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
Date: 1996-03-27
Institutions: European Commission
Subjects: case-law (EU), gender equality, job access, promotion, sexual discrimination

COMMISSION  OF THE EUROPEAN  COMMUNITIES 

Brussels,  27.03.1996 
COM(96) 93 final 

96/0095  (CNS) 

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 

(presented by the Commission) 

EXPLANATORY  MEMORANDUM 

1. 

Introduction 

On  17 October,  1995, the European Court of Justice delivered its judgment in Case C-450/93, 
(Eckhard  Kalanke  v  Freie  Hansestadt  Bremen),  which  has  given  rise  to  a  great  deal  of 
controversy  throughout  Europe.  This  controversy  was  caused  by  the uncertainty  created  by 
the judgment  concerning  the  legitimacy  of  quotas and  other forms  of positive  action  aimed 
at increasing the numbers of  women  in  certain  sectors  or levels of  employment. 

Equal treatment between men and women at work constitutes a fundamental right, as has been 
acknowledged by the European Court of Justice in its judgment in Case 149/77, Defrenne  III. 
The  Commission  considers that, at a time when equality  of opportunity for women has been 
recognized  at the highest  level  (Essen,  Cannes  and Madrid  European  Councils) to be a task 
of  paramount  importance  -  together  with  the  fight  against  unemployment  -  it  is  crucial  to 
reaffirm  the  need  to  use,  where  appropriate,  "positive  action"  measures  to  promote  equal 
opportunities  for  women  and  men,  in  particular  by  removing  existing  factors  of  inequality 
which  affect  women's opportunities  in the  employment  area. 

The  Commission  has always  adopted  a very  favourable  attitude towards  positive  action.  In 
1984, it  put forward  a proposal  for  a recommendation  on the promotion  of positive action(1) 
which  was adopted by the Council. 

In the Kalanke case, the issue was whether  a German law on positive action was compatible 
with  Directive  76/207/EEC(2)  or whether  it  exceeded  the  exception  for  positive  action  laid 
down  therein.  The  law  of  the  Land  of  Bremen  on  equal  opportunities  in the  public  sector 
provides  that,  as  regards  both  recruitment  and  promotion  in  sectors  where  women  are 
under-represented,  namely  if  they  do  not  represent  50%  of  the  personnel  in  the  different 
grades of the category concerned, a woman having the same qualifications as a male applicant 
must be given preference  over him. 

The  Court  had  to  decide  whether  it  was  lawful  to  give  women  preference  over  male 
candidates in the event of a promotion in sectors where they were under-represented provided 
that their  qualifications  were the same. 

The  Commission,  in  its  Communication  of  ...  has  made  clear  its  interpretation  of  this 
judgment,  as well  as its own  appreciation  of positive  action. 

In  its judgment,  the  European  Court  of  Justice  makes  it  clear,  amongst  other  points,  that 
"national  rules which guarantee women  absolute and unconditional  priority  for  appointment 
or  promotion  go  beyond  promoting  equal  opportunities  and  overstep  the  limits  of  the 
exception  in Article 2(4)  of the Directive". 

(i) 

(2) 

Council  Recommendation  84/635/EEC  of  13  December  1984  on  the  promotion  of 
positive  action  for  women  (OJ No L  331,  19.12.1984,  p. 34). 
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 No L 39,  14.2.1976, p. 40). 

The  Commission  considers  that  the  Court  has  only  condemned  the  special  feature  of  tht 
Bremen  law which  consists  in the  automaticity  of the  measure, giving women  absolute  and 
unconditional  right  to  appointment  or  promotion.  Therefore,  the  Commission  takes  the 
position that the only type of quota system which is unlawful  is one which is completely rigid 
and  does  not  leave  any  possibility  of  taking  account  of  individual  circumstances 
Member  States  and  employers  are thus  free  to  have  recourse  to  all  other  forms  of  positive 
actions,  including flexible  quotas. 

The  Commission  is  anxious  that  the  controversy  to  which  the Kalanke  case  has  given  rise 
should be ended  definitively.  Therefore,  notwithstanding  the limited  nature of the impaa  of 
this judgment  as properly  construed,  the Commission  believes that  it is necessary  to  amend 
the  wording  of  Article  2(4)  of  Directive  76/207/EEC  so  that  the  text  of  the  provision 
specifically  permits the kinds of positive  action which  remain untouched  by Kalanke.  Thus, 
all  kinds of  positive  action  will  be permitted,  provided  they  allow for  the  assessment  of the 
particular  circumstances  of the individual  case. 

The amendment is of an interpretative  nature. 

II.  Comments on  the Articles 

Article 1 

The  text  reflects  the  interpretation  of  the Kalanke judgment  by  the  Commission  according 
to which  a wide range of action  (see Communication  on the Kalanke judgment) to promote 
access to employment  and  promotion  of members of the under-represented  sex continues  to 
be legal.  "Positive  action" measures have to leave the possibility  for  the employer  to assess 
particular  factors  that  justify 
the  choice  of  a  person  who  does  not  belong  to  the 
under-represented  sex. 

The  wording  takes  account  of  the  fact  that  equality  policy  is  a  policy  to  promote  equal 
opportunities for  men  and women. 

Articles 2 and 3 

These  Articles  contain  the  usual  provisions  for  transposai  into  the  national  law  of  the 
Member States. 

III.  Justification  for the proposal  with  regard  to the principle of  subsidiarity 

The  proposal  for  an  amendment  of  Directive  76/207/EEC  complies  with  the  principle  of 
subsidiarity  as regards its two criteria,  namely  necessity  and proportionality  as laid  down in 
Article 3b of the Maastricht  Treaty. 

The first  criterion,  namely  the necessity  to undertake  Community  action,  is  satisfied  in that 
action  is  required  in  order  to  avoid  possible  confusion  on  the  part  of  national  and 
Community  authorities  at  all  levels  that  are  called  upon  to  apply  Community  law  and 
particularly  Article 2(4)  of  the  existing  Directive  76/207/EEC.  The  Kalanke judgment  has 
given  rise  to  diverging  interpretations  that  threaten  the  effectiveness  of  positive  action  in 
favour  of  the  under-represented  sex.  As  it  is  generally  recognized  that  equal  access  to 

employment is one of the most important  conditions for the implementation  of the principle 
of  equal  treatment  which  is  one  of  the  fundamental  rights  forming  part  of  the  general 
principles of Community law*3*, the amendment will help to enable the implementation  of the 
Directive in a consistent  and uniform  manner. 

As  for  the  second  criterion,  the  proposed  Directive  corresponds  to  the  requirement  of 
proportionality  in so far  as the amendment is only of a declaratory  nature and does not alter 
the  scope of the Directive. 

Consultation  process 

The  Commission  has  consulted  the  social  partners  on  the  Communication  on  the 
Kalanke case.  This  proposal  for  an  amendment  of  Directive  76/207/EEC  reflects  the 
interpretation given in the Communication and transforms the contents of the Communication 
into a legally-binding  document. 

Application  in the EEA  States 

Directive  76/207/EEC  is  part  of  the  acquis  communautaire  of  the  Agreement  on  the 
European  Economic Area that entered  into force  with effect  from  1 January  1994. 

Directive  76/207/EEC  features  in the list of the instruments of  secondary  legislation  agreed 
by the EEA  States (Annex  XVIII, point  18). 

(3)  See inter  alia  Case C-149/77 (Defrenne  III, judgment  of  15 June  1978). 

4 

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 

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  Parliament0*, 

Having regard to the opinion  of the Economic  and  Social Committee<2), 

Whereas  Article 2(4)  of Council  Directive  76/207/EEC(3) 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 
Brernen(4>) 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, 

(i) 

(2) 

(3) 

(4) 

O J N o L 3 9,  14.2.1976, p. 40. 
[1995] ECR 1-3051. 

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 twentieth  day following  that of its publication in 
the Official  Journal  of the European  Communities. 

This Directive  is addressed  to the Member  States. 

Article 4 

Done at Brussels, 

For the Council 
The President 

IMPACT ASSESSMENT  FORM 

IMPACT OF THE PROPOSAL  ON BUSINESS, WITH  SPECIAL REFERENCE  TO 
SMALL AND MEDIUM-SIZED  ENTERPRISES 

Taking  account  of the principle  of  subsidiarity,  why  is Community  legislation  necessary  in 
this area and what  are its main  aims? 

The  objective  is  to  clarify  an  act  of  secondary  legislation  (Directive  76/207EEC)  as 
interpreted  by the Court  of Justice.  A proposal  for  an amended Directive is the only way to 
do this. 

Who will  be affected  by the proposal? 

As the amendment has a clarifying  character only, employers are no more affected  than they 
already  are by Directive  76/207/EEC. 

What will  businesses have to  do to comply  with the proposal? 

In so far  as businesses have plans for  preferential  access of the under-represented  sex, they 
have to provide for a clause that allows for the assessment of the individual case. 

ISSN 0254-1475 

COM(96) 93 final 

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