Proposal for a Council Directive amending Directive 76/207/EEC on the implementation of the principle of equal treatment for men and women as regards access to employment, vocational training and promotion, and working conditions

(96/C 179/07)

(Text with EEA relevance)

COM(96) 93 final - 96/0095(CNS)

(Submitted by the Commission on 2 May 1996)

THE COUNCIL OF THE EUROPEAN UNION,

Having regard to the Treaty establishing the European Community, and in particular Article 235 thereof,

Having regard to the proposal from the Commission,

Having regard to the opinion of the European Parliament,

Having regard to the opinion of the Economic and Social Committee,

Whereas Article 2 (4) of Council Directive 76/207/EEC (1) states that 'this Directive shall be without prejudice to measures to promote equal opportunity for men and women, in particular by removing existing inequalities which affect women's opportunities in the areas referred to in Article 1 (1)`,

Whereas the Member States have undertaken various forms of positive action in order to achieve the implementation of the principle of equal treatment for men and women in respect of access to employment and vocational training and promotion, as well as in respect of working conditions;

Whereas in the light of the case-law of the Court of Justice of the European Communities, notably in its judgment of 17 October 1995 in Case C-450/93 (Kalanke v. Freie Hansestadt Bremen) (2) concerning Article 2 (4) of Directive 76/207/EEC, positive action measures may favour the access of the under-represented sex to employment, appointment and promotion to particular posts, including the giving of preference to the under-represented sex, provided that any system providing for such preference allows account to be taken of the particular circumstances in a given case;

Whereas it is appropriate to clarify Article 2 (4) of Directive 76/207/EEC in a manner consistent with the case-law;

Whereas positive action measures should be capable of benefiting members of whichever sex is under-represented in a given sector or level of employment;

Whereas the Treaty provides no powers other than those in Article 235 for the adoption of this Directive,

HAS ADOPTED THIS DIRECTIVE:

Article 1

Article 2 (4) of Directive 76/207/EEC is replaced by the following:

'4. This Directive shall be without prejudice to measures to promote equal opportunity for men and women, in particular by removing existing inequalities which affect the opportunities of the under-represented sex in the areas referred to in Article 1 (1). Possible measures shall include the giving of preference, as regards access to employment or promotion, to a member of the under-represented sex, provided that such measures do not preclude the assessment of the particular circumstances of an individual case.`

Article 2

Member States shall bring into force the laws, regulations and administrative provisions necessary to comply with this Directive by 1 December 1998 at the latest or will ensure by that date at the latest that management and labour have introduced the necessary measures by agreement, the Member States being required to take any necessary measure enabling them at any time to be in a position to guarantee the results imposed by this Directive. They shall immediately inform the Commission thereof.

When Member States adopt these provisions, these shall contain a reference to this Directive or shall be accompanied by such reference at the time of their official publication. The procedure for such reference shall be adopted by Member States.

Article 3

This Directive shall enter into force on the 20th day following its publication in the Official Journal of the European Communities.

Article 4

This Directive is addressed to the Member States.

(1) OJ No L 39, 14. 2. 1976, p. 40.

(2) [1995] ECR I, p. 3051.