Proposal for a COUNCIL DIRECTIVE on the burden of proof in cases of discrimination based on sex
Date: 1996-07-17
Institutions: European Commission
Subjects: equal pay, gender equality, proof, sexual discrimination, social policy

COMMISSION OF THE EUROPEAN  COMMUNITIES 

Brussels,  17.07.1996 
COM(96) 340 final 

96/0196 (PRT) 

Proposal  for a 
COUNCIL DIRECTIVE 

on the burden of proof in cases of discrimination based on sex 

(presented by the Commission) 

EXPLANATORY  MEMORANDUM 

INTRODUCTION 

On 27 May  1988 the Commission  submitted  a proposal(}) for  a Council  Directive on the 
burden  of proof in the area  of equal  pay  and  equal  treatment  for  women  and  men.  The 
Economic  and  Social  Committee  delivered  its  opinion  on  27  October  1988(2)  and  the 
European  Parliament  on  15 December  1988(3). 

This  proposal  was  discussed  by  the  Council  on  several  occasions  between  1988  and 
1994.  The  legal  basis  -  Articles  100  and  235  -  requires  unanimity,  but  this  was  not 
achieved.  At  the  Council  meeting  of  23  November  1993, eleven  of  the  (then)  twelve 
Member  States  reached  a consensus  on the basis  of the  proposals  from  the  Greek  and 
Belgian  Presidencies. As the required unanimity  could not be obtained, the Commission 
undertook  to  initiate  the procedure  under  Article  3 of  the  Agreement  on  social  policy 
annexed  to the  Treaty  on  European  Union. 

On  5  July  1995  the  Commission  therefore  gave  its  approval  for  consultation  of  the 
social  partners  on  a  text  outlining  the  Commission's  past  initiatives  and  proposals  on 
the burden of proof. The document  also set out the European Court of Justice's case law 
in  this  matter.  39  organizations  were  consulted.  After  the  consultation  period  of 
six  weeks  had  been  extended,  the  Commission  received  20  replies. 

All  the  replies  stressed  that  correct  application  of  Community  legislation  on  equal 
opportunities  for  men  and  women  was vital.  As a result,  the fact  that  it is difficult  and 
sometimes  impossible  in  practice  for  plaintiffs  to  prove  that  a  manifest  difference  in 
employment  constitutes  illegal  discrimination  is commonly  seen  as an  obstacle  to  full 
implementation  of the principle of equality.  The vast majority  of the replies refer to the 
settled  case  law  of the  Court  of  Justice  in  this  matter. 

After  studying  these reactions,  the commission  decided  on  7 February  1996 to  launch 
the  second  round  of  consultation  of  the  social  partners  under  Article  3(3)  of  the 
Agreement  on  social  policy.  During  the  second  round,  the  Commission  clearly 
announced its intention  of presenting a directive on this matter.  As regards the probable 
content  of  the  directive,  it  made  it  known  that  it  intended  to  propose  a  change  rather 
than  a complete reversal  of the burden  of proof.  It also stated that it would put  forward 
a definition  of the concept of indirect discrimination in the light of the Court's case law. 
The  same  39 organizations  were  consulted.  After  the  consultation  period  of  six  weeks 
had  been  extended,  the  Commission  received  19 replies. 

As  in  the  first  round,  all  the  respondents  consider  that  it  is  important  to  apply  the 
principle  of  equality  correctly.  Having  said  that,  some  organizations  (especially  the 
employers'  federations)  think  that  the  Court's  case  law  as  it  stands  guarantees  full 
application of this principle. Others (the trade union federations)  claim that the case law 
is far from  being applied effectively  and plead for the adoption of a binding  instrument 
which  some respondents feel  should  provide for  a clear reversal  of the burden  of proof 
along  with  a definition  of  indirect  discrimination. 

In  the  light  of  these  consultations,  the  Commission  considers  that  Community  action 
is  necessary  to  ensure  that  the  principle  of  equal  treatment  is  complied  with 
scrupulously  and  has therefore  decided  to  present  a proposal  for  a directive. 

OJ  No  C  176,  5.7.1988,  p.  5. 
O J N oC  337,  31.12.1988,  p. 58. 
OJ  No  C  12,  16.1.1989,  p.  180. 

I. 

1. 

2. 

3. 

4. 

5. 

6. 

7. 

(i) 

(2) 

0) 

II.  CONTEXT 

I. 

8. 

9. 

General  considerations 

Promoting  equal  opportunities  for  women  and  men  has  been  a  key  policy  of  the 
European  Community  for  20 years.  Starting  with  Article  119 of the Treaty  of Rome, 
a sound legal basis was established guaranteeing men and women the right to equal pay 
for  the same work  or work  of equal  value(4),  and equal  treatment  as regards all aspects 
of work,  including  self-employed  work(5), and various aspects  of social  security(6). The 
directive  on  the  protection  of  pregnant  women(7)  also  contributes  to  achieving  the 
principle  of  equal  treatment.  These  guarantees  of  equality  have  been  transposed  into 
national  law  and  have  considerably  improved  the  economic,  occupational  and  social 
situation  for  men and women  throughout  the European  Union. 

However,  although  the  legal  framework  is  fairly  comprehensive,  equality  is  still  not 
accessible  to everyone  in the European  Unionw.  Sexual  discrimination  still  exists and 
the sufferers  are still unable to put a stop to it for several  reasons. Not enough is known 
about  Community  law in this matter,  either by individuals  or in legal  circles,  some of 
the complex  concepts (such  as indirect discrimination)  are difficult  to understand,  legal 
proceedings - in which,  moreover,  it is very  difficult  to prove discrimination  - are held 
to be protracted  and costly  and, what is more, there no effective  penalties which  act as 
a  deterrent  to  discrimination. 

10.  The procedural  problems encountered  by people who are discriminated  against and the 
fact  that they do not know their rights effectively  deprive them  of much of their  ability 
to  enforce  the  fundamental  rights  enshrined  in  Community  legislation.  One  of  the 
main  problems  here  is  proof,  which  plaintiffs  who  have  been  discriminated  against 
find  difficult  and  sometimes  impossible  to  establish  under  normal  circumstances, 
partly  because  it  is  the  defendant  who  normally  has  the  relevant 
information 
and  evidence.  Another  major  problem  is  understanding  and  applying  the  concept  of 
indirect  discrimination. 

Fourth medium-term Community action programme Tor equal opportunities for men and 
women  (1996-2000) adopted by the Council  on 22 December  1995(9) sets itself the goal 
of  improving  the  conditions  for  exercising  rights  to  equality.  In  the  Communication 
accompanying  the  proposal(10),  the  Commission  made  provision  for  information  and 
awareness-raising  activities and campaigns designed  to promote a better  understanding 
and  improved  application  of such  rights. It also  stated that it had undertaken  to initiate 
the procedure under Article  3 of the Agreement  on social  policy  annexed  to the Treaty 
on  European  Union  with  respect  to the burden  of  proof. 

Council  Directive  75/117/EEC,  OJ No L 45,  19.2.1975,  p. 19. 
Council  Directives  76/207/EEC,  OJ  No  L  30  K  ".1976,  p.  40  and  86/613/EEC, 
O J N oL  359,  19.12.1986,  p. 56. 
Council  Directives  79/7/EEC,  OJ  No  L  6,  10.1.1979,  p.  24  and  86/378/EEC, 
O J N o L 2 2 5,  12.8.1986,  p. 40. 
Council  Directive  92/85/EEC,  OJ No L  348, p. 1 
Access  to Equality  between Men and  Women in the European  Community.  Records of 
the  Proceedings  of the European  Conference.  Louvain-la-Neuve,  1992 
Sex  Equality  Litigation 
A  Comparative  Study.  B. Fitzpatrick  et al  1994 
The  Utilisation  of  Sex  Equality  Litigation  Procedures  in  the Member  States  of  the 
European  Community: A  Comparative  Study.  B. Fitzpatrick  et al 1996. 
Council  Decision  95/593/EEC of 22 December  1995, OJ No L 335, 30.12.1995, p. 37. 

in  (he  Member  States  of  the  European  Community: 

(9) 
(10>  COM(95)  381 final. 

II. 

(4) 
(5) 

(6) 

(7) 
(8> 

12. 

In its Resolution  of January  1994(U) on the White Paper on European  Social  Policy, the 
European  Parliament  asked  the  Commission  to  present  a directive  on  this matter.  It is 
therefore  a question  of taking  up the matter  again  on the basis of the  consensus  which 
has  emerged  in  the  Council. 

ltox 

2. 

Adjustment  of  the  rules  on  the  burden  of  proof 

13.  The  Court  of Justice  first  examined  the  question  of  the  burden  of  proof  back  in  1989, 
ruling  in  a case of indirect  discrimination  in the context  of equal  pay  in Danfoss{U).  In 
this  case,  the  Court  had  to  decide  whether,  if  an  enterprise's  wage  structure  lacks 
transparency,  it  is  up  to  the  employer  to  prove  that  his  remuneration  practice  is  not 
discriminatory,  when  a female  worker  establishes that,  for  a relatively  high  percentage 
of the workforce,  women  are paid less than  men  on average.  The Court (paragraph  13) 
stressed that  in a situation  where  "a system  .... is completely  lacking in transparency  is 
at  issue,  female  employees  can  establish  differences  only  so  far  as  average  pay  is 
concerned.  They  would  be  deprived  of  any  effective  means  of  enforcing  the  principle 
of  equal  pay  before  the  national  courts  if  the  effect  of  introducing  such  evidence  was 
not  to impose upon  the  employer  the burden  of  proving  that  his practice  in  the  matter 
of wages is not  in fact  discriminatory".  The Court  went  on to  say  (paragraph  14) that 
"the  concern  for  effectiveness  which 
thus  underlies  the  directive  [75/117/EEC 
(and  in  particular  Article 6)] means that it must be interpreted  as implying  adjustments 
to  national  rules  on  the  burden  of  proof  in  special  cases  where  such  adjustments  are 
necessary  for  the  effective  implementation  of  the  principle  of  equality".  As  regards 
lack  of  transparency,  the  Court  showed  great  concern  at  this  phenomenon 
in 
Commission  v Erance(U\  which  dealt  with  an  intransparent  recruitment  system. 

14.  This  case  law was  developed  in  Enderby{U)  in  1993.  Here,  the  situation  was  different 
as the pay system  was transparent.  The Court  stressed  (paragraph  18) that  "where there 
is  a  prima  facie  case  of  discrimination,  it  is  for  the  employer  to  show  that  there  are 
objective  reasons  for  the  difference  in  pay.  Workers  would  be  unable  to  enforce  the 
principle  of  equal  pay  before  national  courts  if  evidence  of  a  prima  facie  case  of 
' "> tr  * employer  the  onus  of  showing  that  the  pay 
discrimination  did  not  shift 
differential  is  in  fact  not  discriminatory". 

15. 

In  its judgment  of  31  May  1995  in  Royal  Copenhagen(l5\  the  Court  confirmed  its 
case  law,  stressing  that  (paragraph  24)  "the  Court  has,  however,  held  (judgment  of 
27  October  1993 in Enderby) that the burden of proof, which is normally  on the worker 
bringing  legal  proceedings  against  his  employer  with  a  view  to  removing  the 
discrimination  of which he believes himself to be the victim,  may  be shifted  when  that 
is necessary  to avoid  depriving workers who appear to be the victims of  discrimination 
of  any  effective  means  of  enforcing  the  principle  of  equal  pay". 

16.  Court  thus holds that  the burden  of proof  must be  shifted  when  discrimination  appears 
to  exist  possibly  in  connection  with  a lack  of  transparency  in  the  system  used.  If  this 
proves to be the case, the burdv .1  of  xvroof must  revert  to the defendant  in  order for  the 
principle  of  equality  to  be  applied  in  practice. 

(11)  O J N o C 4 3,  20.2.1995,  p. 63. 
(12)  Case  C-l09/88, judgment  of  17.10.1989,  ECR  1989,  p  3199. 

(13) 

(14) 

(15) 

Case  C-318/86, judgment  of  30  June  1988, ECR  1988, p.  3559. 
Case  C-127/92, judgment  of  27.10.1993, ECR  1993, p. 1-5535. 
Case  C-400/93, judgment  of  31.5.1995,  not  yet  published. 

17.  The  concept  of  shifting  the burden  of  proof  (as  an  exception  to the  general  principle) 
in  the  positive  law  of  the  Member  States.  Seven  countries 
is  not  unknown 
(Austria,  France, Germany, Italy, Finland,  Spain and Sweden) have explicit  regulations 
transferring  the  burden  of  proof  in  cases  of  discrimination  based  on  sex.  The  other 
eight  (Belgium,  Denmark,  Greece,  Ireland,  Luxembourg, 
the 
United  Kingdom  and Portugal) have special rules on the burden of proof in the  specific 
areas  of  pay,  dismissal  and  maternity. 

the  Netherlands, 

18.  This legal  interpretation  is, moreover,  not unfamiliar  in  Community  law, as it exists in 
the  area  of  consumer  protection.  The  1985  Directive(16)  provides  that  the  producer  is 
liable  for  damage  caused  by  a  defective  product  unless  he  can  prove  the  contrary. 

3. 

Indirect  discrimination 

19.  Neither  Article  119 of the  Treaty  nor Directive  75/117/EEC  contains  any  reference  to 
indirect  discrimination.  However,  all  the  other  directives  adopted  subsequently  in  this 
area  prohibit  both  indirect  and  direct  discrimination  based  on  sex.  All  the  same,  there 
is  no  definition  of  indirect  discrimination  in  the  secondary  legislation.  It  can  be 
described  as  discrimination  which,  "although  it  does  not  actually  refer  to  sex,  has 
effects  in practice which are no different  to unequal treatment which is expressly  linked 
to  sex"(17). 

20.  The  Court  has  delivered  a  great  many judgments0*0  in  which  it  defines  and  prohibits 

this  form  of  discrimination.  This  applies  equally  in  the  matter  of  equal  pay. 

21.  The  hallmarks  of  indirect  discrimination  are  as  follows: 

21.1  In the first place, discrimination  must result from  an apparently  neutral  criterion  which 
affects  a greater number of persons of one of the sexes. Examples of the type of criteria 
which could result in differences  in treatment  are marital  status, part-time  employment, 
mobility  and  length  of  service.  As  regards  the  second  aspect,  i.e.  that  the  neutral 
measure affects  a considerably  larger  proportion  of  versons  of  one sex,  the Court  held 
that  this was  a matter  of  fact  which  it was  for  national  courts to  determine. 

(16) 

(17) 

(18) 

Council  Directive  85/374/EEC  of  27  July  1985  on  the  approximation  of  the  laws, 
regulations and administrative  provisions  of the Member  States concerning liability  for 
defective  products,  OJ No  L  210,  7.8.1985,  p. 29. 
Conclusions  of  Advocate-General  M.  Mancini  in  Teuling, 30/85. 
Cases  96/80  Jenkins,  ECR  1981,  p.  911;  170/84  Bifka,  ECR  1986,  p.  1607;  237/85, 
Rummler, ECR  1986, p. 2101; 30/85  Teuling, ECR  1987, p. 2497;  171/88 Rinner-Khun, 
ECR  1989,  p.  2743;  102/88 Ruzius,  ECR  1989,  p.  4311;  109/88 Danfoss,  ECR  1989, 
p.  3199;  C-33/89  Kowalska,  ECR  1990,  p.  1-2591,  C-184/89  Afowz,  ECR  1991, 
p.  1-2265;  C-360/90  Bôtel,  ECR  1992,  p.  1-3589;  C-226/91 Molenbroek,  ECR  1992, 
p.  1-5943; C-328/91  Thomas e.a., ECR  1993, p. 1-1247; C-343/92/toJbre.a, ECR  1994, 
p.  1-571;  C-317/93  Nolte,  ECR  1995,  p.  1-4625;  C-399/92,  C-409/92,  C-425/92,  C-
34/93,  C-50/93  and  C-78/93 Helmig  e.a.,  ECR  1994, p. 1-5727; C-444/93  Megner  and 
Scheffel, ECR  1995, p 1-4741 ; C-280/94 Posthuma-van Damme e.a.,; C-547/93  Lwark; 
C-8/94  Laperre,  not  yet  published. 

21.2  In the second place, once it has been  established that there is a difference  in treatment 
as a result of a neutral  criterion being applied, the defendant  may prove that he or she 
is  pursuing  an  important  aim  in  so  doing.  This  aim, as  such,  must  be  deserving  of 
protection  and must be sufficiently  important  to justify  it taking  precedence  over the 
principle of equal treatment.  Examples of such aims which  could justify  the principle 
of  equal  treatment  being  waived  are  a  genuine  need  on  the  part  of  the  enterprise, 
guarantee of a social level of minimum subsistence for persons with dependent children 
or  spouse  (in  Member  States  where  this  concept  exists)  or  aims  enshrined  in 
Member  States' social  policy. 

21.3  In  the  third  place,  the  means  employed  to  achieve  the  aim  must  be  suitable  and 
necessary. As a rule, the Court leaves it to the national  court to decide, regarding it as 
a  matter  of fact.  In the field of  social  policy,  however,  the Court  has, in  some cases, 
held  that  the  national  legislature  might  reasonably  consider  that  the  means  were 
appropriate  for attaining  a legitimate  objective  and were necessary,  hence  concluding 
that they  did not constitute  sexual  discrimination. 

21.4  Finally,  in the case  of  indirect  discrimination  there  is a  shift  in the burden  of proof. 
First,  the  existence  of  a  difference  in  treatment  resulting  from  the  application  of  a 
criterion  or measure which  is apparently  neutral  must be established  and then it is up 
to  the  defendant  to  prove  that  he  or  she  is  pursuing  an  important  objective  by 
appropriate  and necessary  means. 

22.  There  is  a  specific  definition  of  indirect  discrimination  in  Ireland,  Italy  and  the 
United  Kingdom.  In  six  other  countries  (Belgium,  Denmark,  Finland,  Greece,  the 
Netherlands  and Sweden)  this  concept  is not really  defined  but discrimination  on the 
basis  of  criteria  such  as family  status  or  others  is  expressly  forbidden.  In  the  other 
Member States (Germany, France,  Spain, Luxembourg,  Austria and Portugal) the term 
"indirect  discrimination"  does not occur as such in the legislation.  However,  a general 
ban  on discrimination  based  on sex also covers this  specific  form  of  discrimination. 

III.  JUSTIFICATION  WITH  REGARD TO SUBSIDIARITY 

23.  The reason  why  de facto  discrimination  still  exists  is because  it  is  difficult  or  even 
impossible  to prove  the  existence  of  discrimination  based  on sex. Even  though  both 
the relevant  Community  law and national  legislation  quite clearly  affirm  the principle 
of equal treatment, there are obstacles to applying it in practice, especially with  regard 
to proof. 

24.  The use  of  a  Community  legislative  instrument  in  this  area  is  in  keeping  with  the 
principle of subsidiarity.  The Court  of Justice's  case law with  regard to the burden of 
proof  in  the  Member  States  is  far  from  being  applied  uniformly.  The  Community 
instrument  is  necessary  to  enable  the  case  law  relating  to  the burden  of  proof  and 
indirect  discrimination  to be  applied  effectively  and  uniformly,  and both  to  make  it 
clear that the Court's case law relating to the burden of proof extends to areas of equal 
treatment other than equal pay and to facilitate the transposition into national law of the 
concept of indirect discrimination, which is not always properly understood. Moreover, 
the content  of the proposed  instrument  complies with the principle of proportionality, 
as  it  will  lay  down  minimum  requirements,  giving  the  Member  States  the  greatest 
possible latitude in determining how the principle of shifting the burden of proof in the 
matter  of equal  treatment  is to be applied.  It should  also be stressed  that the Council 
is  favourably  disposed  towards  this  proposal.  In November  1993, eleven  of the then 
twelve Member  States were in favour  of adopting  a directive  on this  subject. 

25.  The Community legislation will have no direct impact on enterprises* operations. In the 
first  instance,  it  will  not  cover  the  internal  organization  of  enterprises  but  will  apply 
solely where legal redress is sought. This means that enterprises will not have to adopt 
specific  measures  to  adapt  to  the  change  in  procedure.  In  the  second  instance, 
this Directive  does  not  aim  to  create  any  new  rights,  as  it  both  follows  the  line  of 
reasoning  adopted  in  the  Court's  case  law  and  is  intended  to  bring  about  more 
effective  application  of  the  principle  of  equal  treatment  which  is  part  of  the 
acquis communautaire and is already  a fundamental  right  under the general  principles 
of  Community  law°9).  Finally,  such  legislation  will  not  impose  any  administrative, 
financial  or  legal  constraints  which  could  hinder  the  creation  and  development 
of  SMEs. 

IV.  COMMENTARY  ON  THE  ARTICLES 

26.  The legal basis is Article 2(2) of the Agreement on social policy annexed to the Treaty 
on  European  Union(20), which  expressly  provides  for  Community  legislation  on  equal 
treatment.  Article  2(2)  also  provides  for 
to  take  the  form  of  a 
Council  directive.  The  Agreement  on  social  policy  was  chosen  as  the  legal  basis 
because the Commission's  1988 proposal  was blocked  in the Council. 

legislation 

27.  The  proposal  for  a  Directive  comprises  three  chapters  -  general  provisions,  specific 
provisions  on  the  burden  of  proof,  the  definition  of  indirect  discrimination  and  the 
procedure for  obtaining  evidence,  and final  provisions. 

Chapter I,  General provisions 

This chapter  covers the aim  and  scope of the Directive. 

Article  1 -  Aim 

This  Article  indicates  the  aim  of  the  Directive  and  is  largely  based  on  Article  6  of 
Council  Directive  76/207/EEC. 

Article  2 - Definition 

This Article defines the principle of equal treatment and draws on existing Community 
provisions. 

Article  3 - Scope 

The Directive is to apply to all Community equality provisions and hence all public and 
private  procedures  except  criminal  procedures. 

Chapter II, Specific provisions 

This chapter deals with three specific  issues - the burden of proof, the procedures to be 
followed  to obtain  evidence and  the concept  of indirect  discrimination. 

<19) 

(20) 

See, inter  alia.  Case C-149/77 (Defrenne Iff),  judgment  of  15 June  1978,  ECR  1978, 
p.  1365. 
"With a view to achieving the objectives of Article  1, the Community  shall  support and 
complement  the activities  of the Member  States in  the  following  fields: 
(...) 

equality between men and women with regard to labour market opportunities and 
treatment  at work". 

Article  4 -  Burden of proof 

This Article sets out how the burden  of proof is shifted  in accordance with the Court's 
case law. In paragraph  1  the Commission  proposes that the burden  of proof reverts to 
the defendant  as soon  as the plaintiff  has established,  by  showing a fact  or a series of 
facts,  the  existence  of  less  favourable  treatment  caused  by  apparent  discrimination 
(Royal Copenhagen, paragraph  24). The  defendant  must then  prove that the  principle 
of equality has not been infringed  by showing that there are objective reasons unrelated 
to  sex  which  justify  the  difference  in  treatment  (Enderby, paragraph  19).  Once  the 
presumption  of  discrimination  has  been  established,  the  Member  States  are  asked  to 
place the onus on the  defendant  to provide conclusive  evidence that the difference  in 
treatment  was  not  illegal,  with  the  plaintiff  enjoying  the  benefit  of  any  doubt 
concerning the exact interpretation  of the facts. 

The  defendant's  intentions  to  discriminate  or  not  may  not  be  taken  into  account  in 
such cases. 

Paragraph 2 authorizes the Member States to reverse the burden of proof altogether and 
is introduced to comply with the principle of subsidiarity and to take account of the fact 
that this Directive contains minimum requirements. In this case, as soon as the plaintiff 
claims  that  he  or  she  has  been  a  victim  of  less-favourable  treatment,  it  is  for  the 
defendant  to prove positively  and  objectively  that  discrimination  has not taken place. 

Article  5 - Procedures 

This Article requires that information  necessary to present a case can be obtained  from 
the  party  in  whose  possession  it  is  or  who  can  reasonably  be  asked  to  collect  it,  if 
doing  so does not impose too heavy  a burden  on this party. 

Article  6 - Indirect discrimination 

This Article  sets out the concept  of indirect  discrimination  as defined  by the Court. 

Chapter 3, Final provisions 

This  chapter  mainly  contains  provisions  taken  from  Community  equality  directives, 
including  the  information  of  the  persons  concerned  and  directives  laying  down 
minimum  requirements  on  social  matters. 

Proposal  for a 
COUNCIL DIRECTIVE 

on the burden of proof in cases of discrimination  based on sex 

THE COUNCIL OF THE EUROPEAN  UNION, 

Having regard to the Agreement on social  policy  annexed to the Protocol  (No  14) on social 
policy,  annexed  to  the  Treaty  establishing  the  European  Community,  and  in  particular 
Article 2(2) thereof, 

Having regard to the proposal  from  the Commission(1), 

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

Acting  in  accordance  with  the  procedure  referred  to  in  Article  189c  of  the EC  Treaty,  in 
cooperation with the European Parliament^, 

Whereas,  on  the  basis  of  the  Protocol  on  social  policy  annexed  to  the  Treaty,  the 
Member States,  except  the  United  Kingdom  of  Great  Britain  and  Northern  Ireland 
(hereinafter  called  "the Member States"), wishing to implement the Social  Charter of  1989, 
have established  an Agreement on social  policy; 

Whereas the Community Charter of the Fundamental  Social Rights of Workers acknowledges 
the  importance  of  combating  all  forms  of  discrimination,  especially  those  based  on  sex, 
colour,  race, opinions and beliefs;  whereas on  13 December  1995 the Commission  adopted 
a Communication^ on racism, xenophobia and anti-semitism; 

Whereas  paragraph  16  of  the  Community  Charter  of  the  Fundamental  Social  Rights  of 
Workers  concerning  equal  treatment  for  men  and  women  provides,  inter  alia,  that 
"action should be intensified to ensure the implementation of the principle of equality for men 
and women as regards in particular access to employment, remuneration, working conditions, 
social  protection,  education, vocational  training and career development"; 

Whereas the Council, despite the existence of a broad consensus amongst the majority of the 
Member  States,  has not been able to act on the proposal(5) for a directive  on the burden of 
proof in the area of equal  pay and equal treatment for women and men; 

Whereas the European Parliament in its Resolution of January  1994(6) on the White Paper on 
European social  policy asked the Commission to present a proposal for a directive regarding 
the burden of proof; 

Whereas the Commission, in accordance with Article 3(2) of the Agreement on social policy, 
has  consulted  the  social  partners  at  Community  level  on  the  direction  Community  action 
might take with respect to the burden of proof in cases of discrimination based on sex; 

(1)  OJ No C 
(2)  OJ No C 
(3)  Opinion  of  the  European  Parliament  of  ...  (OJ  No  C  ...),  common  position  of  the 

Council  of...  (OJNoC  ) 
COM(95) 653  final. 

(4) 
(5)  OJNoC  176,  5.7.1988,  p. 5. 
(6)  OJNoC  43, 20.2.1995,  p. 63. 

Whereas the Commission,  considering  Community  action  advisable  after  such  consultation, 
once  again  consulted  those  social  partners  on  the  content  of  the  envisaged  proposal  in 
accordance with  Article  3(3)  of  the  said  Agreement;  and  whereas the latter  forwarded  their 
opinion  to the  Commission; 

Whereas,  after  the  second  round  of  consultation,  the  social  partners  have  not  informed  the 
Commission of their wish to initiate the process - possibly leading to an agreement - provided 
for  in  Article 4 of the said  Agreement; 

Whereas,  in  accordance  with  Article  1  of  the  Agreement,  the  Community  and  the 
Member  States have set themselves the objective of improving living and working conditions; 
whereas  effective  implementation  of  the  principle  of  equal  treatment  for  men  and  women 
contributes to achieving this aim; 

Whereas  the  principle  of  equal  treatment  has  been  set  out  in  Article  119 of  the EC  Treaty 
and  in  Council  Directive  75/117/EEC(7)  on  equal  pay  for  men  and  women,  as  well  as  in 
Council Directive 76/207/EEC(8) on access to employment, vocational training and promotion 
and working conditions. Council  Directive 86/613/EEC(9) on workers engaged in an activity, 
including  agriculture,  in  a  self-employed  capacity,  and  on  the  protection  of  motherhood, 
Council  Directive  79/7/EEC(10)  on  social  security  and  Council  Directive  86/378/EEC(11)  on 
occupational  social  security  schemes; 

Whereas Council  Directive  92/85/EEC(12) on  health  and  safety  at work  of pregnant  workers 
and workers who have recently given birth or are breastfeeding  also contributes to  effectively 
achieving the principle of  equal  treatment between  men  and women; whereas that  Directive 
should not work to the detriment of the aforementioned  directives concerning equal treatment; 
whereas workers covered by that Directive should equally benefit  from  the change of the rules 
regarding  the burden  of proof; 

Whereas effective  implementation  of the principle of equal  treatment requires that additional 
measures be taken in relation to procedure and evidence to be provided before national courts 
or other competent  authorities; 

Whereas  plaintiffs  would  be  deprived  of  any  effective  means  of  enforcing  the  principle  of 
equal treatment before the national courts if the effect  of introducing evidence of an apparent 
discrimination was not to impose upon the defendant  the burden  of proving that his practice 
is not  in fact discriminator}/; 

Whereas the Court of Justice of the European Communities has therefore  held(,3) that the rules 
regarding the burden of proof must change when there is a prima facie case of discrimination 
and  that,  for  the  principle  of  equal  treatment  to be  applied  effectively,  it  must  revert  to the 
defendant  when  evidence of  such  discrimination  is brought; 

(7) 

(8) 

(9) 

(10) 

(11) 

(12) 

(13) 

O J N o L 4 5,  19.2.1975, p.  19. 
O J N o L 3 9,  14.2.1976,  p. 40. 
OJ No L  359,  19.12.1986,  p. 56. 
O J N 0 L 6,  10.1.1979, p. 24. 
OJ No L 225,  12.8.1986, p. 40. 
OJ No L  348, 28.11.1992,  p.  1. 
Judgment of  17 October  1989 in Case C-109/88, Danfoss, [1989] ECR  3199, para.  16; 
judgment of 30 June  1988 in Case C-318/86, Commission v France, [1988] ECR  3559, 
para.  27, judgment  of 27 October  1993 in Case C-127/92, Enderby v Frenchay Health 
Authority,  [1993]  ECR  1-5535,  paras.  13  and  14;  and judgment  of  31  May  1995  in 
Case C-400/93,  Royal Copenhagen, [1995] ECR  1-1275, para. 24. 

10 

Whereas it is all the more difficult  to prove that discrimination  exists when it is indirect; and 
whereas  it is therefore  important  to define  indirect  discrimination  precisely; 

Whereas  the  aim  of  achieving  an  adequate  shift  in  the  burden  of  proof  is  not  achieved 
satisfactorily  in the Member  States and in accordance with  the principles of  subsidiarity  and 
proportionality  set out in Article 3b of the Treaty establishing the European Community; this 
aim  must  be  attained  at  Community  level;  whereas  this  Directive  confines  itself  to  the 
minimum  action required  and  does not go beyond  what  is necessary  for  that  purpose, 

HAS  ADOPTED  THIS  DIRECTIVE. 

Chapter  1: General  provisions 

' 

Article 1 

Aim 

The  aim  of  this  Directive  is  to  ensure  that  measures  taken  by  the  Member  States  in  the 
application  of  the  principle  of  equal  treatment  in  order  to enable  all  persons,  who  consider 
themselves wronged  by  failure  to  apply  to them  the principle  of  equal  treatment, to  pursue 
their  claims  by judicial  process  after  possible  recourse  to  other  competent  authorities,  are 
made more  effective. 

Article 2 

Definitions 

1. 

2. 

For  the  purposes  of  this  Directive,  the  principle  of  equal  treatment  shall  mean  the 
absence of any discrimination based on sex, either directly or indirectly, particularly by 
reference  to marital  or family  status. 

For the purposes of the principle of equal treatment referred  to in paragraph  i,  indirect 
discrimination  exists  where  an  apparently  neutral  provision,  criterion  or  practice 
disproportionately  disadvantages the members of one sex, by reference  in particular to 
marital  or  family  status,  unless  the  aim  pursued  by  the  application  of  the  provision, 
criterion  or  practice  is  objectively  justified  and  the  means  of  achieving  it  are 
appropriate  and  necessary. 

Article 3 

Scope 

1. 

This Directive  shall  apply to: 

(a) 

(b) 

(c) 

the situations envisaged by Article  119 of the Treaty and Directives 75/117/EEC, 
76/207/EEC,  79/7/EEC,  86/378/EEC,  86/613/EEC and  92/85/EEC; 

the  situations  envisaged  by  any  Community  measure  adopted  in  the  future 
relating to  the  principle  of  equal  treatment  which  does  not  expressly  exclude 
its  application; 

any  civil  or  administrative  procedure  concerning  the  public  or  private  sectors 
which  provides  for  means  of  redress  under  national  law  in  pursuance  of  the 
measures referred  to in  points (a)  and (b). 

2. 

This Directive shall not apply to criminal procedures, unless otherwise provided for by 
the Member  States. 

11 

Chapter  11:  Specific  provisions 

Article 4 

Burden  of  proof 

1.  Member  States  shall  take  such  measures  as  are  necessary  in  accordance  with  their 

national judicial  systems: 

(a) 

(b) 

(c) 

to  ensure  that  where  persons  who  consider  themselves  wronged  by  failure  to 
apply  to them  the principle of  equal  treatment  establish,  before  a court  or  other 
competent  authority,  facts  from  which discrimination  may be presumed  to exist, 
it shall be for the respondent to prove that there has been no contravention  of the 
principle  of  equal  treatment.  The  plaintiff  shall  benefit  from  any  doubt  that 
might  remain; 

to  ensure  that  it  is  for  the  defendant,  when  it  applies  a  system  or  a  decision 
lacking transparency, to prove that the apparent discrimination is due to objective 
factors  unrelated  to any  discrimination  based  on sex; 

to  ensure that  the plaintiff  does not have  to prove the  existence  of  any  fault  on 
the part of the defendant  to establish  that the ban on discrimination based on sex 
has been  infringed. 

2. 

This Directive does not prevent Member States from  introducing evidential rules which 
are more favourable  to the  plaintiff. 

Article 5 

Procedures 

Member  States  shall  introduce  into  their  national  legal  systems  such  measures  as  are 
necessary  to ensure that: 

(a) 

(b) 

the  courts  and  other  competent  authorities  may  give  such  directions  as  are  necessary 
for  an  effective  investigation  of  any  complaint  relating to  discrimination; 

the  parties  concerned  have  all  the  relevant  information  in  the  possession  of the  other 
party  or  which  may  reasonably  be  assumed  to  be  in  its  possession  and  which  is 
necessary  for  them  to exercise their rights. Parties are required  to provide only  pieces 
of  information  whose  disclosure  would  not  substantially  damage  their  interests  in 
connection with  matters other than the litigation  concerned. 

Chapter  III: Final  provisions 

Article 6 

Information 

Member  States shall  ensure that measures taken  pursuant to this Directive, together with the 
provisions  already  in  force,  are  brought  to  the  attention  of  all  relevant  persons  by  all 
appropriate  means,  for  example  at their  place of  employment. 

12 

Article 7 

Non-regression 

Implementation of the provisions of this Directive shall under no circumstances be  sufficient 
grounds for justifying  a reduction  in the general  level  of protection  of workers in the area to 
which it applies, without prejudice  to the right of  the  Member  States to respond  to  changes 
in the  situation by  introducing  laws,  regulations  and  contractual  arrangements  which  differ 
from those existing when this Directive was notified,  .is long as the minimum  requirements 
in the Directive are complied  with. 

implementation 

Member  States  shall  bring  into  force  the  laws,  regulations  and  administrative  provisions 
necessary  to comply  with this Directive by  1 January  2001. 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  b® adopted  by Iviember States. 

Article 9 

Addressees 

This Directive  is addressed to the Member  States. 

Done at Brussels, 

For the Council 
The President 

ISSN 0254-1475 

COM(96) 340  final 

DOCUMENTS 

EN 

06  05  04 

Catalogue number  : CB-CO-96-390-EN-C 

ISBN 92-78-07457-8 

Office  for Official  Publications of the European Communities 

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