Amended proposal for a Council Directive on the burden of proof in cases of discrimination based on sex
Date: 1997-05-14
Institutions: European Commission
Subjects: equal pay, gender equality, proof, sexual discrimination, social policy

COMMISSION OF THE EUROPEAN COMMUNITIES 

Brussels,  14.05.1997 
COM(97) 202  final 

96/0196 (PRT) 

Amended proposal for a 

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

(presented by the Commission pursuant to Article 189 a (2) 
of the EC-Treaty) 

EXPLANATORY  MEMORANDUM 

The  initial  proposal  for  a  Council  Directive  on  the  burden  of  proof  in  cases  of 
discrimination  based  on  sex,  based  on  Article  2  (2)  of  Protocol  (N°  14)  on  social 
policy, annexed  to the Treaty,  was submitted  by the Commission to the Council on 20 
September  1996(1). 

The main aim pursued  by this proposal  is to adjust  the rules on the burden  of proof in 
cases of discrimination  based  on  sex and  to  ensure that  procedural  measures  taken by 
Member States in this respect are made more  effective. 

The European  Parliament  and  the  Economic  and  Social  Committe  gave  their  opinion 
on  10 April  1997(2)  and 27 February  1997(3) respectively. 

In  drawing  up  this  amended  proposal  the  Commission  took  into  account  the 
amendments  from  the  European  Parliament  which  aim  at  strengthening  the  main 
provisions of its original proposal, and in particular : 

a) 

b) 

c) 

the  definition  of  the  concept  of  "indirect  discrimination".  The  amended 
proposal is more in line with the current case-law of the Court of Justice; 

the  scope  of  the  Directive.  The  amended  proposal  updates  the  original 
proposal  and  takes  into  account  Directive  96/34/EC  on  the  framework 
agreement on parental leave concluded by UNICE, CEEP and ETUC; 

the  adjustment  of  the  burden  of  proof.  The  amended  proposal  makes  more 
apparent the link with the concept of indirect discrimination defined  in Article 2 
of the proposal  and  the circumstances in which  an adjustment  of the burden of 
proof can occur. 

This amendment is presented by the Commission under the terms of Article  189a (2) of 
the Treaty. 

(,)  OJN°C332,  17.11.1996, p. 11 
(2)  OJ N° ... 
(3)  OJN°... 

Amended Proposal  for a Council  Directive on the burden of proof in cases of 
discrimination  based on sex 

COMMISSION  PROPOSAL 

AMENDED COMMISSION 
PROPOSAL 

THE  COUNCIL  OF  THE  EUROPEAN 
UNION, 

THE  COUNCIL  OF  THE  EUROPEAN 
UNION, 

Having regard to the Agreement  on social 
policy  annexed  to  the  Protocol  (N°14), 
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, 

to 

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

Ireland 

(2)  Whereas  the  Community  Charter  of 
the  Fundamental  Social  Rights  of 
Workers  acknoledges  the  importance 
of 
of 
discrimination,  especially  those based 
on  sex,  colour,  race,  opinions  and 

combatting 

forms 

all 

(,)  OJ N° C 
(2)  OJ N° C 

beliefs  ;  whereas  on  13  December 
1995  the  Commission  adopted  a 
Communication0} 
racism, 
xenophobia and anti-semitism; 
(3)  Whereas  paragraph  16  of 

on 

of 

Charter 
Social  Rights 

the 
the 
Community 
Fundamental 
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 
remuneration, 
working conditions, social protection, 
eduction,  vocational 
training  and 
career development"; 

employment, 

(4)  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(2)  for  a  directive  on  the 
burden  of  proof  in the  area  of equal 
pay  and  equal  treatment  for  women 
and men; 

(5)  Whereas  the  European  Parliament  in 
its  Resolution  of  January  1994(3)  on 
the  White  Paper  on  European  social 
policy  asked  the  Commission  to 
present  a  proposal  for  a  directive 
regarding the burden of proof; 

(6)  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; 
(7)  Whereas the Commission, considering 
Community  action  advisable  after 
such 
again 
consulted those social  partners on the 
content  of  the  envisaged  proposal  in 
accordance  with  Article  3(3)  of  the 

consultation, 

once 

(,)COM(95)653 final 
(2) OJ N°C 176, 5.7.1988, p.5 
(3)  OJN°C43,  20.5.1995, p.63 

;  and  whereas  the 
said  Agreement 
latter  forwarded  their  opinion  to  the 
Commission; 

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

in  Article  4  of 

the 

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

and  working 

and  women 

contributes 

(ÎO)Whereas 

the  principle  of 

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

occupational 

social 

(10) Whereas 

Council 

the  principle  of 

equal 
treatment  has  been  set  out  in  Article 
119  of  the  EC  Treaty  and  in  Council 
Directive  75/117/EEC  on  equal  pay 
for  men  and  women0 \  as  well  as  in 
Council  Directive  76/207/EEC  on 
access 
to  employment,  vocational 
training  and  promotion  and  working 
conditions<2) 
Directive 
86/613/EEC  on  workers  engaged  in 
an  activity,  including  agriculture,  in  a 
self-employed  capacity,  and  on  the 
protection  of  motherhood(3)  ,  Council 
79/7/EEC 
Directive 
social 
security(4), 
Directive 
Council 
86/378/EEC  on  occupational  social 
security  schemes(5),  Council  Directive 
96/34/EC 
framework 
leave 
agreement 
concluded  by  UNICE,  CEEP  and  the 
ETUC(6) 

the 
parental 

on 
on 

on 

U)OJN°L 45,19.2.1975, p. 19 
(2)OJN°L39,  14.2.1976, p.40 
(3)OJN°L359,  19.2.1986, p.56 
<4)OJN°L6,  10.1.1979, p.24 
(5) OJ N° L 225,  12.8.1986, p.40, as amended by 
Directive 96/97/EC of 20.12.1996, OJ L 46 of 
17.2.97, p. 20 
( 6 )OJN°L  145, 19.6.1996, p.4 

or 

birth 

given 

(ll)Whereas  Council  Directive  92/85  on 
health  and  safety  at work  of  pregnant 
workers  and  workers  who  have 
are 
recently 
breastfeeding0}  also  contributes  to 
effectively  achieving  the  principle  of 
equal  treatment  between  men  and 
that  Directive 
women,  whereas 
should  not  work  to  the  detriment  of 
the 
directives 
concerning  equal  treatment;  whereas 
workers  covered  by  that  Directive 
should  equally  benefit 
the 
change  of  the  rules  regarding  the 
burden of proof; 

aforementioned 

from 

(12)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; 

(13)Whereas  plaintiffs  would  be  deprived 
of  any  effective  means  of  enforcing 
the  principle  of  equal 
treatment 
before  the national  courts  if the  effect 
of 
of  an 
apparent  discrimination  was  not  to 
the 
impose  upon 
burden  of  proving  that  his  practice  is 
not in fact  discriminatory; 

the  defendant 

introducing 

evidence 

(14)Whereas  the  Court  of  Justice  of  the 
European  Communities  has  therefore 
held  (2)  that  the  rules  regarding  the 
burden  of  proof  must  change  when 
case  of 
there 
is  a  prima 
the 
for 
discrimination  and 
principle  of  equal  treatment  to  be 
applied  effectively,  it  must  revert  to 

facie 
that, 

(,) OJ N°L  348, 28.11.1992,p.l 
{2) Judgment of  17 October  1989 in Case C-109/88, 
Danfoss,\\989JECR3199,  paragraph  16; judgment 
of 30 June  1988 in Case C-138/86, Commission v. 
France, [1988JECR 3559, paragraph  27); judgment 
of 27 October  1993 in Case C-127/92 Encierby v. 
Frenchay Health Authority,  [1993JECR 1-5535, 
paragraphs  13 and  14; and judgement of 31 May  1995 
in Case C-400/93, Royal  Copenhagen, [1995] ECR 
1-1275, paragraph 24. 

not 

has 

concept 

(15)Whereas  it  is ail  the  more  difficult  to 
prove that  discrimination  exists when 
it is indirect;  and  whereas,  given that 
the 
been 
incorporated  into  national  law  in  ail 
Member  States, 
therefore 
indirect 
important 
discrimination  precisely,  and  provide 
for  criteria  whereby 
it  can  be 
established  whether  or  not  indirect 
discrimination exists; 

it 
is 
define 

to 

(16)Whereas  the  aim  of  ensuring  an 
adequate  shift  in the burden  of  proof 
has not been achieved  satisfactorily  in 
the Member  States and in accordance 
with the principles of subsidiarity and 
proportionality  set  out  in  Article  3b 
the 
of 
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, 

the  Treaty 

establishing 

the defendant  when  evidence  of  such 
discrimination is brought; 

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

it 

(16)  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  3 b 
the 
of 
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. 

the  Treaty 

establishing 

HAS ADOPTED THIS DIRECTIVE 

Chapter I : General Provisions 

Article  J 
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  the possible recourse 
to  other  competent  authorities,  are  made 
more  effective 

Article 2 
Definitions 

Article 2 
Definitions 

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

directly 

either 

or 

For the purposes  of the  principle  of equal 
treatment  referred 
to  in  paragraph  1, 
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) 

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, 

(b) 

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; 

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,  inter alia 
by reference to marital or family status. 

For the purposes  of the principle  of equal 
treatment  referred 
to  in  paragraph  1, 
indirect  discrimination  exists  where  an 
apparently  neutral  provision,  criterion  or 
practice  disproportionately  disadvantages 
the  members  of  one  sex,  by  reference 
inter  alia  to  marital  or  family  status, 
unless  the  aim  pursued  corresponds  to  a 
real  need  of  the  undertaking  or  meets  a 
necessary  aim  of  the  social  policy  of  a 
Member  State,  in  itself  is  completely 
unrelated  to sex and as such is objectively 
justified  and unless the means of achieving 
this aim are appropriate and necessary. 

Article 3 
Scope 

1. This Directive shall apply to : 
(a) 

the  situations  envisaged  by  Article 
119  of  the  Treaty  and  Directives 
76/207/EEC, 
75/117/EEC, 
86/378/EEC, 
79/7/EEC, 
and 
86/613/EEC, 
96/34/EC; 

92/85/EEC 

(c)  any  civil  or  administrative  proced 

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

law 

2.  This  Directive  shall  not  apply  to 
criminal  procedures,  unless  otherwise 

provided  for by the Member States. 

Chapter  II  : Specific  provisions 

Chapter  II : Specific  provisions 

Article 4 
Burden  of proof 

Article 4 
Burden  of proof 

I.  Member  States 
take  such 
measures  as  are  necessary  in  accordance  measures  as  are  necessary  in  accordance 
with their national judicial  systems : 

with their national judicial systems : 

such  1.  Member  States 

shall 

shall 

take 

(a) 

to  ensure  that  where  persons  who 
consider 
themselves  wronged  by 
failure  to  apply  to  them  the  principle 
of  equal  treatment  as  defined 
in 
Article  2  establish,  before  a  court  or 
other  competent  authority,  a  fact  or 
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; 

(a)  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; 

(b)  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; 

(c)  to  ensure  that  the  plaintiff  does  not  (c) deleted 

have  to  prove  the  existence  of  any 
fault  on  the  part  of  the  defendant  to 
establish 
on 
discrimination  based  on  sex  has  been 
infringed. 

that 

ban 

the 

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

States 

from 

Article 5 
Procedures 

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

(a) 

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

of 

(b)  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 interess 
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 
exaple at their place of employment. 

Article 7 
Non-regression 

Article  7 
Non-regression 

justifying 

grounds 
in 

for 
the  general 

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

introducing 

in 

for 

justifying 

the  general 

Implementation  of  the  provisions  of  this 
Directive  shall  under  no circumstances be 
sufficient  grounds 
an 
absence  of  positive  action  measures  or a 
reduction 
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,  as  long  as  the 
minimum  requirements  in  the  Directive 
are complied with. 

Article 8 
Implementation 

Article 8 
Implementation 

and 

regulations 

Member  States  shall  bring  into  force  the  Member  States  shall  bring  into  force  the 
administrative 
administrative 
laws, 
laws, 
provisions  necessary  to  comply  with  this 
provisions  necessary  to  comply  with  this 
Directive  by  1 January  2000.  They  shall 
Directive  by  1 January  2001.  They  shall 
immediately 
the  Commission 
immediately 
the  Commission 
thereof. 
thereof. 

regulations 

inform 

inform 

and 

adopt 

When  Member  States 
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 
reference  shall  be  adopted  by 
such 
Member States. 

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 
reference  shall  be  adopted  by 
such 
Member States. 

Not more than two years after  the date of 
implementation  of  this  Directive,  and 
every  three  years  thereafter,  Member 
States  shall  transmit  information  to  the 
to  progress 
Commission  with  respect 
made  in  the  application  of  this  Directive 
in  the  use  of  provisions 
and 
contained 
the 
therein, 
Commission  to  draw  up  a  report  for  the 
Council  and  European  Parliament  every 
three years. 

enable 

trends 

to 

Article 9 
Addressees 
This Directive is addressed to the Member 
States. 

10 

ISSN 0254-1475 

COM(97) 202 final 

DOCUMENTS 

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04  05 

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ISBN 92-78-19399-2 

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