Re-examined proposal for a Council Directive on the burden of proof in cases of discrimination based on sex
Date: 1997-11-25
Institutions: European Commission
Subjects: EC Directive, equal treatment, gender equality, sexual discrimination, social security

COMMISSION OF THE EUROPEAN COMMUNITIES 

Brussels, 25.11.1997 
COM(97) 624  final 

96/0196  (PRT; 

Re-examined  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 c (d) 
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  19961. 

The main aim pursued  by this proposal is to adjust  the rules of 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 Committee gave their opinion 
on  10 April  19972 and 27 February 19973. 

On  14 May  1997, the Commission  transmitted  to the  Council  an  amended  proposal4. 
The Council  agreed  on  a  common  position  on 24 July  19975, which  was  adopted  by 
the European Parliament on 6 November  1997 subject to 6 amendments.  Out of these 
amendments, the Commission accepted  four. 

As regards the amendments accepted, the Commission has the following  comments to 
make. 

Amendment 1 

Subject 

Insert  in  a  recital  a  reference  to  the  three  social  security  Directives 
(79/7/CEE, 86/378/CEE and 86/613/CEE) 

Comment  Is in line with the Commission's  opinion to include these three  Directives 

in the scope of this Directive 

Amendment 2 

Subject 

Re-inserts  recital  12  of  the  Commission's  original  proposal  about  the 
necessity of adopting additional measures in this area 

Comment  Corresponds to the Commission's  opinion.  This recital  explains the need 
to  adopt  additional  measures to ensure an effective  implementation  of the 
principle of equal treatment 

Amendment 3 

Subject 

Inserts  in the  definition  of the  concept  of "indirect  discrimination"  more 
elements directly derived from the case-law 

OJN°C332,  17.11.1996, p. 11 
OJN°C132, 28.4.1997, p. 219 
OJN° €133,28.4.1997,  p. 34 
OJN°C185,  18.6.1997, p. 21 
OJN°C307,  8.10.1997, p. 6 

Comment  Is more in line with the case-law of the Court of Justice 

Amendment 4 

Subject 

Inserts a reference to the three social security Directives in the scope of the 
Directive 

Comment  Is in line with the  Commission's  opinion.  The  Commission  considers  that 

the principle laid  down by the Court  as regards the shift  of the  burden  of 

proof  is a general  one which  should  be  applied  in  all Directives  aimed  at 

upholding the principle of equal treatment between the sexes. 

Re-examined proposal for a 
COUNCIL DIRECTIVE 
on the burden of proof in cases of discrimination  based on sex 

COMMON POSITION 

RE-EXAMINED PROPOSAL 

Recital 8 

Whereas  the  principle  of  equal  treatment 
was  stated  in  Article  119  of  the  Treaty 
and  in  Council  Directive  75/117/EEC  of 
10  February  1975  on  the  approximation 
of the laws of the Member  States relating 
to the application of the principle of equal 
pay  for  men  and  women  and  in  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; 

Whereas  the  principle  of  equal  treatment 
was  stated  in  Article  119  of  the  Treaty 
and  in  Council  Directive  75/117/EEC  on 
equal  pay  for  men  and  women  and  in 
Council  Directive  76/207/EEC  on  access 
to  employment,  vocational  training  and 
conditions, 
and  working 
promotion 
Council  Directive 
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 
Directive 
security 
social 
86/378/EEC  on  occupational 
security schemes 

86/613/EEC 

Council 

and 

Recital lia  (new) 

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; 

Article 2.2 

Article 2.2 

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  disadvantages  a  substantially 
higher  proportion  of the  members of one 
sex,  unless  that  provision,  criterion  or 
practice  is appropriate  and  necessary  and 
can  be  justified  by  objective 
factors 
unrelated to sex. 

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,  unless  the  aim 
pursued corresponds to a real need on the 
part  of  the  undertaking  or  meets  a 
necessary  aim  of  the  policy  of  a Member 
State  and  can  be  justified  by  objective 

s 

factors  unrelated  to sex, and the means of 
achieving  that  aim  are  appropriate  and 
necessary. 

Article 3. La 

1. The Directive shall apply to: 

1. The Directive shall apply to: 

a) the situations covered by Article  119 of 
the Treaty and by Directives 75/117/EEC, 
76/207/EEC and, insofar  as discrimination 
based  on  sex  is  concerned,  92/85/EEC 
and 96/34/EC; 

a) the situations covered by Article  119 of 
the Treaty and by Directives 75/117/EEC, 
76/207/EEC,  79/7/EEC,  86/378/EEC, 
86/613/EEC and, insofar  as discrimination 
based  on  sex  is  concerned,  92/85/EEC 
and 96/34/EC; 

The  Commission  cannot  accept  the  following  amendments  proposed  by  the 
Parliament 

Amendment 5 

Subject 

Insertion of a new Article 4a (about procedures) 

Comment  The  deletion  of  Article  5  of  the  Commission's  original  proposal  in  the 
common  position,  that  the amendment  wishes to  re-insert,  does not  really 
do  any  harm.  In  fact,  that  Article  provided  for  something  which  already 
exists, in one way or another, in all the Member States' legal systems. 

Amendment 6 

Subject 

Inserts the obligation for  the Member States to transmit on a regular basis 
information  on the application of  the Directive  to  the Commission,  and 
for  the Commission to draw up a report every three years. 

Comment 

The wording of the common position is acceptable and is the outcome of a 
compromise which was difficult  to reach. 

ISSN 0254-1475 

COM(97) 624 final 

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05  06  04 

Catalogue number  :  CB-CO-97-641-EN-C 

ISBN 92-78-28037-2 

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