Opinion of the Economic and Social Committee on the "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: 2001-01-25
Institutions: European Economic and Social Committee
Subjects: equal treatment, gender equality, job access, promotion, vocational training, working conditions

25.4.2001

EN

Official Journal of the European Communities

C 123/81

Opinion of the Economic and Social Committee on the ‘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’

(2001/C 123/21)

On 25 July 2000 the Council decided to consult the Economic and Social Committee, under Article 262
of the Treaty establishing the European Community, on the above-mentionned proposal.

The Section for Employment, Social Affairs and Citizenship, which was responsible for preparing the
Committee’s work on the subject, adopted its opinion on 5 December 2000. The rapporteur was
Ms Wahrolin.

At its 378th plenary session (meeting of 25 January 2001) the Economic and Social Committee adopted
the following opinion by 68 votes to 11, with six abstentions.

1.

Introduction

1.1.
In presenting its proposal amending Council Directive
76/207/EEC (1) the Commission’s purpose is to promote equal
participation of women and men in the labour market and to
remove further obstacles to women in employment.

The Commission’s proposal is based on Article 141(3)
1.2.
of the Treaty, which empowers the Community to adopt
measures to ensure the application of equal treatment of men
and women in matters of employment and occupation, and
on Treaty Article 141(4), which reiterates that Member States
have a duty to adopt measures to ensure that this principle is
implemented. The proposal seeks to define terms, reinforce
protection of individuals lodging complaints, clarify the scope
for exemption from certain principles, boost positive action
measures to promote equality and safeguard special protection
for women on grounds of pregnancy and maternity.

lodging complaints of discrimination, even when the employ-
ment relationship has ended, and lays down guidelines for the
independent national bodies to promote the principle of equal
treatment. It clarifies the Member States’ powers to provide for
exemptions from the principle of equal access to employment,
while requiring Member States to substantiate bans on
forms of work.
employing one or other sex in special
The proposal specifies and guarantees special protection for
women on grounds of pregnancy and maternity, including
their right to return to the same workplace after maternity
leave. Lastly, Treaty Article 141(4) is incorporated, whereby
Member States are entitled to adopt positive action measures
to promote full equality for women and men at work.

The proposal also highlights the role of the social

1.5.
partners in implementing the principle of equal treatment.

The proposal spells out the Member States’ obligations
1.3.
in practical terms and takes account of Court of Justice case-
law over the past 25 years.

2. General comments

1.4.
For the first time, clear-cut definitions are provided in
this proposal of sexual harassment and discrimination based
on sex in the workplace; these definitions are based on, and
consistent with, the definitions to be found in the proposed
directives based on Article 13, dealing with harassment as
discrimination based on other grounds as well as sex. In
addition, the proposal introduces protection for employees

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

2.1.
The Economic and Social Committee broadly wel-
comes the changes proposed by the Commission and would
particularly stress how important it is that, for the first time,
is now being given
the definition of sexual harassment
directive form and that the definition per se clearly states that
discrimination based on sex at the work place is the issue. This
makes it clear that it is always the employer’s responsibility to
prevent and deter sexual harassment in the workplace. At the
same time, it is important — from a legal certainty perspective
— to stress that an employer can only act on a specific case
when it comes to his notice. The sexual harassment problem
is a major, sensitive issue which can no longer be ignored and
needs to be tackled at EU level. In addition, the Committee
applauds the greater legal certainty resulting from the Direc-
tive’s reference to Court of Justice case-law.

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The Committee supports the thrust of

2.2.
the Com-
mission’s proposal, which is fully consistent with longstanding
efforts and social and legal developments in the Community
and the Member States. It agrees with the Commission that
application of a Community legal decision is in accordance
with the principles of subsidiarity and proportionality.

The Committee would welcome a proposal based on

2.3.
Treaty Article 13 which also includes other areas.

2.4.
The Committee regrets that the Commission did not
formally consult the social partners at European level, as
provided for in the social chapter of the Treaty, before it
presented the new draft directive.

The Committee’s comments on specific articles in the

2.5.
Commission proposal are set out below.

3.

Specific comments

Article 1

Article 1 contains all the proposed amendments to Council
Directive 76/207/EEC.

3.1. First amendment: insertion of a new paragraph in Article 1

The Committee supports the Commission’s proposal which
adapts the Directive to Article 3 of the Treaty.

3.2. Second amendment: a new Article 1a

The Committee welcomes the Commission’s proposal, which
states explicitly that sexual harassment constitutes discrimi-
nation on the grounds of sex. The EU institutions have taken a
number of different initiatives in recent years to prevent and
combat sexual harassment at the workplace. Surveys show
that sexual harassment is a widespread problem and that
preventive action must be taken in the workplace, in both the
individual’s and the firm’s interests. The European social
partners have unanimously confirmed the importance of
safeguarding the individual worker’s integrity and dignity;
however,
their views differ as to which instruments can
suitably be applied at European level. The Community has
long taken the position that sexual harassment violates the
principle of equal treatment and encroaches on the dignity of

women and men in the workplace. It is highly satisfactory that
now for the first time, a Directive explicitly states that sexual
harassment constitutes discrimination on grounds of sex in
the workplace.

The definition proposed by the Commission is based on its
own code of practice (1) and is tailored to tally with the
definitions based on Article 13, covering harassment on other
grounds than sex. On the whole the Committee has no
objections to the proposed definition but would prefer the
draft text to refer to a ‘humiliating’, rather than a ‘disturbing’,
environment, which would be fully consistent with the EU
code of practice.

The Committee regrets that the Commission’s proposal con-
tains no reference to the employers’ responsibility to create
a working environment free from sexual harassment. The
Committee believes that it is important to establish a policy of
prevention in the workplace as was laid down in the 1991
code of practice, and suggests that the following wording be
added to Article 1a:

‘It is the employers’ responsibility to create a working environ-
ment free from sexual harassment’.

3.3. Third amendment: insertion of a subparagraph in Article 2(1)

The Committee welcomes the Commission’s proposal
to
introduce a definition of the concept ‘indirect discrimination’,
but feels that the definition should be reworded to make it
consistent and in line with the racial discrimination Directive
and with other Directives based on Article 13 of the Treaty.

3.4. Fourth amendment: new Article 2(2)

The Committee agrees with the limited exception from the
discrimination rules, based on ‘genuine occupational require-
ments’. This exception should be reviewed regularly by the
Member States and independent bodies so as to justify whether
it should be retained or abolished.

However, the Committee would suggest that the Commission,
in addition to what is stated in the directive, should also take
up the matter of positive action so as to be as clear and specific
as possible, regardless of the fact that this point is regulated by
other texts.

(1) European Commission 1993: Measures to combat sexual harass-

ment; guidelines for a Commission code of practice.

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3.5. Fifth amendment: addition to Article 2(3)

The Committee supports the Commission’s proposal to state
specifically that a woman who has given birth has the right to
return to her job, or to an equivalent post, but regards the
phrase ‘with the same working conditions’ as too inflexible
and rigid. In its view, a better and more elastic wording would
be ‘under no less favourable working conditions’. Working life
is constantly changing and the proposed wording ‘with the
same working conditions’ will be excessively restrictive.

The right to a job and to earn a living is a key factor in
ensuring equality between women and men. This is fully in
line with both the EU’s employment strategy and with the
conclusions of the Lisbon Summit. It is quite clear that women
must enter the labour market if the EU is to achieve the
economic growth needed to sustain its social — and not least
pension — systems. Equality is vital for productivity in Europe,
where older people form an increasingly high proportion of
the population. If Europe is to preserve social protection
standards, women must be able to contribute to the economy
through paid employment. The right to return to work under
no less favourable conditions is an important
factor in
planning family life, and in particular combining a job
with family life, besides being a natural complement to the
provisions of the maternity Directive 92/85/EEC (1). The ESC
calls on the Commission to undertake a review of the maternity
directive 92/85/EEC, in line with the new ILO convention on
Maternity (Convention 183). The ESC considers that the issue
of returning to work under no less favourable conditions
should also be included.

The Committee applauds the Directive’s reflection of Court of
Justice case-law.

have referred to reporting in connection with the publication
of the Commission’s first report on equality. The publication
of regular Commission reports containing a comparative
evaluation of positive action measures adopted by the Member
States will help give the Member States and their populations
some idea of the situation in each individual country. The
structure of these reports will be of major importance. The
Committee recommends that the Commission should focus on
specific comparisons highlighting differences and similarities
between the Member States. There is little point in describing
developments at Community level unless attention is paid to
implementation and compliance with the rules in the Member
States, where everything actually happens.

3.7. Seventh amendment: addition of new paragraph (d)

to

Article 3(2)

The Committee supports the addition proposed by the Com-
mission.

3.8. Eighth amendment:

replacement of original wording of

Article 6

The new wording of Article 6 introduces into the Directive
two important elements of the Court’s case-law regarding
enforcement procedures. The Committee welcomes the Com-
mission’s proposal which helps to ensure effective protection
for the individual, and the fact that the principle of equal
treatment is to have the desired impact.

The Committee would, however, draw the Commission’s
attention to the national rules on periods of
limitation
applicable, for instance, to the time limit for initiating legal
proceedings after cessation of employment. These must not be
rendered invalid by virtue of the directive, provided that they
are not incompatible with other EU legislation.

3.6. Sixth amendment: new Article 2(4)

3.9. Ninth amendment, new Article 8a

The Committee welcomes the thrust of the Commission’s
proposal, which implements Treaty Article 141(1)
in
empowering Member States to adopt positive action measures
to promote equality and requiring them to report regularly on
their activity. Previous ESC proposals(2) and recommendations

(1) Council Directive 92/85/EEC of 19 October 1992 on the introduc-
tion of measures to encourage improvements in the safety and
health of work of pregnant workers and workers who have
recently given birth or are breastfeeding OJ L 348 of 28.11.1992.
(2) Opinion on the Commission’s annual report: Equal opportunities
for women and men in the European Union — 1996 OJ C 296,
29.9.1997.

The Committee supports this proposal, which reinforces the
right to legal protection provided in Article 6.

The Committee is pleased to note the clear guidelines for the
independent bodies to be set up in each Member State and
that the Member States are left free to decide on the structure
and functioning of such bodies in accordance with their legal
traditions and policy choices.

However, the Committee would suggest that point 3 of the
new Article 8 a) be amended in line with the wording of the
directive on racial discrimination and refers to its own opinion
on that subject (3).

(3) OJ C 204, 18.7.2000, p. 82-90.

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3.10. Tenth amendment: new Article 8b

4. Article 2

The Committee welcomes the Commission’s proposal and
highlights
in
implementing equal treatment.

role played by the

social partners

the

The Committee points to the importance of leaving each
Member State free to act on the basis of its own legal traditions
and policy choices. It is important to make progress in this
area. It would therefore be most helpful to require the Member
States,
in their reports to the Commission, specifically to
record how they have proceeded in their drive, in liaison with
the social partners, to implement equal treatment.

3.11. New Article 8c

The Committee supports the Commission’s proposal.

Brussels, 25 January 2001.

4.1.
The Committee has no objection to the Commission’s
proposal but recommends that the deadline by which the
Member States are to implement the laws and other provisions
required for purposes of this directive should be adapted to
the date of decision so as to give the Member States at least
one year to adopt national measures.

5. Conclusion

One of the European Union’s most vital tasks is to combat
discrimination in any form.

Despite the fact that demographic patterns make it urgent for
as high a percentage as possible of the population of active age
to be in employment, discrimination of various kinds persists
on the labour market.

The present proposal amending 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, opens the
way for further action to implement the above principle.

The President

of the Economic and Social Committee

Göke FRERICHS

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APPENDIX

to the Opinion of the Economic and Social Committee opinion

The following amendment was defeated during the debate but secured at least one-quarter of the votes cast:

Point 3.5, Paragraph 1

The original wording of the Commission ‘... with the same working conditions’ should be maintained in place of the
proposed amendment ‘... with no less favourable working conditions’.

Reason

Self-evident.

Result of the vote

For: 30, against: 48, abstentions: 7.