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

(2001/C 123/21)

On 25 July 2000 the Council decided to consult the Economic and Social Committee, under Article 262 of the Treaty establishing the European Community, on the above-mentionned proposal.

The Section for Employment, Social Affairs and Citizenship, which was responsible for preparing the Committee's work on the subject, adopted its opinion on 5 December 2000. The rapporteur was Ms Wahrolin.

At its 378th plenary session (meeting of 25 January 2001) the Economic and Social Committee adopted the following opinion by 68 votes to 11, with six abstentions.

1. Introduction

1.1. In presenting its proposal amending Council Directive 76/207/EEC(1) the Commission's purpose is to promote equal participation of women and men in the labour market and to remove further obstacles to women in employment.

1.2. The Commission's proposal is based on Article 141(3) of the Treaty, which empowers the Community to adopt measures to ensure the application of equal treatment of men and women in matters of employment and occupation, and on Treaty Article 141(4), which reiterates that Member States have a duty to adopt measures to ensure that this principle is implemented. The proposal seeks to define terms, reinforce protection of individuals lodging complaints, clarify the scope for exemption from certain principles, boost positive action measures to promote equality and safeguard special protection for women on grounds of pregnancy and maternity.

1.3. The proposal spells out the Member States' obligations in practical terms and takes account of Court of Justice case-law over the past 25 years.

1.4. For the first time, clear-cut definitions are provided in this proposal of sexual harassment and discrimination based on sex in the workplace; these definitions are based on, and consistent with, the definitions to be found in the proposed directives based on Article 13, dealing with harassment as discrimination based on other grounds as well as sex. In addition, the proposal introduces protection for employees lodging complaints of discrimination, even when the employment relationship has ended, and lays down guidelines for the independent national bodies to promote the principle of equal treatment. It clarifies the Member States' powers to provide for exemptions from the principle of equal access to employment, while requiring Member States to substantiate bans on employing one or other sex in special forms of work. The proposal specifies and guarantees special protection for women on grounds of pregnancy and maternity, including their right to return to the same workplace after maternity leave. Lastly, Treaty Article 141(4) is incorporated, whereby Member States are entitled to adopt positive action measures to promote full equality for women and men at work.

1.5. The proposal also highlights the role of the social partners in implementing the principle of equal treatment.

2. General comments

2.1. The Economic and Social Committee broadly welcomes the changes proposed by the Commission and would particularly stress how important it is that, for the first time, the definition of sexual harassment is now being given directive form and that the definition per se clearly states that discrimination based on sex at the work place is the issue. This makes it clear that it is always the employer's responsibility to prevent and deter sexual harassment in the workplace. At the same time, it is important - from a legal certainty perspective - to stress that an employer can only act on a specific case when it comes to his notice. The sexual harassment problem is a major, sensitive issue which can no longer be ignored and needs to be tackled at EU level. In addition, the Committee applauds the greater legal certainty resulting from the Directive's reference to Court of Justice case-law.

2.2. The Committee supports the thrust of the Commission's proposal, which is fully consistent with longstanding efforts and social and legal developments in the Community and the Member States. It agrees with the Commission that application of a Community legal decision is in accordance with the principles of subsidiarity and proportionality.

2.3. The Committee would welcome a proposal based on Treaty Article 13 which also includes other areas.

2.4. The Committee regrets that the Commission did not formally consult the social partners at European level, as provided for in the social chapter of the Treaty, before it presented the new draft directive.

2.5. The Committee's comments on specific articles in the Commission proposal are set out below.

3. Specific comments

Article 1

Article 1 contains all the proposed amendments to Council Directive 76/207/EEC.

3.1. First amendment: insertion of a new paragraph in Article 1

The Committee supports the Commission's proposal which adapts the Directive to Article 3 of the Treaty.

3.2. Second amendment: a new Article 1a

The Committee welcomes the Commission's proposal, which states explicitly that sexual harassment constitutes discrimination on the grounds of sex. The EU institutions have taken a number of different initiatives in recent years to prevent and combat sexual harassment at the workplace. Surveys show that sexual harassment is a widespread problem and that preventive action must be taken in the workplace, in both the individual's and the firm's interests. The European social partners have unanimously confirmed the importance of safeguarding the individual worker's integrity and dignity; however, their views differ as to which instruments can suitably be applied at European level. The Community has long taken the position that sexual harassment violates the principle of equal treatment and encroaches on the dignity of women and men in the workplace. It is highly satisfactory that now for the first time, a Directive explicitly states that sexual harassment constitutes discrimination on grounds of sex in the workplace.

The definition proposed by the Commission is based on its own code of practice(2) and is tailored to tally with the definitions based on Article 13, covering harassment on other grounds than sex. On the whole the Committee has no objections to the proposed definition but would prefer the draft text to refer to a "humiliating", rather than a "disturbing", environment, which would be fully consistent with the EU code of practice.

The Committee regrets that the Commission's proposal contains no reference to the employers' responsibility to create a working environment free from sexual harassment. The Committee believes that it is important to establish a policy of prevention in the workplace as was laid down in the 1991 code of practice, and suggests that the following wording be added to Article 1a:

"It is the employers' responsibility to create a working environment free from sexual harassment".

3.3. Third amendment: insertion of a subparagraph in Article 2(1)

The Committee welcomes the Commission's proposal to introduce a definition of the concept "indirect discrimination", but feels that the definition should be reworded to make it consistent and in line with the racial discrimination Directive and with other Directives based on Article 13 of the Treaty.

3.4. Fourth amendment: new Article 2(2)

The Committee agrees with the limited exception from the discrimination rules, based on "genuine occupational requirements". This exception should be reviewed regularly by the Member States and independent bodies so as to justify whether it should be retained or abolished.

However, the Committee would suggest that the Commission, in addition to what is stated in the directive, should also take up the matter of positive action so as to be as clear and specific as possible, regardless of the fact that this point is regulated by other texts.

3.5. Fifth amendment: addition to Article 2(3)

The Committee supports the Commission's proposal to state specifically that a woman who has given birth has the right to return to her job, or to an equivalent post, but regards the phrase "with the same working conditions" as too inflexible and rigid. In its view, a better and more elastic wording would be "under no less favourable working conditions". Working life is constantly changing and the proposed wording "with the same working conditions" will be excessively restrictive.

The right to a job and to earn a living is a key factor in ensuring equality between women and men. This is fully in line with both the EU's employment strategy and with the conclusions of the Lisbon Summit. It is quite clear that women must enter the labour market if the EU is to achieve the economic growth needed to sustain its social - and not least pension - systems. Equality is vital for productivity in Europe, where older people form an increasingly high proportion of the population. If Europe is to preserve social protection standards, women must be able to contribute to the economy through paid employment. The right to return to work under no less favourable conditions is an important factor in planning family life, and in particular combining a job with family life, besides being a natural complement to the provisions of the maternity Directive 92/85/EEC(3). The ESC calls on the Commission to undertake a review of the maternity directive 92/85/EEC, in line with the new ILO convention on Maternity (Convention 183). The ESC considers that the issue of returning to work under no less favourable conditions should also be included.

The Committee applauds the Directive's reflection of Court of Justice case-law.

3.6. Sixth amendment: new Article 2(4)

The Committee welcomes the thrust of the Commission's proposal, which implements Treaty Article 141(1) in empowering Member States to adopt positive action measures to promote equality and requiring them to report regularly on their activity. Previous ESC proposals(4) and recommendations have referred to reporting in connection with the publication of the Commission's first report on equality. The publication of regular Commission reports containing a comparative evaluation of positive action measures adopted by the Member States will help give the Member States and their populations some idea of the situation in each individual country. The structure of these reports will be of major importance. The Committee recommends that the Commission should focus on specific comparisons highlighting differences and similarities between the Member States. There is little point in describing developments at Community level unless attention is paid to implementation and compliance with the rules in the Member States, where everything actually happens.

3.7. Seventh amendment: addition of new paragraph (d) to Article 3(2)

The Committee supports the addition proposed by the Commission.

3.8. Eighth amendment: replacement of original wording of Article 6

The new wording of Article 6 introduces into the Directive two important elements of the Court's case-law regarding enforcement procedures. The Committee welcomes the Commission's proposal which helps to ensure effective protection for the individual, and the fact that the principle of equal treatment is to have the desired impact.

The Committee would, however, draw the Commission's attention to the national rules on periods of limitation applicable, for instance, to the time limit for initiating legal proceedings after cessation of employment. These must not be rendered invalid by virtue of the directive, provided that they are not incompatible with other EU legislation.

3.9. Ninth amendment, new Article 8a

The Committee supports this proposal, which reinforces the right to legal protection provided in Article 6.

The Committee is pleased to note the clear guidelines for the independent bodies to be set up in each Member State and that the Member States are left free to decide on the structure and functioning of such bodies in accordance with their legal traditions and policy choices.

However, the Committee would suggest that point 3 of the new Article 8 a) be amended in line with the wording of the directive on racial discrimination and refers to its own opinion on that subject(5).

3.10. Tenth amendment: new Article 8b

The Committee welcomes the Commission's proposal and highlights the role played by the social partners in implementing equal treatment.

The Committee points to the importance of leaving each Member State free to act on the basis of its own legal traditions and policy choices. It is important to make progress in this area. It would therefore be most helpful to require the Member States, in their reports to the Commission, specifically to record how they have proceeded in their drive, in liaison with the social partners, to implement equal treatment.

3.11. New Article 8c

The Committee supports the Commission's proposal.

4. Article 2

4.1. The Committee has no objection to the Commission's proposal but recommends that the deadline by which the Member States are to implement the laws and other provisions required for purposes of this directive should be adapted to the date of decision so as to give the Member States at least one year to adopt national measures.

5. Conclusion

One of the European Union's most vital tasks is to combat discrimination in any form.

Despite the fact that demographic patterns make it urgent for as high a percentage as possible of the population of active age to be in employment, discrimination of various kinds persists on the labour market.

The present proposal 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, opens the way for further action to implement the above principle.

Brussels, 25 January 2001.

The President

of the Economic and Social Committee

Göke Frerichs

(1) Council Directive 76/207/EEC of 9 February 1976 on the implementation of the principle of equal treatment for men and women as regards access to employment, vocational training and promotion, and working conditions OJ C 39, 14.2.1976, p. 40.

(2) European Commission 1993: Measures to combat sexual harassment; guidelines for a Commission code of practice.

(3) Council Directive 92/85/EEC of 19 October 1992 on the introduction of measures to encourage improvements in the safety and health of work of pregnant workers and workers who have recently given birth or are breastfeeding OJ L 348 of 28.11.1992.

(4) Opinion on the Commission's annual report: Equal opportunities for women and men in the European Union - 1996 OJ C 296, 29.9.1997.

(5) OJ C 204, 18.7.2000, p. 82-90.

APPENDIX

to the Opinion of the Economic and Social Committee opinion

The following amendment was defeated during the debate but secured at least one-quarter of the votes cast:

Point 3.5, Paragraph 1

The original wording of the Commission "... with the same working conditions" should be maintained in place of the proposed amendment "... with no less favourable working conditions".

Reason

Self-evident.

Result of the vote

For: 30, against: 48, abstentions: 7.