EN Official Journal of the European Union C 241/41

Opinion of the European Economic and Social Committee on the ‘Proposal for a Council Directive implementing the principle of equal treatment between women and men in the access to and supply of goods and services’

(COM(2003) 657 final – 2003/0265 (CNS))

(2004/C 241/13)

On 31 March 2004 the European Economic and Social Committee decided to draw up an own-initiative opinion, under Article 29(2) of its Rules of Procedure, on the ‘Proposal for a Council Directive implementing the principle of equal treatment between women and men in the access to and supply of goods and services’.

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 May 2004. The rapporteur was Mrs Carroll.

At its 409th plenary session of 2/3 June 2004 (meeting of 3 June 2004), the European Economic and Social Committee adopted the following opinion by 120 votes to 49 with 15 abstentions:

1. Legal basis, content and scope of the proposal

1.1 The Commission's proposal is based on Article 13(1) of the Treaty establishing the European Community, which has already been the basis for the Directives combating discrimination in employment or occupation on grounds of religion or belief, disability, age or sexual orientation (1) and, in relation to both employment and occupation and access to and the supply of goods and services, on grounds of racial or ethnic origin (2).

1.2 The proposed Directive lays down a framework for combating discrimination based on sex in access to and the supply of goods and services, with a view to putting into effect in the Member States the principle of equal treatment between men and women. It has no retrospective effect.

1.2.1 Direct and indirect discrimination based on sex are prohibited, including less favourable treatment of women for reasons of pregnancy and maternity. Harassment and sexual harassment, as defined in the proposal, are deemed to be discrimination on grounds of sex and, therefore, prohibited. A person's rejection of, or submission to, such conduct may not be used as a basis for a decision affecting that person. Incitement to discriminate is also deemed to be discrimination within the meaning of the Directive.

1.3 The scope of the proposal is wide, although there are certain significant limitations. Broadly it covers access to and supply of goods and services available to the public, including housing. It covers both the public and private sectors, including public bodies. Transactions of a purely private nature are excluded, for example the renting of a holiday home to a family member or the letting of a room in a private house.

1.3.1 The Commission gives examples of goods and services available to the public: — access to premises into which the public are permitted to enter; — all types of housing, including rented and hotel accommodation; — services such as banking, insurance and other financial services; — transport; — the services of any profession or trade (3).

1.3.2 The range of services involved is wide. Important areas include pensions, life and health insurance, general insurance and access to finance and housing.

1.3.3 The use of sex as a factor in the calculation of premiums and benefits for the purpose of insurance and related financial services will be prohibited from the date on which the Directive comes into force. Member States are permitted, however, to defer implementation of this provision for up to a further six years. If they do so, they must immediately inform the Commission and are required to compile, publish and regularly update comprehensive tables on the mortality and life expectancy of women and men.

1.4 There are certain exclusions. The proposed Directive would not preclude differences related to goods or services for which men and women are not in a comparable situation because goods or services are intended exclusively or primarily for the members of one sex or to skills which are practised differently for each sex. Examples include single-sex sessions in a swimming pool and private membership clubs.

1.5 Specifically excluded from the scope of the Directive are education and the content of media and advertising, in particular advertising and television advertising, as defined in Article 1(b) of Council Directive 89/552/EEC.

1.6 Positive action is permitted under the Directive.

1.7 The Directive contains provisions on minimum rights and remedies, enforcement and monitoring common to the two directives referred to in paragraph 1.1.

2. General comments

2.1 The Committee would stress the importance of the principle of banning sex discrimination in relation to men's and women's access to and supply of goods and services.

2.2 The Committee welcomes the consistency of wording and definition in this proposal with that in the two previous Directives and that on the burden of proof in equality cases.

2.2.1 The Committee is concerned that the definition of ‘services’ is contained only in Article 10 of the Preamble to the draft Directive. To avoid ambiguity, given the wide range of public and other services available to the public (for example, those provided by NGOs), the term ‘services’ should be defined clearly in the text. The Committee favours a broad definition.

2.3 The exclusion of education from the scope of the Directive is regrettable. However, it is recognised that there may be problems of Community competence in this area. Education, however, is a key factor in equality between women and men and can result in boys and girls following traditional career paths, thus affecting their future in a significant way. There are concerns in some Member States concerning limitations on choice and lack of adequate guidance in education, which have ongoing and significant implications both for the individuals concerned, for attainment of social inclusion targets and for the competitiveness of the EU itself.

2.3.1 The Commission has stated that only privately-provided education would come within the scope of services, if this sector was not excluded from the Directive. This could have resulted in the application of different standards in the implementation of the principle of equal treatment.

2.3.2 The Member States have already begun to take action in the area of education under the Lisbon Agenda. The Committee, therefore, urges the Commission to do whatever is within its powers, to encourage the Member States to ensure that there is equality of access to and provision of educational opportunities for both boys and girls.

2.3.3 The existing equal treatment Directive covers access to vocational training, including third-level education of a vocational nature. This is, however, insufficient. The means of benefiting from third-level education, whether in university or a vocational institution, are acquired at primary and secondary level.

2.4 The Committee understands that the proposal only covers the media and advertising in their role as service industries. It accepts that the current proposal is not the correct vehicle for action on the content of media and advertising. However, as the media and advertising exert powerful influence on public attitudes and opinions, they cannot be ignored in the EU's efforts to remove discrimination from employment and everyday life. There is, however, a fine line between appropriate action and censorship. The Commission should, therefore, continue its consultations on these issues, bearing these factors in mind and take appropriate action, within a reasonable timeframe. The Committee looks forward to taking its part in this process.

2.5 The Committee welcomes the fact that men and women would have equal access to finance — particularly important for them both, whether as entrepreneurs or as persons seeking housing finance.

2.6 Since education, the media and advertising are excluded from the Directive, the Committee feels that non-discrimination on the basis of gender in access to insurance is the most delicate aspect of the proposal. No new discriminatory criteria should be created in any area covered by the proposal, including insurance.

2.6.1 The Committee has serious doubts about the claim that unisex rates — which are actually applied in certain countries of the Union — always increase insurance premiums in general and that spreading risks more evenly between men and women tends to push up insurance costs. It is unwise and inconsistent with the purpose of the proposal to allow Member States to defer implementation of equal treatment for six years in the general context of free provision of services and freedom of establishment in the field of insurance.

2.6.2 On the matter of universal access to rights to insurance complementing social protection, the Committee calls for the abolition of direct and indirect discrimination. This request is especially urgent given that the second and third pillars of social protection (supplementary insurance) are currently the fastest growing components of social protection in the Union. In this regard the Committee would refer to the proposals set out in its Opinion on Supplementary health insurance (4).

3. Specific comments

3.1 The Committee supports equalisation of access to financial services, many of which are essential to everyday life and the equalisation of benefits and premiums for men and women. However, the Directive covers a wide range of financial services that are very different in nature — e.g., motor insurance, health and disability insurance and pensions and annuities. This raises complex and difficult issues, that vary from one Member State to another.

3.1.1 It must, however, be recognised that there will be some adverse as well as positive effects in the equalisation of benefits and premiums for consumers of these services, the effects for men and women varying, depending on the financial service involved. In the case of motor insurance, ‘no-claim’ bonuses for individuals arise only after several years of insurance experience. There is a distinct possibility that, in order to cover uncertainties arising, insurance costs could rise for everyone.

3.1.2 The European Court of Justice in the Colorell judgement (5) accepted that the use of actuarial statistics based on sex was valid for the purposes of calculation of pension contributions and benefits. It required, however, the contributions made by employees and the benefits received by them to be equal. Higher contributions on the part of the employer were held to be valid. The Court has in effect recognised that equalisation of benefit costs more. In occupational pension schemes, the employer paid the higher contribution. In private pension and insurance provision, there is no employer to absorb any higher premium or contribution: this will fall on the consumers of the service. However, this does not only apply to pensions where men have to pay for female longevity, but to all types of insurance. Women may have to pay, for example, for men's increased accident risk, etc.

3.1.3 The Commission in its Extended Impact Assessment recognises that there will be specific costs for insurance providers, that will ultimately be passed on to the consumers but considers that this will end once the adjustment period has passed. The EESC takes the same view.

3.1.4 The Committee would also refer here to the Treaty principle on equal treatment for women and men. If this principle is used as a basis, the insurance industry must — over a certain period of time, naturally — amend its calculation systems so that sex is no longer a factor in calculating car insurance premiums, for example. Since accident frequency and longevity are clearly not affected by calculation methods, consumers' overall premium payments should, in theory, remain unchanged

3.1.5 The Committee considers that more specific assessment (including independent simulations on effects of alternative bases) of the insurance/pensions industry are required in order to assess the long-term impact of the proposals. The Committee believes it is important to monitor events — particularly in the insurance industry — after the directive has entered into force. The overall aim of the directive must be to protect people's right not to suffer discrimination.

3.2 In relation to the provision of housing, the Committee is of the opinion that the Directive should not apply to private arrangements, i.e., lease, sale or donation, made between family members.

3.3 The Committee is of the opinion that exclusions should be clearly defined. They must not jeopardise equality between women and men.

3.4 The Committee welcomes Article 5, which permits positive action. This provision should not, however, endanger vital services provided both by the public service and by NGOs for men and women, such as single-sex housing for disadvantaged persons and shelters for women who have been subject to domestic or other forms of violence.

3.5 The Committee approves the provision on dialogue with non-governmental organisations. This provision must, however, guarantee regular contact with organised civil society.

3.6 Information and publicity of the Directive when adopted will be vital to ensure that consumers are fully aware of their rights and that providers of goods and services understand their obligations under it.

Brussels, 3 June 2004. The President of the European Economic and Social Committee Roger BRIESCH

(1) Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation.

(2) Council Directive 2000/43/EC of 29 June 2000 implementing the principle of equal treatment between persons irrespective of racial or ethnic origin.

(3) COM(2003) 657 final, Explanatory memorandum.

(4) OJ C 204, 18.7.2000, p. 51 (rapporteur: Jean-Michel Bloch-Lainé).

(5) Coloroll Pension Trustees Ltd v Russell & Others C-200/91, 28 September 1994.