TEXTS ADOPTED
1. Equal treatment for men and women as regards access to employment ***II
A5-0358/2001
European Parliament legislative resolution on the Council common position for adopting a Euro-
pean Parliament and Council directive amending Council Directive 76/207/EEC on the implemen-tation of the principle of equal treatment for men and women as regards access to employment,vocational training and promotion, and working conditions (9848/1/2001 9dash C5-0387/2001 9dash
2000/0142(COD))
(Codecision procedure: second reading)
The European Parliament,
.dash having regard to the Council common position (9848/1/2001 .dash C5-0387/2001),
.dash having regard to its position at first reading(
1) on the Commission proposal to Parliament and the
Council (COM(2000)334)(2),
.dash having regard to the amended proposal (COM(2001)321)(3),
.dash having regard to Article251(2) of the EC Treaty,
.dash having regard to Rule 80 of its Rules of Procedure,.dash having regard to the recommendation for second reading of the Committee on Women’s Rights and
Equal Opportunities (A5-0358/2001),
1. Amends the common position as follows;
2. Instructs its President to forward its position to the Council and Commission.
COUNCIL
COMMON POSITIONAMENDMENTS
BY PARLIAMENT
Amendment 1
RECITAL 8a (new)
(8a) Member States should introduce into their national
legal systems measures obliging those responsible for accessto employment, occupation or training to take preventivemeasures against harassment and sexual harassment in theworkplace, which may include a confidential counselling ser-vice.
Amendment 2
RECITAL 16
(16) The Court of Justice has ruled that, having regard to the
fundamental nature of the right to effective judicial protection,employees enjoy such protection even after the employmentrelationship has ended.(16) The Court of Justice has ruled that, having regard to the
fundamental nature of the right to effective judicial protection,employees enjoy such protection even after the employmentrelationship has ended. Anyone defending, or attesting on
behalfof,apersonwhoconsidersher/himselfavictimofdis-
crimination shouldalsoenjoy thesameprotection.
(1) ‘Texts Adopted’ of 31.5.2001, Item 7.
(2) OJ C 337 E, 28.11.2000, p. 204.
(3) OJ C 270 E, 25.9.2001, p. 9.9.5.2002 EN C112E/169 Official Journal of the European Communities
Wednesday 24 October 2001
Amendment 3
ARTICLE 1, POINT 1, INTRODUCTION
Article 1 (Directive 76/207/EEC)
1.InArticle1 the following paragraph shall be inserted: 1. Article1 shallbeamendedasfollows :
(a) Paragraph1shallbereplaced bythefollowing:
1. In accordance with Articles2, 3(2) and 141 of
the Treaty, the purpose of this Directive is to putinto effect in the Member States the principle ofequal treatment for men and women as regardsaccess to employment, including promotion, and tovocational training and as regards working con-ditions and, on the conditions referred to in para-
graph2, social security. This principle is hereinafter
referred toas‘theprinciple ofequaltreatment’.
(b) After paragraph1 the following paragraph shall be
inserted:
Amendments 4 and 5
ARTICLE 1, POINT 2, INTRODUCTION and POINT (a)
Article 2, paragraph 1 (Directive 76/207/EEC)
2. Article2isamendedasfollows : 1a.ThefollowingArticlesshallbeinserted:
(a) Inparagraph1,thefollowingsubparagraphsshallbe
added:Article1a
For the purposes of thefirst subparagraph: For the purposes of this Directive, the following defini-
tionsshallapply:
(a)direct discrimination shall be taken to occur
where one person is treated less favourably ongrounds of sex than another is, has been orwould be treated in a comparable situation./dashdirect discrimination: the situation where one person
is treated less favourably on grounds of sex thananother is, has been or would be treated in a com-parable situation.
(b)indirect discrimination shall be taken to occur
where an apparently neutral provision, criterionor practice would put persons of one sex at aparticular disadvantage compared with personsof the other sex, unless that provision, criterionor practice is objectively justified by a legitimateaim and the means of achieving that aim areappropriate and necessary./dashindirect discrimination :thesituation where an appar-
ently neutral provision, criterion or practice would putpersons of one sex at a particular disadvantage com-pared with persons of the other sex, unless that provi-sion, criterion or practice is objectively justified by alegitimate aim and the means of achieving that aimare appropriate and necessary.
Harassmentshall be deemed to be discrimination
within the meaning of the first subparagraph when
an unwanted conduct related to the sex of a persontakes place with the purpose or effect of violating
the dignity of a person andof creating an intimidat-
ing, hostile, degrading, humiliating or offensiveenvironment. Sexual harassment, which manifests
itself as unwanted conduct of a sexual nature
expressedphysically,verballyornon-verbally ,consti-
tutesaspecific form ofharassment./dashharassment:thesituationwhere an unwanted conduct
related to the sex of a person occurs on the occasion
of access to or at the place of employment, occu-pation or training with the purpose or effect of viol-
ating the dignity of a person orof creating an intimi-
dating, hostile, degrading, humiliating or offensiveenvironment.C112E/170 EN 9.5.2002 Official Journal of the European Communities
Wednesday 24 October 2001
COUNCIL
COMMON POSITIONAMENDMENTS
BY PARLIAMENT
/dashsexual harassment: the situation where any form of
verbal, non-verbal or physical conduct of a sexual
natureoccurs, which the perpetrator knows, or is
under a legal obligation to know, to have the pur-
pose or effect ofviolating thedignityofaperson orof creating an intimidating, hostile, degrading,humiliating oroffensive environment.
Article1b
1. Harassment and sexual harassment within the
meaningofthisDirectiveshallbedeemedtobediscrimi-nationonthegroundsofsexandtherefore prohibited.
Aperson’s rejection of, or submission to, such con-
ductmaynotbeusedasabasisforadecisionaffect-ingthatperson.2. Aperson’srejection of,orsubmissionto,suchcon-
ductshallnot be usedasabasisfor adecision affectingthatperson.
An instruction to discriminate against persons on
grounds of sex shall be deemed to be discriminationwithinthemeaningofthefirst subparagraph.;3. An instruction to discriminate against persons on
grounds of sex shall be deemed to be discriminationwithinthemeaningofthisDirective .
4. MemberStatesshallintheir nationallegalsystems
ensure that those responsible for access to employment,occupationortraining,ortheconditionsrelatingthereto,introduce measures to prevent harassment and sexualharassmentintheworkplace.
2. Article2shallbeamendedasfollows:
Amendment 6
ARTICLE 1, POINT 2, POINT (b)
Article 2, paragraph 2 (Directive 76/207/EEC)
2. Member States may provide, as regards access to employ-
ment including the training leading thereto, that a difference oftreatment which is based on a characteristic related to sex shallnot constitute discrimination where, by reason of the nature ofthe particular occupational activities concerned or of the con-text in which they are carried out, such a characteristic consti-tutes a genuine and determining occupational requirement,provided that the objective is legitimate and the requirementis proportionate.2.Any general exclusion of, or restriction on, one sex
having access to any kind of professional activity or to thetrainingrequired togainaccesstosuchanactivityshallcon-stitute discriminationwithinthemeaningofthisDirective.
Member States may provide, as regards access to employment
including the training leading thereto, that a difference of treat-ment which is based on a characteristic related to sex shall not
constitute discrimination where, by reason of the nature of the
particular occupational activities concerned or of the context inwhich they are carried out, such a characteristic constitutes agenuine and determining occupational requirement, providedthat the objective is legitimate and the requirement is propor-tionate.
Amendment 7
ARTICLE 1, POINT 2, POINT (c)
Article 2, paragraph 3 (Directive 76/207/EEC)
Awoman on maternity leave shall be entitled, after the end
ofherperiodofmaternity leave, to return to her job or to an
equivalent post on terms and conditions which are no lessAt the end of her period of maternity leave or after an
absence directly linked to or following an adoption, awomanshallbe entitled to return to her job or to an equival-9.5.2002 EN C112E/171 Official Journal of the European Communities
Wednesday 24 October 2001
COUNCIL
COMMON POSITIONAMENDMENTS
BY PARLIAMENT
favourable to her and to benefit from any improvement in
working conditions to which she would beentitled during her
absence.ent post on terms and conditions which are no less favourable
to her and to benefit from any improvement in working con-ditions to which she would have been entitled during her
absence.
This Directive shall also be without prejudice to the provisions
of Council Directive 96/34/EC of 3 June 1996 on the frame-work agreement on parental leave concluded by UNICE, CEEPand the ETUC and of Council Directive 92/85/EEC of19 October 1992 on the introduction of measures to encour-age improvements in the safety and health at work of pregnantworkers and workers who have recently given birth or arebreastfeeding (tenth individual Directive within the meaning ofArticle16(1) of Directive 89/391/EEC). It is also without preju-dice to the right of Member States to recognise a distinct rightto paternity leave. Those Member States which recognise sucha right shall take the necessary measures to protect workingmen against dismissal due to exercising that right and ensurethat, at the end of such leave, they shall be entitled to return totheir jobs or to equivalent posts on terms and conditions which
are no less favourable to them.This Directive shall also be without prejudice to the provisions
of Council Directive 96/34/EC of 3 June 1996 on the frame-work agreement on parental leave concluded by UNICE, CEEPand the ETUC and of Council Directive 92/85/EEC of19 October 1992 on the introduction of measures to encour-age improvements in the safety and health at work of pregnantworkers and workers who have recently given birth or arebreastfeeding (tenth individual Directive within the meaning ofArticle16(1) of Directive 89/391/EEC). It is also without preju-dice to the right of Member States to recognise a distinct rightto paternity leave. Those Member States which recognise sucha right shall take the necessary measures to protect workingmen against dismissal due to exercising that right and ensurethat, at the end of such leave, they shall be entitled to return totheir jobs or to equivalent posts on terms and conditions which
are no less favourable to them, and to benefit from any
improvement in working conditions to which they wouldhavebeen entitled duringtheir absence.
Any unequal treatment of a woman related to pregnancy or
maternity shall constitute discrimination within the meaningofthisDirective.
Amendment 8
ARTICLE 1, POINT 2, POINT (d)
Article 2, paragraph 4 (Directive 76/207/EEC)
(d) Paragraph4 shall be replaced bythefollowing: (d) Paragraph4 shall be deleted.
2a. The followingArticle2ashallbeinserted:
Article2a
4.Member States may maintain or adopt measures with
in the meaning of Article141(4) of the Treaty with a viewto ensuring full equality in practice between men andwomen.Member States may maintain or adopt positive
measures withinthe meaning of Article141(4) of the
Treaty with a view to ensuring full equality in practicebetween men and women. Positive measures shall
provide for specific advantages in order to make iteasier for the under-represented sex to pursue a
vocational activity, or to prevent or compensate for
disadvantagesinprofessionalcareers.
Amendment 9
ARTICLE 1, POINT 3
Article 3, paragraph 2, point (b) (Directive 76/207/EEC)
(b) any provisions contrary to the principle of equal treatment
which are included in contracts or collective agreements,internal rules of undertakings or rules governing the inde-pendent occupations and professions and workers’ andemployers’ organisations are, or maybe, declared null and
voidorareamended .(b) any provisions contrary to the principle of equal treatment
which are included in contracts or collective agreements,internal rules of undertakings or rules governing the inde-pendent occupations and professions and workers’ andemployers’ organisations shallbe declared null and void.C112E/172 EN 9.5.2002 Official Journal of the European Communities
Wednesday 24 October 2001
COUNCIL
COMMON POSITIONAMENDMENTS
BY PARLIAMENT
Amendment 10
ARTICLE 1, POINT 5
Article 6, paragraph 2 (Directive 76/207/EEC)
2. Member States shall introduce into their national legal
systems such measures as are necessary to ensure a real and
effectivecompensation or reparation astheMemberStatesso
determine for the loss and damage sustained by a person
injured as a result of discrimination contrary to Article3, in a
waywhichisdissuasive and proportionate to the damage suf-
fered.2. Member States shall introduce into their national legal
systems such measures as are necessary to ensure effective,
proportionate anddissuasivesanctionsin caseof breaches ofthe obligations under this Directive. Compensation or repar-
ation for the loss and damage sustained by a person injured asa result ofunequal treatment contrary tothis Directive shall
be real, effective and proportionate to the damage suffered,
andmaynotberestrictedbythefixingofapriorupperlimit .
Amendment 11
ARTICLE 1, POINT 5
Article 6, paragraph 3 (Directive 76/207/EEC)
3. Member States shall ensure that associations, organi-
sations or other legal entities which have , in accordance with
thecriterialaiddownbytheirnationallaw, a legitimate inter-
est in ensuring thatthe provisions of this Directive are com-
plied with, may engage, either on behalf or in support of the
complainants, with hisor her approval, in any judicial and/or
administrative procedure provided for the enforcement of obli-gations under this Directive .3. Member States shall ensure that associations, organi-
sations or other legal entities which have a legitimate interestin ensuringcompliance with the provisions of this Directive:
(a)may engage, either on behalf or in support of the com-
plainant(s), with her , hisortheirapproval, in any judicial
and/or administrative procedure provided for the enforce-ment of obligations under this Directive,
(b) may, where national law so permits, bring a collective
action, in any judicial and/or administrative procedure,ontheir owninitiative andasidefrom theparticular cir-cumstances of an individual case, in order to determinewhether or not the principle of equal treatment for menandwomenisapplied.
Amendment 12
ARTICLE 1, POINT 6
Article 7 (Directive 76/207/EEC)
Member States shall introduce into their national legal systems
such measures as are necessary to protect employees againstdismissal or other adverse treatment by the employer as a reac-
tion to a complaint within the undertaking or to any legal pro-
ceedings aimed at enforcing compliance with the principle ofequal treatment.Member States shall introduce into their national legal systems
such measures as are necessary to protect employees and
workers’ representatives against dismissal or other adverse
treatment by the employer as a reaction to a complaint within
the undertaking or to any legal proceeding aimed at enforcingcompliance with the principle of equal treatment.
Amendment 13
ARTICLE 1, POINT 7
Article 8a, point 1 and point 2, introduction and point (a) (Directive 76/207/EEC)
1. Member States shall designate a body or bodies for the
promotion of equal treatment of all persons without discrimi-nation on the grounds of sex. These bodies may form part of1. Member States shall designate a body or bodies for the
promotion,monitoring and follow-up of the principle of
equal treatment of all persons without discrimination on the9.5.2002 EN C112E/173 Official Journal of the European Communities
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COUNCIL
COMMON POSITIONAMENDMENTS
BY PARLIAMENT
agencies charged at national level with the defence of human
rights or the safeguard of individuals’ rights.grounds of sex. These bodies may form part of agencies
charged at national level with the defence of human rights orthe safeguard of individuals’ rights. They must have the fund-
ing and human resources necessary to accomplish their task.
The scope of these bodies shall cover all Community law inthefield ofequaltreatment for menandwomen.
2. Member States shall ensure that the competences of these
bodies include:2. Member States shall ensure that the competences of these
bodies include:
(a) without prejudice to the right of victims and of associ-
ations, organisations or other legal entities referred to inArticle6(3),providing independent assistance to victims
ofdiscriminationinpursuingtheir complaints about dis-
crimination;(a) without prejudice to the right of victims and of associ-
ations, organisations or other legal entities referred to inArticle6(3),receiving, examining and pursuing com-
plaints from individuals, groups of individuals andorganisations about discrimination;
Amendment 14
ARTICLE 1, POINT 7
Article 8b, paragraphs 2a and 2b (new) (Directive 76/207/EEC)
2a. Member States shall take all necessary measures to
ensure that employers promote equal treatment for men andwomenintheworkplace inaplannedandsystematic way.
2b. Tothisend,Member Statesshallencourageemployers
to provide annually appropriate information to workers and/or their representatives about equal treatment for men and
women in the undertaking. Such information shall include
statistics on proportions of men and women at differentlevels of the organisation and possible measures to improvethesituationincooperation withworkers’ representatives.
Amendment 15
ARTICLE 2, POINT 3
3. Without prejudice to paragraph2, Member States shall
communicate to the Commission, every fiveyears, the texts of
laws, regulations and administrative provisions of any measuresadopted pursuant to Article141(4) of the Treaty .On the basis
of that information, the Commission will adopt and publisheveryfiveyears a report establishing a comparative assessment
of anysuchmeasures.3. Without prejudice to paragraph2, Member States shall
communicate to the Commission, every twoyears, the texts of
laws, regulations and administrative provisions of any measuresadopted pursuant Article141(4) of the Treaty, as well as
reports on these positive measures andtheir implementation .
On the basis of that information, the Commission will adoptand publish every twoyears a report establishing a com-
parative assessment of any measures in the light of Declar-
ation No 28 annexed to the Final Act of the Treaty ofAmsterdam .C112E/174 EN 9.5.2002 Official Journal of the European Communities
Wednesday 24 October 2001
COUNCIL
COMMON POSITIONAMENDMENTS
BY PARLIAMENT