay 
compulsory contributions. 
Consequently, the Government believes that the adoption of ancillary 
measures for spouses of self-employed persons who assist the worker 
without being an employee or a partner will be difficult to justify 
unless comparable measures are applied to the spouses of all workers, 
whether or not they are employees. 
Ye 
PART III: CONCLUSIONS 
1. In strictly legal terms, it appears that Directive 86/613/EEC has 
been implemented in the Member States. However, the practical 
result is not entirely satisfactory when measured against the prime 
objectives of the Directive, which was a general improvement in the 
status of assisting spouses. 
2. Because of the wide range of different rules covered by the 
Directive, it was extremely difficult to determine whether national 
legislation complies with Community law. Also, it was not possible 
within the scope of this report to consider whether Member States 
had taken all necessary measures to eliminate indirect 
discrimination, which figures in the definition used in Article 3 
^, of the Directive. A much more detailed and far-reaching survey of 
- national law would be required in order to establish whether such 
discrimination persists. 
3. It is clear that there has been no overall policy for dealing with 
the situation of assisting spouses as defined in Article 2(b), 
despite the clear intention of the Directive to bring about an 
improvement in their professional status. 
4. From the review of the situation in the Member States it would 
appear that there are certain practical problems in implementing 
the Directive: 
- Firstly, the self-employed do not constitute a homogenous group. 
Consequently, social security arrangements for self-employed 
persons vary considerably, with compulsory national, general and 
special schemes co-existing alongside voluntary general, special 
\^ and private schemes. 
with reference to spouses who are not protected under the self-
employed worker's social security scheme, it should be pointed out 
that, for the purposes of social security, a distinction is made 
between : 
* own rights, that is to say the personal entitlements which the 
insured person acquires through his own economic activity and 
residence in a country; 
* derived rights, that is to say the rights which the beneficiary 
has by virtue of legal or family ties with the holder of own 
rights. 
The Directive left it open for Member States to grant either 
individual or derived rights to the spouses referred to in Article 
2(b). It should be pointed out, nonetheless, that with a view to 
the recognition of the work of the spouse (Article 7), the only way 
in which this objective is likely to be achieved is for spouses to 
be granted social security entitlements in their own right. 
Hi 
In this context. Article 11 jf the Commission's Draft Directive of 
23 October 1987 (COM (87) 494 final) gives Member States the option 
to grant own rights as an alternative to derived rights as an 
incentive to remedy the situation of individuals such as assisting 
spouses. This draft directive is still pending before the Council. 
- Secondly, the terms of the Directive were quite vague and did not 
specify particular action which could have been taken in certain 
areas. Instead, Member states were called upon to consider various 
strategies for improving the situation of the self-employed and 
their assisting spouses. The lack of direction here may be 
responsible in part for the minimal response in the Member States. 
However, it must be added that even the more straightforward 
requirements of the Directive, such as the duty to inform the 
people concerned (which was mandatory even for those countries who 
considered that their law was already in line with the Directive), 
do not appear to have been implemented with anything like the 
necessary vigour. 
Though not a conclusion as such, it is appropriate to bear in mind 
that there is a clear message coming from bodies representing the 
self-employed that the work of assisting spouses must be formally 
recognised and their social security rights clearly defined. 
The European Parliament has also adopted a resolution which refers 
to the situation of women in agriculture in the Member states (A3 
0409/93). The Resolution calls on the Commission and the Member 
States to try and achieve more for female helpers on farms so as to 
give them their own rights and not merely indirect entitlements. 
6. In light of the foregoing, it is evident that the Commission and 
the Member States will need to explore the possibilities for 
further work in this area in order to meet the aims of the 
Directive and to advance the position of the self-employed and 
their assisting spouses. 
Annex wv 
No L 359/56 19. 12. 86 
COUNCIL 
COUNCIL DIRECTIVE 
of 11 December 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 
die protection of self-employed women during pregnancy and motherhood 
(86/613/EEQ 
THE COUNCIL OF THE EUROPEAN COMMUNITIES, 
Having regard to the Treaty establishing the European 
Economic Community, and in particular Articles 100 and 
235 thereof, 
Having regard to the proposal from the Commission ('), 
Having regard to the opinion of the European Parli­
ament 0, 
Having regard to the opinion of the Economic and Social 
Committee (3), 
Whereas, in its resolution of 12 July 1982 on the promo­
tion of equal opportunities for women (4), the Council 
approved the general objectives of the Commission 
communication concerning a new Community action 
programme on the promotion of equal opportunities for 
women (1982 to 1985) and expressed the will to imple­
ment appropriate measures to achieve them ; 
Whereas action 5 of the programme referred to above 
concerns the application of the principle of equal treat­
ment to self-employed women and to women in agricul-
cure ; 
Whereas the implementation of the principle of equal 
pay for men and women workers, as laid down in Article 
119 of the Treaty, forms an integral part of the establish­
ment and functioning of the common market; 
Whereas on 10 February 1975 the Council adopted 
Directive 75/117/EEC on the approximation of the laws 
of the Member States relating to the application of the 
principle of equal pay for men and women f); 
Whereas, as regards other aspects of equality of treatment 
between men and women, on 9 February 1976 the 
Council adopted Directive 76/207/EEC on the imple­
mentation of the principle of equal treament for men and 
women as regards access to employment, vocational 
(') OJ No C 113, 27. 4. 1984, p. 4. 
0 OJ No C 172, 2. 7. 1984, p. 90. 
0 OJ No C 343, 24. 12. 1984, p. 1. 
(«) OJ No C 186, 21. 7. 1982, p. 3. 
O OJ No L 45, 19. 2. 1975, p. 19. training and promotion, and working conditions (*) and 
on 19 December 1978 Directive 79/7/EEC on the 
progressive implementation of the principle of equal 
treatment for men and women in matters of social secu­
rity 0; 
Whereas, as regards persons engaged in a self-employed 
capacity, in an activity in which their spouses are also 
engaged, the implementation of the principle of equal 
treatment should be pursued through the adoption of / 
detailed provisions designed to cover the specific situation1 
of these persons; 
Whereas differences persist between the Member States in 
this field, whereas, therefore it is necessary to approximate 
national provisions with regard to the application of the 
principle of equal treatment; 
Whereas in certain respects the Treaty does not confer 
the powers necessary for the specific actions required ; 
Whereas the implementation of the principle of equal 
treatment is without prejudice to measures concerning the 
protection of women during pregnancy and motherhood, 
HAS ADOPTED THIS DIRECTIVE : 
SECTION I 
Aims and scope 
Article 1 
The purpose of this Directive is to ensure, in accordance 
with the following provisions, application in the Member 
States of the principle of equal treatment as between men 
and women engaged in an activity in a self-employed 
capacity, or contributing to the pursuit of such an activity, 
as regards those aspects not covered by Directives 
76/207/EEC and 79/7/EEC. 
8 OJ No L 39, 14. 2. 1975, p. 40. 
OJ No L 6, 10. 1. 1979, p. 24. 
SOCIAL EUROPE 3/91 
V 
19. 12. 86 No L 359/57 
Article 2 
This Directive covers: 
(a) self-employed workers, i.e. all persons pursuing a 
gainful activity for their own account, under the 
conditions laid down by national law, including 
farmers and members of the liberal professions; 
(b) their spouses, not being employees or partners, where 
they habitually, under the conditions laid down by 
national law, participate in the activities of the self-
employed worker and perform the same tasks or ancil­
lary tasks. 
Article 3 
For the purposes of this Directive the principle of equal 
treatment implies the absence of all discrimination on 
grounds of sex, either direcdy or indirectly, by reference 
in particular to marital or family status. Article 7 
Member States shall undertake to examine under what 
conditions recognition of the work of the spouses referred 
to in Article 2 (t>) may be encouraged and, in the light of 
such examination, consider any appropriate steps for 
encouraging such recognition. 
Article 8 
Member States shall undertake to examine whether, and 
under what conditions, female self-employed workers and 
the wives of self-employed workers may, during interrup­
tions in their occupaional activity owing to pregnancy or 
motherhood, 
— have access to services supplying temporary replace­
ments or existing national social services, or 
— be entitled to cash benefits under a social security 
scheme or under any other public social protection 
system. 
SECTION II 
SECTION HI 
Equal treatment between self-employed male and 
female workers — position of the spouses without 
professional status of self-employed workers — 
protection of self-employed workers or wives of 
self-employed workers during pregnancy and 
motherhood 
Article 4 
As regards self-employed persons, Member States shall 
take the measures necessary to ensure the elimination of 
all provisions which are contrary to the principle of equal 
treatment as defined in Directive 76/207/EEC, especially 
in respect of the establishment, equipment or extension 
of a business or the launching or extension of any other 
form of self-employed activity including financial facili­
ties. 
Article 5 
Without prejudice to the specific conditions for access to 
certain activities which apply equally to both sexes, 
Member States shall take the measures necessary to ensure 
that the conditions for the formation of a company 
between spouses are not more restrictive than the condi­
tions for the formation of a company between unmarried 
persons. 
Article 6 
Where a contributory social security system for self-
employed workers exists in a Member State, that Member 
State shall take the necessary measures to enable the 
spouses referred to in Article 2 (b) who are not protected 
under the self-employed worker's social security scheme 
to join a contributory social security scheme voluntarily. General and final provisions 
Article 9 
Member States shall introduce into their national legal 
systems such measures as are necessary to enable all 
persons who consider themselves wronged by failure to 
apply the principle of equal treatment in self-employed 
activities to pursue their claims by judicial process, 
possibly after recourse to other competent authorities. 
Article 10 
Member States shall ensure that the measures adopted 
pursuant to this Directive, together with the relevant 
provisions already in force, are brought to the attention of 
bodies representing self-employed workers and vocational 
training centres. 
Article 11 
The Council shall review this Directive, on a proposal 
from the Commission, before 1 July 1993. 
Article 12 
1. Member States shall bring into force the laws, regu­
lations and administrative provisions necessary to comply 
with this Directive not later than 30 June 1989. 
However, if a Member State which, in order to comply 
with Article 5 of this Directive, has to amend its legisla­
tion on matrimonial rights and obligations, the date on 
which such Member State must comply with Article 5 
shall be 30 June 1991. 
R<W 
% 
No L 359/58 19. 12. 86 
2. Member States shall immediately inform the Article 14 
Commission of the measures taken to comply with this _ . ^. ,. , ,.,, », 
Directive *nis Directive is addressed to the Member States. 
Article 13 Done at Brussels, 11 December 1986. 
Member States shall forward to the Commission, not later For the Council 
than 30 June 1991, all the information necessary to _ Pr^nApnt 
enable it to draw up a report on the application of this e 
Directive for submission to the Council. A. CLARKE 
W_ 3/91 
ISSN 0254-1475 
COM (94) 163 final 
DOCUMENTS 
EN 04 
Catalogue number : CB-CO-94-176-EN-C 
ISBN 92-77-67869-0 
Office for Official Publications of the European Communities 
L-2985 Luxembourg