Opinion of the Economic and Social Committee on the 'Proposal for a Council Directive on the burden of proof in cases of discrimination based on sex` (97/C 133/12)

On 17 October 1996, the Council decided to consult the Economic and Social Committee, under Article 198 of the Treaty establishing the European Community and Article 2(2) of the Protocol (No 14) on social policy, on the above-mentioned proposal.

The Section for Social, Family, Educational and Cultural Affairs, which was responsible for preparing the Committee's work on the subject, adopted its Opinion on 13 February 1997. The rapporteur was Mrs Sigmund.

At its 343rd plenary session (meeting of 26 February 1997), the Economic and Social Committee adopted the following opinion by 103 votes to 13, with 26 abstentions.

1. Introduction

1.1. For twenty years now, the European Community has played an important role in promoting equal rights for women in society. Acting under Article 119 of the Treaty, which stipulates that men and women should receive equal pay for equal work, the Community first of all enshrined in law the principle of equality at work and in wide-ranging areas of social security. In addition, the Council has adopted six directives, two recommendations and ten resolutions on equal opportunities and equal treatment regardless of sex.

1.2. Despite this comprehensive legal framework, however, equal treatment and equal opportunities are still not guaranteed fully. The fundamental guarantees enshrined in Community legislation are all too often undermined by practical administrative problems encountered by the victims of discrimination, who are, moreover, frequently unaware of their rights.

1.3. As early as 25 May 1988, the Commission tabled a draft Council Directive on the burden of proof in the area of equal pay and equal treatment for women and men ().

The ESC opinion of 27 October 1988 endorsed the Commission's draft and highlighted the ongoing relevance of calls for equal opportunities for women which had already been voiced in the 1986-1990 action programme published on 24 April 1986.

The draft directive was discussed on a number of occasions in the Council between 1988 and 1994 and required several revisions before securing more extensive support. Finally, on 23 November 1993, eleven of the then twelve Member States meeting in Council, reached agreement on a significantly modified version of the draft directive; this directive, however, failed to elicit the unanimity required under Articles 100 and 235 of the EEC Treaty.

In January 1994, the European Parliament adopted a resolution on the White Paper on European social policy, calling on the Commission to submit a new draft directive. On 5 July 1995, the Commission gave its approval for the social partners to be consulted on a text outlining the Commission's initiatives and proposals on the burden of proof.

Two hearings were held and the unanimous view was that the correct application of Community legislation on equal opportunities for men and women was extremely important.

However, the social partners expressed no wish to see an agreement concluded under Article 4 of the agreement on social policy.

All this led to the proposal under discussion, i.e. the draft Council Directive on the burden of proof in cases of discrimination based on sex () which the Commission submitted on 17 July 1996.

2. General comments

2.1. The Committee broadly welcomes the Commission initiative. It also shares the Commission's view that Community action is needed to uphold and enforce the principle of equal treatment.

2.2. The ESC feels that gender equality, as a basic principle of justice, must become a reality in practice. It therefore backs all measures which seek to remove the difficulties faced by plaintiffs.

2.3. The Committee does not, however, agree with the Commission (in its statement in the explanatory memorandum) that the proposed arrangement will not impose any administrative constraints on the creation, maintenance and development of SMEs.

In many cases, claims are only raised long after the alleged incident took place. In particular, small and medium-sized industrial and commercial establishments, craftsmen, members of the professions and farmers could, under certain circumstances, find it difficult, or well-nigh impossible, to deliver the burden of proof. The limited scale of their activities means it is not essential to keep records of organizational mechanisms or work cycles. Conversely, an obligation to keep documentation would, in certain circumstances, constitute an unjustifiable increase in red tape and an unacceptable additional cost.

Despite these misgivings, the Committee would stress that the directive, which it broadly backs, also applies wholly and unreservedly to SMEs.

Moreover, the Committee trusts that the Commission will take appropriate action to ensure that this fact is taken into consideration in its programmes designed to establish, maintain and promote SMEs. For reasons of legal certainty, such considerations can obviously not be taken into account in applying the future directive.

2.4. The directive is designed to apply to all situations covered by existing Community instruments on gender-specific discrimination, except where the application of this directive is expressly excluded. Unless Member States have decided otherwise, the directive will not apply to criminal proceedings.

2.5. The directive deals with the following three topics:

- definition of indirect discrimination (Article 2);

- burden of proof (Article 4);

- procedures (Article 5).

3. Specific comments

3.1. Indirect discrimination (Article 2)

3.1.1. Up to now, Community law has come up with no definition of the term 'indirect discrimination`, and the relevant directives have merely used the term without defining it. As things stand, only Ireland, Italy and the United Kingdom have defined the term in law.

3.1.2. Over the past few years, however, the European Court of Justice has shaped a largely uniform and clear legal definition, which states that indirect discrimination is deemed to obtain when an apparently neutral criterion disproportionately disadvantages the members of one sex.

3.1.3. The Commission's definition follows this approach. The Committee welcomes the draft directive's definition of 'indirect discrimination` in line with the criteria laid down by the European Court of Justice, since it enhances legal security; it also highlights the term, thus giving it added weight. This definition should make it easier for national authorities to decide independently in each case whether indirect discrimination has taken place.

3.1.4. The Committee feels that the reference to marital or family status is to be understood by way of example: however, the term 'particularly` used in the directive could, under certain circumstances, be misunderstood. The Committee therefore proposes replacing 'particularly` by 'for example`.

3.2. Burden of proof (Article 4)

3.2.1. Although the Commission clearly states in the recitals to the draft directive that its intention in Article 4(1) is not to reverse the burden of proof, the actual wording of the directive does not wholly bear this out.

3.2.2. The Committee believes that various factors relating to the delivery of proof justify simplifying, clarifying and circumscribing the scope of Article 4.

A good approach here would be, on the one hand to require the employer being sued to cooperate and provide information and on the other to adopt provisions which lay down the conditions that are required to be met for the purpose of determining the proof of discrimination.

3.2.3. The Committee proposes that, to make it easier for the principle of equal treatment to be enforced in law, a clear rule must be established that, as a matter of principle, the plaintiff continues to bear the burden of proof, but that it is enough for the plaintiff to make out a credible case for his or her claim that discrimination based on sex has taken place. This means that, unlike the situation in certain Member States, the courts need not have virtually watertight proof that sex discrimination has taken place - which in practice would make it inordinately difficult to take proceedings in these cases. Rather, there need only be overwhelming probability, in the light of all the facts of the case. In other words, sex discrimination may be deemed to have occurred where there are well-founded indications that a person has been treated improperly. This removes the plaintiff's difficulty in having to supply absolute proof of discrimination before the courts.

In each case, therefore, it is up to the courts in each individual Member State acting in line with national provisions to pass judgement on the claims made.

The Economic and Social Committee feels this to be a balanced arrangement - particularly since it makes it easier for the plaintiff to furnish proof while at the same time clearly giving the defending employer the opportunity to demonstrate that there has been no discrimination on the grounds of sex.

3.2.4. The Commission recitals clearly state that there is no intention to reverse the burden of proof. The Committee feels, however, that the statements made in point 27 are not reflected in the present wording of Article 4(1).

3.2.5. To ensure the maximum possible clarity, the Committee proposes the following:

3.2.5.1. The heading of Article 4 should be amended to read:

'Proof of discrimination based on sex`

3.2.5.2. The text of Article 4 should read as follows:

' Member States shall ensure the following arrangements are complied with in accordance with their national judicial systems:

a) Where persons, who consider themselves wronged by failure to apply to them the principle of equal treatment, establish before a court or other competent authority, evidence of a fact justifying the presumption of discrimination, the burden of proof shall be transferred to the respondent who must then prove that there has been no contravention of the principle of equal treatment. The plaintiff who has established corroborated evidence of discrimination shall benefit from any doubt that might remain as to the facts of the case.

b) Where the respondent has applied a system or taken a decision lacking transparency, it is up to him or her to prove that the apparent discrimination is due to objective factors unrelated to any discrimination based on sex.

c) The plaintiff does not have to prove the existence of any fault on the part of the defendant to establish that the ban on discrimination based on sex has been infringed.`

3.3. Procedures (Article 5)

3.3.1. This article stipulates that the courts and other competent authorities may 'give such directions as are necessary for an effective investigation of any complaint relating to discrimination`. Furthermore, the parties concerned are required to provide information, albeit only under certain conditions.

3.3.2. The Committee seriously doubts whether the Community has a remit to legislate in this area of law, i.e. asks whether the Member States themselves should not be left to decide what arrangements they make under their own national laws (subsidiarity principle). The Committee would urge the Commission to study this matter thoroughly.

If such arrangements are, in fact, inadmissible at European level, the Committee proposes the deletion of Article 5.

Brussels, 26 February 1997.

The President of the Economic and Social Committee

Tom JENKINS

() OJ No C 176, 5. 7. 1988.

() COM(96) 340 final.

APPENDIX to the opinion of the Economic and Social Committee

The following amendments attracted more than 25 % of the votes cast, but were rejected during the course of the deliberations:

Point 3.3.2

Replace both paragraphs of this point by the following:

'The Committee considers it necessary for such measures to be taken so that the directive can be applied in practice. However, it would point out that Article 5 states that the Member States shall guarantee certain procedures but does not specify precisely how this is to be done.`

Reason

Without Article 5 the directive would lose its teeth. Since Article 5 does not regulate how the Member States are to shape their procedures in such court proceedings, there is no need to question the rules on the basis of the subsidiarity principle.

Result of the vote

For: 45, against: 77, abstentions: 9.