No C 337/58 Official Journal of the European Communities 31. 12. 88 
the governments must take resolute action to improve 
the functioning of the international monetary system 
if they wish to realize the aspirations underlying the 
Uruguay Round. There would be no point in seeking 
to reduce agricultural support if a simple change in 
the interest rate, magnified in its repercussions on the 
Done at Brussels, 27 October 1988. 
1. General comments 
1.1. The Committee endorses the Commission pro­
posal subject to the following comments. 
1.2. The Committee is pleased that the Commission 
was prompted to issue this proposal inter alia by the 
arguments expressed by the ESC Opinion on equal 
opportunities for women, medium-term Community 
programme, 1986-1990, which was adopted unanim­
ously on 24 April 1986. 
1.3. Basically, the reasons put forward by the Com­
mittee in April 1986 are still valid: 
a) ensuring the more effective application of existing 
Community provisions; 
b) contributing to redressing the continuing infringe­
ment of equality of rights; 
c) remedying the imbalance between the number of 
legitimate cases brought before the courts and the 
real incidence of discrimination which is very much 
higher; 
(•) OJ No C 176, 5. 7. 1988, p. 5. various currencies, would make it possible to provide 
new support at any time. 
Balanced national budgets and monetary and financial 
cooperation are preconditions for the success of the 
Uruguay Round, particularly in the agricultural sector. 
The Chairman 
of the Economic and Social Committee 
Alberto MASPRONE 
d) encouraging and stimulating the implementation of 
good employment practices and modern personnel 
techniques; 
e) the legal application of the Directive should provide 
Member States with room for manoeuvre and 
enough flexibility to forestall possible abuses by 
interest groups. 
1.4. Equal opportunities for women should be one 
of the main objectives of a People's Europe. To achieve 
this end, an effort will be required in all social spheres, 
including above all, the promotion of suitable employ­
ment and educational policies. 
While legislation is important, it plays a more decisive 
role in amending individual rather than general situ­
ations. 
1.5. Current Community legislation on equality 
between men and women as laid down in the following 
must be implemented more effectively. 
— Article 119 of the EEC Treaty, 
— Council Directive 75/117/EEC: Equal pay for men 
and women, Opinion on the proposal for a Council Directive on the burden of proof in the area of equal 
pay and equal treatment for women and men (J) 
(88/C 337/19) 
On 16 June 1988, the Council decided to consult the Economic and Social Committee, 
under Article 100 of the Treaty establishing the European Economic Community, on the 
abovementioned 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 October 1988. 
The rapporteur was Mr Gomez Martinez. 
At its 259th plenary session (meeting of 27 October 1988), the Economic and Social Committee 
adopted the following Opinion by 72 votes to 10, with 5 abstentions. 
31. 12. 88 Official Journal of the European Communities No C 337/59 
— Council Directive 76/207/EEC: Access to employ­
ment, vocational training and promotion, and 
working conditions, 
— Council Directive 79/7/EEC: Social security, 
— Council Directive 86/378/EEC: Occupational social 
security schemes (not yet in force), 
— Council Directive 86/613/EEC: The exercise of an 
activity, including agriculture, in a self-employed 
capacity, and protection during pregnancy and 
motherhood. 
1.6. The Directive is to apply to all Community 
measures on equality. The Committee stresses the need 
to maintain the exception in respect of criminal pro­
cedures, where modification of the burden of proof 
could impose criminal liability on individuals. 
1.7. In view of the different stages of legal proceed­
ings and the differences between legal institutions, the 
Directive should define in each case who the complain­
ant is and who the respondent. 
1.8. In the interests of a flexible and fair implemen­
tation of the Directive and its Articles, the Committee 
believes that the last sentence of the first paragraph of 
Article 3 and the expression 'if not rebutted' should be 
deleted. 
The Commission's comments on Article 3 of the draft 
Directive indicate that the complainant has to establish 
a rebuttable presumption (presumption is iuris tantwn), 
asserting that less favourable treatment has occurred 
on grounds of sex and providing evidence enabling the 
judge to establish whether discrimination has taken 
place. The iuris tantwn presumption of discrimination 
is established at this stage and before the respondent is 
required to rebut the presumption; the burden of proof 
is then transferred to the respondent who must prove 
that there were unbiased, legitimate grounds for 
unequal treatment. It is the responsibility of the court 
or competent authority to decide whether this proof is 
sufficient or not to refute the presumption of discrimi­
nation. 
1.9. The Committee considers that the presumption 
of discrimination must be based on facts which give 
grounds for supposing that direct or indirect discrimi­
nation has occurred. This will enable the Directive to 
be applied flexibly and effectively, avoiding distortions 
or improper use which would weaken it in the medium 
term. 
1.10. The Committee welcomes the concept of dis­
cretion to protect confidential information in the pos­
session of one party which could, if disclosed, substan­
tially damage the other party for purposes other than 
the litigation concerned. The protection should be extended to both parties 
jointly and without distinction, and to any other parties 
involved. 
1.11. The Committee recommends that the three-
yearly progress report on implementation of the Direc­
tive should be accompanied by an assessment of the 
effectiveness or otherwise of the practice of Member 
States who either now or in the future totally reserve 
the burden of proof in Community equality legislation. 
1.12. Indirect discrimination is a relatively new area 
of jurisprudence. It covers situations which, although 
apparently neutral, have a disproportionate impact on 
the members of one sex, leading to unjustified (albeit 
unintentional) unequal treatment. 
1.13. Given the Committee's stated interest and con­
structive views on the subject, referred to in the Com­
mission Explanatory Memorandum, the ESC feels that 
it should also be consulted on progress made in the 
implementation of the Directive. 
2. Specific comments 
2.1. A new Article is required to define the concepts 
of complainant and respondent in line with the general 
comment under 1.7. 
2.2. Article 3 (1) 
The words 'shall ensure that' in the original English 
version have to been accurately translated in some 
versions (e.g. Spanish). Failure to correct this could 
create legal problems. 
2.3. Article 3 
The last sentence of Article 3.1 and the phrase 'if not 
rebutted' in Article 3.2 should be deleted, in line with 
the general comment under 1.8. 
2.4. Article 5 (1) 
The word 'disproportionately' should be deleted. 
Indirect discrimination cannot be directly ascribed to 
identifiable circumstances or facts. It would be even 
more difficult if the adverse effect had to be of a 
specified magnitude ('disproportionate'). Furthermore 
the current wording implies that a 'proportionate' 
adverse effect is permissible, and this is wrong. 
No C 337/60 Official Journal of the European Communities 31. 12. 88 
2.5. Article 5 (2) 
The entire paragraph should be replaced by the fol­
lowing: 
'In determining whether the principle of equality 
has been infringed in any individual case, indirect 
discrimination may be deemed to have occurred 
even if this was not the respondent's intention.' 
This would clarify the respondent's rights. 
Done at Brussels, 27 October 1988. 
I. General comments 
1. The Committee takes the view that the time has 
come for both national and Community educational 
policies to face up to the challenges confronting the 
educational system and the people of Europe, as the 
Member States grow even closer together, This is par­
ticularly relevant against the background of the com­
pletion of the Internal Market and the accompanying 
changes designed to create a citizens' Europe and opti­
mum economic and social conditions. 
The Commission's initiative is to be particularly wel­
comed since no guidelines for the educational and cul­
tural sectors can be derived from the Treaty of Rome. 
The Commission has correctly chosen to present its 
document in the form of a Communication. 2.6. Article 6 
Add at the end: '... employment agencies, training 
establishement, etc.'. 
2.7. Article 8 (2) 
After the words 'European Parliament' insert: '...and 
the Economic and Social Committee'. 
The Chairman 
of the Economic and Social Committee 
Alberto MASPRONE 
2. The Committee also believes that greater conti­
nuity is needed in cooperation on educational policy, 
given its increasing importance for furthering and flesh­
ing out the process of European unification. Medium-
term priorities for subjects to be dealt with and action 
to be taken must be established to this end. 
3. The Committee therefore considers the Communi­
cation to be an important document on three counts: 
3.1. Firstly, it provides a further stimulus to reflect 
on certain basic objectives for the education of the 
rising generation with a view to furthering the cultural 
and economic integration of the Member States, with 
the opportunities and challenges which this entails. 
An intensive information exchange with the aim of 
establishing a broad consensus between those respon­
sible for educational policy at national and Community Opinion on the education in the European Community, 
medium-term perspectives, 1988-1992 
(88/C 337/20) 
On 25 May 1988, the Commission decided to consult the Economic and Social Committee, 
under Article 198 of the Treaty establishing the European Economic Community, on edu­
cation in the European Community, medium-term perspectives, 1988-1992. 
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 October 1988. 
The rapporteur was Mr Nierhaus. 
At its 259th plenary session (meeting of 27 October 1988) the Economic and Social Committee 
unanimously adopted the following Opinion.