Council Directive 97/80/EC of 15 December 1997 on the burden of proof in cases of discrimination based on sex
Date: 1997-12-15
Institutions: Council of the European Union
Subjects: European social policy, equal treatment, proof, sexual discrimination

L 14/6

EN

Official Journal of the European Communities

20. 1. 98

COUNCIL DIRECTIVE 97/80/EC

of 15 December 1997

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 laid down in
Article 189c of the Treaty, in cooperation with the Euro-
pean Parliament (3),

the proposal contemplated in accordance with
Article 3(3) of the same Agreement; whereas the
latter have sent their opinions to the Commission;

(6) Whereas, after the second round of consultation,
neither management nor labour have informed the
Commission of their wish to initiate the process (cid:190)
possibly leading to an agreement (cid:190) provided for in
Article 4 of the same Agreement;

(1) Whereas, on the basis of

the Protocol on social
policy annexed to the Treaty, the Member States,
with the exception of the United Kingdom of Great
Britain and Northern Ireland (hereinafter called ‘the
Member States'), wishing to implement
the 1989
Social Charter, have concluded an Agreement on
social policy;

(7) Whereas, in accordance with Article 1 of the Agree-
ment, the Community and the Member States have
set themselves the objective, inter alia, of improving
living and working conditions; whereas effective
implementation of the principle of equal treatment
for men and women would contribute to the
achievement of that aim;

(2) Whereas the Community Charter of

the Funda-
mental Social Rights of Workers recognizes the
importance of combating every form of discrim-
ination, including discrimination on grounds of sex,
colour, race, opinions and beliefs;

(3) Whereas paragraph 16 of the Community Charter of
the Fundamental Social Rights of Workers on 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
to
remuneration, working conditions,
employment,
social protection, education, vocational training and
career development';

in particular, access

regards,

(4) Whereas,

in accordance with Article 3(2) of

the
Agreement on social policy, the Commission has
consulted management and labour at Community
level on the possible direction of Community action
on the burden of proof in cases of discrimination
based on sex;

(5) Whereas the Commission, considering Community
action advisable after such consultation, once again
consulted management and labour on the content of

(1) OJ C 332, 7. 11. 1996, p. 11 and
OJ C 185, 18. 6. 1997, p. 21.
(2) OJ C 133, 28. 4. 1997, p. 34.
(3) Opinion of the European Parliament of 10 April 1997 (OJ C
132, 28. 4. 1997, p. 215), Common Position of the Council of
24 July 1997 (OJ C 307, 8. 10. 1997, p. 6) and Decision of
the European Parliament of 6 November 1997 (OJ C 358,
24. 11. 1997).

(8) Whereas the principle of equal treatment was stated
in Article 119 of the Treaty, in Council Directive
75/117/EEC of 10 February 1975 on the approx-
imation of the laws of the Member States relating to
the application of the principle of equal pay for men
and women (4) 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 (5);

(9) Whereas Council Directive 92/85/EEC of 19
October 1992 on the introduction of measures to
encourage improvements in the safety and health at
work of pregnant workers and workers who have
recently given birth or are breastfeeding (6) also
contributes to the effective implementation of the
principle of equal treatment for men and women;
whereas that Directive should not work to the detri-
ment of
the aforementioned Directives on equal
female workers
treatment; whereas,
covered by that Directive should likewise benefit
from the adaptation of the rules on the burden of
proof;

therefore,

(4) OJ L 45, 19. 2. 1975, p. 19.
(5) OJ L 39, 14. 2. 1976, p. 40.
(6) OJ L 348, 28. 11. 1992, p. 1.

20. 1. 98

EN

Official Journal of the European Communities

L 14/7

(10) Whereas Council Directive 96/34/EC of 3 June
1996 on the framework agreement on parental leave
concluded by UNICE, CEEP and the ETUC (1), is
also based on the principle of equal treatment for
men and women;

(11) Whereas the references to ‘judicial process' and
‘court' cover mechanisms by means of which
disputes may be submitted for examination and
decision to independent bodies which may hand
down decisions that are binding on the parties to
those disputes;

(12) Whereas

the expression ‘out-of-court procedures'
means in particular procedures such as conciliation
and mediation;

(13) Whereas the appreciation of the facts from which it
may be presumed that
there has been direct or
indirect discrimination is a matter for national judi-
cial or other competent bodies, in accordance with
national law or practice;

(14) Whereas it is for the Member States to introduce, at
any appropriate stage of the proceedings, rules of
evidence which are more favourable to plaintiffs;

(15) Whereas it

is necessary to take account of

the
specific features of certain Member States’
legal
systems, inter alia where an inference of discrim-
ination is drawn if the respondent fails to produce
evidence that satisfies the court or other competent
authority that there has been no breach of the prin-
ciple of equal treatment;

respondent when evidence of such discrimination is
brought;

(19) Whereas it is all the more difficult to prove discrim-
ination when it is indirect; whereas it is therefore
important to define indirect discrimination;

(20) Whereas the aim of adequately adapting the rules on
the burden of proof has not been achieved satisfac-
torily in all Member States and, in accordance with
the principle of subsidiarity stated in Article 3b of
the Treaty and with that of proportionality, that 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:

Article 1

Aim

The aim of this Directive shall be to ensure that the
measures taken by the Member States to implement the
principle of equal treatment are made more effective, in
order to enable all persons who consider themselves
wronged because the principle of equal treatment has not
been applied to them to have their rights asserted by
judicial process after possible recourse to other competent
bodies.

Article 2

Definitions

(16) Whereas Member States need not apply the rules on
the burden of proof to proceedings in which it is for
the court or other competent body to investigate the
thus
facts of
referred to are those in which the plaintiff is not
required to prove the facts, which it is for the court
or competent body to investigate;

the case; whereas

the procedures

(17) Whereas plaintiffs could 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 were not to
impose upon the respondent the burden of proving
that his practice is not in fact discriminatory;

treatment

For the purposes of this Directive, the principle of
1.
equal
there shall be no
discrimination whatsoever based on sex, either directly or
indirectly.

shall mean that

2.
For purposes of the principle of equal treatment
referred to in paragraph 1, indirect discrimination shall
exist 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 justi-
fied by objective factors unrelated to sex.

(18) Whereas the Court of Justice of

the European
Communities has therefore held that the rules on
the burden of proof must be adapted when there is a
prima facie case of discrimination and that, for the
principle of equal treatment to be applied effec-
tively, the burden of proof must shift back to the

1.

(a)

(1) OJ L 145, 19. 6. 1996, p. 4.

Article 3

Scope

This Directive shall apply to:

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;

L 14/8

EN

Official Journal of the European Communities

20. 1. 98

(b) any civil or administrative procedure concerning the
public or private sector which provides for means of
redress under national law pursuant to the measures
referred to in (a) with the exception of out-of-court
procedures of a voluntary nature or provided for in
national law.

2.
This Directive shall not apply to criminal pro-
cedures, unless otherwise provided by the Member States.

Article 4

Burden of proof

in accordance with their national

take such measures as are
1. Member States shall
judicial
necessary,
systems,
to ensure that, when persons who consider
themselves wronged because the principle of equal treat-
ment has not been applied to them establish, before a
court or other competent authority, facts from which it
may be presumed that there has been direct or indirect
discrimination, it shall be for the respondent to prove
that there has been no breach of the principle of equal
treatment.

2.
This Directive shall not prevent Member States from
introducing rules of evidence which are more favourable
to plaintiffs.

3. Member States need not apply paragraph 1 to
proceedings in which it is for the court or competent
body to investigate the facts of the case.

Article 5

Information

Article 6

Non-regression

Implementation of this Directive shall under no circum-
stances be sufficient grounds for a reduction in the
level of protection of workers in the areas to
general
which it applies, without prejudice to the Member States’
right to respond to changes in the situation by intro-
ducing laws, regulations and administrative provisions
which differ from those in force on the notification of
this Directive, provided that the minimum requirements
of this Directive are complied with.

Article 7

Implementation

The Member States shall bring into force the laws, regula-
tions and administrative provisions necessary for them to
comply with this Directive by 1 January 2001. They shall
immediately inform the Commission thereof.

When the Member States adopt those measures they shall
contain a reference to this Directive or shall be accom-
panied by such a reference on the occasion of their offi-
cial publication. The methods of making such references
shall be laid down by the Member States.

The Member States shall communicate to the Commis-
sion, within two years of the entry into force of this
Directive, all the information necessary for the Commis-
sion to draw up a report to the European Parliament and
the Council on the application of this Directive.

Article 8

This Directive is addressed to the Member States.

Done at Brussels, 15 December 1997.

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 the persons
concerned by all appropriate means.

For the Council

The President

J.-C. JUNCKER