Proposal for a Directive of the European Parliament and of the Council amending Council Directive 76/207/EEC 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
Date: 2000-06-07
Institutions: European Commission
Subjects: equal treatment, gender equality, job access, sexual discrimination, working conditions

C 337 E/204

EN

Official Journal of the European Communities

28.11.2000

Proposal for a Directive of the European Parliament and of the Council amending Council
Directive 76/207/EEC 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

(2000/C 337 E/33)

(Text with EEA relevance)

COM(2000) 334 final (cid:15) 2000/0142(COD)

(Submitted by the Commission on 11 July 2000)

THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE
EUROPEAN UNION,

Having regard to the Treaty establishing the European
Community and, in particular, Article 141(3) thereof,

Having regard to the proposal from the Commission,

Having regard to the opinion of
Committee,

the Economic and Social

Acting in accordance with the procedure laid down in Article
251 of the Treaty,

Whereas:

(1) Article 3(2) of the Treaty imposes an obligation to aim to
eliminate inequalities, and to promote equality between
men and women.

(2) The principle of equal

treatment between men and
women is a fundamental principle of Community law as
referred to in Article 141 and in particular in paragraph 3,
which addresses specifically sex discrimination related to
employment and occupation.

(3) In its Resolution of 29 May 1990 on the protection of the
dignity of women and men at work (1),
the Council
affirmed that sexual harassment in the workplace may,
in certain circumstances, be contrary to the principle of
equal treatment within the meaning of Council Directive
76/207/EEC (2). A statement
to that effect should be
included in the Directive
sexual harassment
itself,
usually affects the individual’s work performance and/or
creates an intimidating, hostile or offensive environment.

(4) Directive 76/207/EEC does not define the concept of
It is thus appropriate to insert
indirect discrimination.
such a definition consistent with that of Council
Directive 97/80/EC of 15 December 1997 (3) on the
burden of proof in cases of discrimination based on sex,
as amended by Directive 98/52/EC (4).

(1) OJ C 157, 27.6.1990, p. 3.
(2) OJ L 39, 14.2.1976, p. 40.
(3) OJ L 14, 20.1.1998, p. 6.
(4) OJ L 205, 22.7.1998, p. 66.

(5) The scope of the occupation activities that Member States
seek to exclude from the scope of Directive 76/207/EEC
should be restricted. The extent to which some activities
may not be excluded should be specified in accordance
with the case-law of the Court of Justice of the European
Communities.

(6) The Court of

pregnancy. Council Directive

Justice has consistently recognised the
legitimacy, in terms of the principle of equal treatment,
of protecting a woman’s biological condition during and
after
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 (5), aims
to
ensure the protection of the physical and mental state
of women who are pregnant, women who have recently
given birth or women who are breastfeeding. The recitals
of that Directive provide that the protection of the safety
and health of pregnant workers, workers who have
recently given birth or workers who are breastfeeding
should not treat women who are on the labour market
unfavourably nor work to the detriment of directives
concerning equal
for men and women. The
protection of employment rights of women, in particular
as regards their right to return to work falls within the
scope of Directive 76/207/EEC. That right should be
explicitly guaranteed to women who have recently given
birth.

treatment

(7) The possibility for Member States to maintain or adopt
positive action measures is enshrined in Article 141(4) of
the Treaty. This Treaty provision makes
the existing
Article 2(4) of Directive 76/207/EEC redundant. The
publication of periodical reports by the Commission on
the implementation of the possibility offered by Article
141(4) will help Member States to compare the way it is
implemented and citizens to have a full picture of the
situation existing in each Member State.

(8) The Court of Justice has ruled that, having regard to the
fundamental nature of
to effective judicial
protection, employees enjoy such protection even after
the employment relationship has ended (6).

the right

(5) OJ L 348, 28.11.1992, p. 1.
(6) Case C-185/97 Coote [1998] ECR I-5199.

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Official Journal of the European Communities

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(9) The Court of

to be
Justice has ruled that,
effective, the principle of equal treatment implies that,
whenever it is breached, the compensation awarded to
the employee discriminated against must be adequate in
relation to the damage sustained (1).

in order

(10) To provide a more effective level of protection to workers
who are discriminated against on grounds of
sex,
associations or legal entities should also be empowered
to exercise the rights of defence on behalf or in protection
of any person who considers himself or herself wronged
because the principle of equal treatment has not been
applied to them.

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

(12) Member States should provide for effective, proportionate
and dissuasive sanctions in case of breaches of the obli-
gations under Directive 76/207/EEC.

(13) In accordance with the principles of subsidiarity and
proportionality as set out in Article 5 of the Treaty, the
objectives of the proposed action cannot be sufficiently
achieved by the Member States and can therefore be better
achieved by the Community. This Directive confines itself
to the minimum required in order
to achieve those
objectives and does not go beyond what is necessary for
that purpose.

(14) Directive 76/207/EEC should therefore be

amended

accordingly,

HAVE ADOPTED THIS DIRECTIVE:

Article 1

Directive 76/207/EEC is hereby amended as follows:

1. In Article 1, the following paragraph 1a is inserted:

B1a. Member States shall introduce such measures as are
necessary to enable them actively and visibly to promote the
objective of equality between men and women by its incor-
poration, in particular, into all
laws, regulations, adminis-
trative provisions, policies and activities in the areas referred
to in paragraph 1C.

2. The following Article 1a is inserted

BArticle 1a

hostile,

intimidating,

an
environment,
submission to, such conduct
decision which affects that person.C

disturbing
offensive
in particular if a person’s rejection of, or
is used as a basis for a

or

3. Article 2 is amended as follows:

(a) In pararaph 1, the following subparagraph is added:

criterion

for the purposes of

BIndirect discrimination,
the first
subparagraph, shall exist where an apparently neutral
a
provision,
substantially higher proportion of the members of one
sex unless that provision, criterion or practice is appro-
priate and necessary and can be justified by objective
factors unrelated to sex.C

disadvantages

practice

or

(b) Paragraph 2 is replaced by the following:

that a difference of

B2. Member States may provide, as regards access to
employment,
treatment which is
based on a characteristic related to sex shall not
the
constitute discrimination where, by reason of
nature
activities
particular
concerned or of the context in which they are carried
out, such a characteristic constitutes a genuine occupa-
tional requirement.

occupational

the

of

Derogations to the principle of equal treatment shall
remain within the limits of what is appropriate and
necessary in order to achieve the aim in view.C

(c) In paragraph 3, the following subparagraph is added:

BA woman who has given birth shall be entitled, after the
end of her period of maternity leave, to return to her
job or to an equivalent post with no change in her
working conditions.C

(d) Paragraph 4 is replaced by the following:

On the basis of

B4.
the information provided by
Member States pursuant to Article 9, the Commission
will adopt and publish every three years a report estab-
lishing a
the positive
measures adopted by the Member States pursuant to
Article 141(4) of the Treaty.C

assessment of

comparative

4. In Article 3(2), the following paragraph (d) is added:

Sexual harassment shall be deemed to be discrimination on
the grounds of sex at the workplace when an unwanted
conduct related to sex takes place with the purposes or
effect of affecting the dignity of a person and/or creating

(1) Case C-180/95 Draehmpaeh [1997] ECR I-2195.

B(d) any provision contrary to the principle of equal
treatment concerning membership of and involvement
in an organisation of workers or employers, or any
organisation whose members carry on a particular
profession, including the benefits provided for by such
organisations shall be declared null and void or may be
amended.C

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28.11.2000

5. Article 6 is replaced by the following:

BArticle 6

1. Member States shall introduce into their national legal
systems such measures as are necessary to enable all persons
who consider themselves wronged by failure to apply to
them the principle of equal treatment within the meaning
of Articles 3, 4, and 5 to pursue their claims by judicial
process after possible recourse to other competent auth-
orities, even after the employment relationship has ended.

2. Member States shall introduce into their national legal
systems such measures as are necessary to ensure that
reparation for the loss and damage sustained by a person
injured as a result of discrimination contrary to Articles 3, 4
or 5 may not be limited by an upper limit fixed a priori or
by excluding an award of interest to compensate for the loss
sustained by the recipient of the compensation as a result of
the lapse of time until actual payment of the capital sum
awarded.C

6. The following Article 8a, 8b and 8c are inserted:

BArticle 8a

1. Member States shall provide for an independent body
for the promotion of
treatment
between women and men. This body may form part of
independent, pre-existing agencies charged at national level
with, in particular, the safeguard of individuals’ rights.

the principle of equal

2. Member States shall ensure that the functions of the
independent bodies referred to in paragraph 1 include
receiving and pursuing complaints
from individuals of
discrimination on grounds of sex, starting investigations
or surveys concerning discrimination on grounds of sex
and publishing reports on issues relating to discrimination
based on sex.

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

Article 8b

shall

take adequate measures

1. Member States
to
promote the social dialogue between the two sides of
industry with a
treatment,
including through the monitoring of workplace practices,
collective
research or
conduct,
codes of
exchange of experiences and good practices.

view to fostering equal

agreements,

shall encourage the two sides of
2. Member States
industry without prejudice to their autonomy to conclude
agreements, at
laying down anti-
discrimination rules in the field of equality of treatment
between women and men.

the appropriate level,

Article 8c

shall

to infringments of

to this Directive, and shall

lay down the rules or penalties
Member States
the national provisions
applicable
adopted pursuant
take all
measures necessary to ensure that they are implemented.
The penalties provided for must be effective, proportionate
shall notify those
and dissuasive. The Member States
provisions to the Commission by 31 December 2001 at
the latest and shall notify it without delay of any subsequent
amendment affecting them.C

Article 2

1. Member States shall bring into force the laws, regulations
and administrative provisions necessary to comply with this
Directive by 31 December 2001 at the latest or shall ensure,
by that date at
that management and labour
introduce the requisite provisions by way of agreement.

the latest,

Member States shall take all necessary steps to enable them-
selves at all times to guarantee the results imposed by this
Directive. They shall
immediately inform the Commission
thereof.

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

States

The Member

communicate
the
2.
shall
the entry into force of
Commission, within three years of
this Directive,
the
all
Commission to draw up a report to the European Parliament
and the Council on the application of this Directive.

information necessary

the

for

to

3. Without prejudice to paragraph 2, Member States shall
communicate to the Commission, every three years, the texts
of laws, regulations and administrative provisions of positive
measures adopted pursuant to Article 141(4) of the Treaty.

Article 3

This Directive is addressed to the Member States.