Proposal for a COUNCIL DIRECTIVE ESTABLISHING A GENERAL FRAMEWORK FOR EQUAL TREATMENT IN EMPLOYMENT AND OCCUPATION
Date: 1999-11-25
Institutions: European Commission
Subjects: EC Directive, anti-discriminatory measure, equal treatment, gender equality, labour market

C 177 E/42

EN

Official Journal of the European Communities

27.6.2000

Proposal

for a Council Directive establishing a general

framework for equal

treatment

in

employment and occupation

(2000/C 177 E/07)

(Text with EEA relevance)

COM(1999) 565 final (cid:151) 1999/0225(CNS)

(Submitted by the Commission on 6 January 2000)

THE COUNCIL OF THE EUROPEAN UNION,

Having regard to the Treaty establishing the European
Community, and in particular Article 13 thereof,

Having regard to the proposal from the Commission,

Having regard to the opinion of the European Parliament,

Having regard to the opinion of
Committee,

the Economic and Social

Having regard to the opinion of the Committee of Regions,

Whereas:

(1) The European Union is founded on the principles of
liberty, democracy, respect for human rights and funda-
mental freedoms, and the rule of law, principles which are
common to all Member States. In accordance with Article
6(2) of the Treaty on European Union, the Union should
respect fundamental rights as guaranteed by the European
the protection of Human Rights and
Convention for
of
general
Fundamental
Community law.

Freedoms,

principles

as

(2) Article 13 of

the Treaty establishing the European
Community empowers the Council to take appropriate
actions to combat discrimination based on sex, racial or
ethnic origin, religion or beliefs, disability, age or sexual
orientation.

(3) The principle of equal treatment on grounds of sex is well
established by a considerable body of Community law, in
particular in Council Directive 76/207/EEC of 9 February
1976 on the implementation of the principle of equal
for men and women as regards access to
treatment
training and promotion, and
employment, vocational
conditions (1). The Treaty
the
working
European Community empowers the Council
to adopt
measures to ensure the application of the principle of
eqal opportunities and equal
treatment of men and
women in matters of employment and occupation.

establishing

(1) OJ L 39, 14.2.1976, p. 40.

(4) The right to equality before the law and protection against
discrimination for all persons constitutes a universal right
recognised by the Universal Declaration of Human Rights,
UN Covenants on Civil and Political Rights and on
Economic Social and Cultural Rights, of which all
Member States are signatories; whereas ILO Convention
No 111 prohibits
field of
employment and occupation.

discrimination in the

(5) The Community Charter of the Fundamental Social Rights
of Workers recognises the importance of combating every
form of discrimination, including the need to take appro-
priate action for the social and economic integration of
elderly and disabled people.

(6) The Treaty establishing the European Community includes
among its objectives
the promotion of coordination
between employment policies of the Member States. To
this end, a new employment chapter was incorporated in
the Treaty establishing the European Community, as a
means of developing a coordinated European strategy
for employment
trained and
adaptable workforce.

to promote a skilled,

(7) The 1999 Employment Guidelines agreed by the European
Council at Vienna on 11 and 12 December 1998 stress
the need to foster conditions for a more active partici-
pation in the labour market by formulating a coherent set
of policies aimed at combating discrimination on grounds
of disability and race or ethnic origin. The European
Council Conclusions of Vienna emphasise the need to
pay particular attention to supporting older workers, in
order to increase their participation in the labour force.

(8) Employment and occupation are key elements in guaran-
teeing equal opportunities for all and strongly contribute
to the full participation of citizens in economic, cultural
and social life.

(9) Discrimination based on racial or ethnic origin, religion or
belief, disability, age or sexual orientation may undermine
the achievement of the objectives of the Treaty estab-
lishing the European Community,
the
attainment of a high level of employment and of social
the raising of
protection,
living and
quality of
life, economic and social cohesion and soli-
darity, and the fostering of the free movement of persons.

the standard of

in particular

27.6.2000

EN

Official Journal of the European Communities

C 177 E/43

(10) To this end any direct or indirect discrimination based on
racial or ethnic origin, religion or belief, disability, age or
sexual orientation as regards the areas covered by this
Directive
the
Community. Harassment which produces an intimidating,
hostile, offensive or distribuing work environment
in
relation to any discriminatory ground should be deemed
to be discrimination.

throughout

prohibited

should

be

any

that

laws,

(20) Member States should take the necessary measures to
ensure
administrative
provisions, collective agreements, internal rules of under-
takings or
rules governing independent occupations,
professions, or trade organisations which are contrary to
the principle of equal treatment should be declared null
and void, or should be amended.

regulations,

(11) The provision of measures to accommodate the needs of
disabled people at the workplace play an important role in
combating discrimination on grounds of disability.

(21) Member States should provide for effective, proportionate
and dissuasive sanctions in case of breaches of the obli-
gations under this Directive.

(12) A difference of treatment may be justified where a char-
acteristic related to a discriminatory ground constiutes a
genuine occupational qualification.

(13) The European Union in its Declaration on the status of
churches and non-confessional organisations, attached to
the Amsterdam Treaty, has explicitly recognised that it
status which
respects
churches
communities
enjoy in the Member States under national law and that
it
status of philosophical and
non-confessional organisations.

and does not prejudice
and religious

the
associations or

equally respects

the

(14) The prohibition of discrimination should be without
prejudice to the maintenance or adoption of measures
providing for specific adventages to prevent, reduce or
eliminate inequalities associated with the abovementioned
discriminatory grounds.

(15) The provisions of

this Directive lay down minimum
requirements, thus giving the Member States the option
of introducing or maintaining more favourable provisions.
The implementation of this Directive should not serve to
justify any regression in relation to the situation which
already prevails in each Member State.

(16) It is important to ensure that persons who have been
legal
subject to discrimination have adequate means of
protection. Associations or legal entities must also be
empowered to exercise the right of defence on behalf of
any victim.

(22) In accordance with the principles of subsidiarity and
proportionality as set out in Article 5 of the Treaty estab-
lishing the European Community, the objectives of this
Directive, namely the creation, within the Community,
of a level playing-field as regards equality in employment
and occupation, cannot be sufficiently achieved by the
Member States and can therefore, by reason of the scale
and impact of the proposed action, be better achieved by
to the
the Community. This Directive confines itself
minimum required in order to achieve those objectives
and does not go beyond what
that
purpose,

is necessary for

HAS ADOPTED THIS DIRECTIVE:

CHAPTER I

GENERAL PROVISIONS

Article 1

Purpose

into effect

this Directive is to put

in the
The purpose of
treatment as regards
Member States the principle of equal
including promotion,
access to employment and occupation,
vocational training, employment conditions and membership
of certain organisations, of persons irrespective of racial or
ethnic origin, religion or belief, disability, age or sexual orien-
tation.

Article 2

Concept of discrimination

(17) The effective implementation of the principle of equality
requires adequate judicial protection in civil matters
against victimisation and an adjustment of the general
rules on the burden of proof.

1.
For the purposes of this Directive, the principle of equal
treatment shall mean that there shall be no direct or indirect
discrimination whatsoever between persons on any of
the
grounds referred to in Article 1.

(18) Member States should provide adequate information on

the provisions adopted pursuant to this Directive.

2.

For the purposes of paragraph 1:

(19) Member States should promote social dialogue between
the social partners to address different forms of discrimi-
nation in the workplace and to combat them.

(a) direct discrimination shall be taken to occur where, on any
of
the grounds referred to in Article 1, one person is
treated less favourably than another is, has been or would
be treated.

C 177 E/44

EN

Official Journal of the European Communities

27.6.2000

(b) indirect discrimination shall be taken to occur where an
apparently neutral provision, criterion or practice is liable
to affect adversely a person or persons to whom any of the
grounds
that
provision, criterion or practice is objectively justified by a
legitimate aim and the means of achieving it are appro-
priate and necessary.

referred to in Article 1 applies, unless

Harassment of a person related to any of the discrimi-
3.
natory grounds and areas referred to in Article 1 which has the
purpose or effect of cerating an intimidating, hostile, offensive
or disturbing environment, shall be deemed to be discrimi-
nation within the meaning of paragraph 1.

2. Member States may provide that, in the case of public or
private organisations which pursue directly and essentially the
aim of ideological guidance in the field of religion or belief
with respect to education, information and the expression of
opinions, and for the particular occupational activities within
those organisations which are directly and essentially related to
that aim, a difference of treatment based on a relevant char-
acteristic related to religion or belief shall not constitute
discrimination where, by reason of
these
activities, the characteristic constitutes a genuine occupational
qualification.

the nature of

Article 5

Justification of differences of treatment on grounds of age

4.
In order to guarantee compliance with the principle of
equal treatment for persons with disabilities, reasonable accom-
to enable such
modation shall be provided, where needed,
to, participate in, or advance in
persons
employment, unless
an undue
hardship.

to have access

requirement

creates

this

treatment,

(a) of Article 2(2),

the following
Notwithstanding point
in particular, shall not constitute
differences of
direct discrimination on grounds of age, if they are objectively
and reasonably justified by a legitimate aim and are appropriate
and necessary to the achievement of that aim:

Article 3

Material scope

(a) the prohibition on access to employment or the provision of
special working conditions to ensure the protection of
young people and older workers;

This Directive shall apply to:

(a) conditions for access to employment, self-employment and
including selection criteria and recruitment
occupation,
conditions, whatever the sector or branch of activity and
at all
including
promotion;

the professional hierarchy,

levels of

(b) access to all types and to all levels, of vocational guidance,
training and

advanced vocational

training,

vocational
retraining;

(c) employment and working conditions, including dismissals

and pay;

(d) membership of and involvement

in an organisation of
workers or employers, or any other organisation whose
members carry on a particular profession,
including the
benefits provided for by such organisations.

Article 4

Genuine occupational qualifications

1.
Notwithstanding Article 2(1) and (2), Member States may
provide that a difference of treatment which is based on a
the discriminatory grounds
characteristic related to any of
referred to in Article 1 shall not constitute discrimination
where, by reason of the nature of the particular occupational
activities concerned or of the context in which they are carried
out, such a characteristic constitutes a genuine occupational
qualification.

(b) the fixing of a minimum age as a condition of eligibility for

retirement or invalidity benefits;

(c) the fixing of different ages for employees or groups or
categories of employees for entitlement
to retirement or
invalidity benefits on grounds of physical or mental occu-
pational requirements;

(d) the fixing of a maximum age for recruitment which is based
on the training requirements of the post in question or the
need for a reasonable period of
employment before
retirement;

(e) the establishment of requirements concerning the length of

professional experience;

(f) the establishment of age limits which are appropriate and
legitimate labour market

the pursuit of

necessary for
objectives.

Article 6

Positive action

This Directive shall be without prejudice to the right of the
Member States to maintain or adopt measures intended to
prevent or compensate for disadvantages concerning persons
to whom any of the discriminatory grounds referred to in
Article 1 apply.

27.6.2000

EN

Official Journal of the European Communities

C 177 E/45

Article 7

Minimum requirements

1. Member States may introduce or maintain provisions
which are more favourable to the protection of the principle
of equal treatment than thos laid down in this Directive.

The implementation of

2.
this Directive shall under no
circumstances constitute grounds for a reduction in the level
of protection against discrimination already afforded by
Member States in the fields covered by this Directive.

CHAPTER II

REMEDIES AND ENFORCEMENT

Article 8

Defence of rights

1. Member States shall ensure that judicial and/or adminis-
trative procedures for the enforcement of obligations under this
Directive are available to all persons who consider themselves
wronged by failure to apply the principle of equal treatment to
them, even after the employment relationship has ended.

2. Member States shall ensure that associations, organi-
sations or other legal entities may pursue any judicial and/or
administrative procedure provided for the enforcement of obli-
gations under this Directive on behalf of the complainant with
his or her approval.

Article 9

Burden of proof

1. Member States shall take such measures as are necessary,
in accordance with their national
judicial systems, to ensure
that, when persons who consider themselves wronged because
the principle of equal treatment 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
it shall be for the respondent to
or indirect discrimination,
prove that
the principle of
equal treatment.

there has been no breach of

2.
Paragraph 1 shall not prevent Member States from intro-
ducing rules of evidence which are ore favourable to plaintiffs.

Paragraph 1 shall not apply to criminal procedures,

3.
unless otherwise provided by the Member States.

Paragraphs 1, 2 and 3 shall

4.
proceedings commenced in accordance with Article 8(2).

apply to any legal

dismissal or other adverse treatment by the employer as a
reaction to a complaint within the undertaking or to any
legal proceedings aimed at enforcing compliance with the
principle of equal treatment.

Article 11

Dissemination of information

1. Member States shall ensure that adequate information on
the provisions adopted pursuant to this Directive is provided to
vocational training and educational bodies and is adequately
disseminated within the workplace.

2. Member States shall ensure that competent public auth-
orities are informed by appropriate means as regards all
national measures taken pursuant to this Directive.

Article 12

Social dialogue

1. Member States shall take adequate measures to promote
the social dialogue between the two sides of industry with a
view to fostering equal treatment, through the monitoring of
workplace practices, collective agreements, codes of conduct,
research or exchange of experiences and good practices.

the
2. Member States shall encourage the two sides of
industry to conclude, at the appropriate level,
including at
undertaking level, agreements laying down anti-discrimination
rules in the fields referred to in Article 3 which fall within the
scope of collective bargaining. These agreements shall respect
this Directive and the relevant national implementing measures.

CHAPTER III

FINAL PROVISIONS

Article 13

Compliance

Member States shall take the necessary measures to ensure that:

(a) any laws, regulations and administrative provisions contrary

to the principle of equal treatment are abolished;

Article 10

Victimisation

Member States shall introduce into their national legal systems
such measures as are necessary to protect employees against

(b) any provisions contrary to the principle of equal treatment
individual
which are included in collective agreements,
internal rules of undertakings
contracts of employment,
or
rules governing the independent occupations and
professions and workers’ and employers’ organisations, are
declared null and void or are amended.

C 177 E/46

EN

Official Journal of the European Communities

27.6.2000

Article 14

Penalties

Member States shall determine how such reference is to be
made.

Member States shall lay down the rules on penalties applicable
to infringements of the national provisions adopted pursuant to
this Directive and shall take all measures necessary to ensure
that they are implemented. The penalties provided for must be
effective, proportionate and dissuasive. The Member States shall
notify those provisions to the Commission by the date specified
in Article 15 at the latest and shall notify it without delay of
any subsequent amendment affecting them.

Article 16

Report

the date mentioned in Article 15, all

Member States shall communicate to the Commission, within
two years of
the
the Commission to draw up a
information necessary for
report to the European Parliament and the Council on the
application of this Directive.

Article 15

Implementation

Article 17

Entry into force

Member States shall adopt the laws, regulations and adminis-
trative provisions necessary to comply with this Directive by
31 December 2002. They
forthwith inform the
Commission thereof.

shall

When Member States adopt those provisions, they shall contain
a reference to this Directive or be accompanied by such a
their official publication.
reference on the occasion of

This Directive shall enter into force on the twentieth day
following that of its publication in the Official Journal of the
European Communities.

Article 18

Addressees

This Directive is addressed to the Member States.