Common Position (EC) No 32/2001 of 23 July 2001 adopted by the Council, acting in accordance with the procedure referred to in Article 251 of the Treaty establishing the European Community, with a view to adopting 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 (Text with EEA relevance.)
Date: 2001-07-23
Institutions: Council of the European Union
Subjects: EC Directive, equal treatment, gender equality, job access, vocational training, working conditions

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COMMON POSITION (EC) No 32/2001

adopted by the Council on 23 July 2001

with a view to adopting Directive 2001/.../EC of the European Parliament and of the Council of ...
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

(Text with EEA relevance)

(2001/C 307/02)

THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE
EUROPEAN UNION,

Having regard to the Treaty establishing the European Com-
munity and, in particular, Article 141(3) 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 251 of the Treaty (3),

Whereas:

(1)

(2)

In accordance with Article 6 of the Treaty on European
Union, the European Union is founded on the principles
of liberty, democracy, respect for human rights and
fundamental freedoms, and the rule of law, principles
which are common to the Member States, and shall
respect fundamental rights as guaranteed by the Euro-
pean Convention for the Protection of Human Rights
and Fundamental Freedoms and as they result from the
constitutional traditions common to the Member States,
as general principles of Community law.

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, the United Nations Convention on
the Elimination of all forms of Discrimination Against
Women, the International Convention on the Elimin-
ation of all Forms of Racial Discrimination and the
United Nations Covenants on Civil and Political Rights
and on Economic, Social and Cultural Rights and by the
Convention for the Protection of Human Rights and
Fundamental Freedoms, to which all Member States are
signatories.

(3)

(4)

(5)

(6)

(7)

This Directive respects the fundamental rights and
observes the principles recognised in particular by the
Charter of Fundamental Rights of the European Union.

Equality between women and men is a fundamental
principle, under Articles 2 and 3(2) of the EC Treaty and
the case-law of
Justice. These Treaty
provisions proclaim equality between women and men
as a ‘task’ and an ‘aim’ of the Community and impose a
positive obligation to ‘promote’ it in all its activities.

the Court of

Article 141 of the Treaty, and in particular paragraph 3,
addresses specifically equal opportunities and equal
treatment of men and women in matters of employment
and occupation.

Council Directive 76/207/EEC (4) does not define the
concepts of direct or indirect discrimination. On the
basis of Article 13 of the Treaty, the Council adopted
Directive 2000/43/EC of 29 June 2000 implementing
the principle of equal treatment between persons irres-
pective of racial or ethnic origin (5) and Directive
2000/78/EC of 27 November 2000 establishing a
general framework for equal treatment in employment
and occupation (6) which define direct and indirect
discrimination. Thus it is appropriate to insert definitions
consistent with these Directives in respect of sex.

This Directive does not prejudice freedom of association,
including the right to establish unions with others and
to join unions to defend one’s interests. Measures within
the meaning of Article 141(4) of the Treaty may include
membership or the continuation of
the activity of
organisations or unions whose main objective is the
promotion, in practice, of the principle of equal treat-
ment between women and men.

(1) OJ C 337 E, 28.11.2000, p. 204.
(2) OJ C 123, 25.4.2001, p. 81.
(3) Opinion of the European Parliament of 31 May 2001 (not yet
published in the Official Journal), Council Common Position of
23 July 2001 and Decision of the European Parliament of ... (not
yet published in the Official Journal).

(4) OJ L 39, 14.2.1976, p. 40.
(5) OJ L 180, 19.7.2000, p. 22.
(6) OJ L 303, 2.12.2000, p. 16.

(8)

(9)

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Harassment related to the sex of a person and sexual
harassment are contrary to the principle of equal
it is therefore
treatment between women and men;
appropriate to define such concepts and to prohibit
such forms of discrimination. To this end it must be
emphasised that these forms of discrimination occur not
only in the workplace, but also in the context of
access to employment and vocational training, during
employment and occupation.

who are on the labour market unfavourably nor work
to the detriment of Directives concerning equal treat-
ment for men and women. The Court of Justice has
recognised the protection of employment rights of
women, in particular their right to return to the same or
an equivalent job, with no less favourable working
conditions, as well as to benefit from any improvement
in working conditions to which they would be entitled
during their absence.

the facts from which it may
The appreciation of
be inferred that
there has been direct or indirect
discrimination is a matter for national judicial or other
competent bodies, in accordance with rules of national
law or practice. Such rules may provide in particular for
indirect discrimination to be established by any means
including on the basis of statistical evidence. According
to the case-law of the Court of Justice (1), discrimination
involves the application of different rules to a compar-
able situation or the application of the same rule to
different situations.

(10) The occupational activities that Member States may
exclude from the scope of Directive 76/207/EEC should
be restricted to those which necessitate the employment
of a person of one sex by reason of the nature of the
particular occupational activities concerned, provided
that the objective sought is legitimate, and subject to the
principle of proportionality as laid down by the case-
law of the Court of Justice (2).

(11) The Court of Justice has consistently recognised the
legitimacy, in terms of the principle of equal treatment,
of protecting a woman’s biological condition during and
It has moreover consistently ruled
after pregnancy.
that any unfavourable treatment of women related to
pregnancy or maternity constitutes direct sex discrimi-
nation. This Directive is therefore without prejudice to
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 (10 individual Directive within the mean-
ing of Article 16(1) of Directive 89/391/EEC) (3), which
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 preamble to Directive 92/85/EEC provides that the
protection of the safety and health of pregnant workers,
workers who have recently given birth or workers who
are breastfeeding should not involve treating women

(1) Case C-394/96 Brown,

[1998] ECR I-4185, Case C-342/93

Gillespie, [1996] ECR I-475.

(2) Case C-222/84 Johnston, [1986] ECR 1651, Case C-273/97 Sirdar
[1999] ECR I-7403 and Case C-285/98 Kreil [2000] ECR I-69.

(3) OJ L 348, 28.11.1992, p. 1.

(12)

In the resolution of the Council and of the Ministers for
Employment and Social Policy meeting within the
Council of 29 June 2000 on the balanced participation
of women and men in family and working life (4),
Member States were encouraged to consider examining
the scope for their respective legal systems to grant
working men an individual and untransferable right to
paternity leave, while maintaining their rights relating to
employment. In this context, it is important to stress
that it is for the Member States to determine whether or
not to grant such a right and also to determine any
conditions, other than dismissal and return to work,
which are outside the scope of this Directive.

(13) Article 141(4) of the Treaty enables Member States to
maintain or adopt measures providing for specific
advantages in favour of the under-represented sex; given
the current situation, and bearing in mind Declaration 28
to the Amsterdam Treaty, Member States should, in the
first instance, aim at improving the situation of women
in working life.

(14) The prohibition of discrimination should be without
prejudice to the maintenance or adoption of measures
intended to prevent or compensate for disadvantages
suffered by a group of persons of one sex. Such measures
permit organisations of persons of one sex where their
main object is the promotion of the special needs of
those persons and the promotion of equality between
women and men.

(15) The principle of equal pay for men and women is already
firmly established by Article 141 of the Treaty and
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 (5) and is consistently upheld by the
case-law of the Court of Justice; the principle constitutes
an essential and indispensable part of the acquis commu-
nautaire concerning sex discrimination.

(4) OJ C 218, 31.7.2000, p. 5.
(5) OJ L 45, 19.2.1975, p. 19.

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(16) The Court of Justice has ruled that, having regard to the
fundamental nature of the right to effective judicial
protection, employees enjoy such protection even after
the employment relationship has ended (1).

(23) Directive 76/207/EEC should therefore be amended

accordingly,

(17) The Court of Justice has ruled that,

in order to be
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. It has furthermore
specified that fixing a prior upper limit may preclude
effective compensation and that excluding an award of
interest to compensate for the loss sustained is not
allowed (2).

(18) According to the case law of the Court of Justice,
national rules relating to time limits for bringing actions
are admissible provided that they are not less favourable
than time limits for similar actions of a domestic nature
and that they do not render the exercise of rights
conferred by the Community law impossible in practice.

(19)

Persons who have been subject to discrimination based
on sex should have adequate means of legal protection.
To provide a more effective level of protection, associ-
ations, organisations and other legal entities should also
be empowered to engage in proceedings, as the Member
States so determine, either on behalf or in support of
any victim, without prejudice to national rules of
procedure concerning representation and defence before
the courts.

(20) Member States should promote dialogue between the
social partners and, within the framework of national
practice, with non-governmental organisations
to
address different forms of discrimination based on sex
in the workplace and to combat them.

(21) Member States should provide for effective, proportion-
ate and dissuasive sanctions in case of breaches of the
obligations under Directive 76/207/EEC.

(22)

In accordance with the principle of subsidiarity 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. In accordance with the principle of
proportionality, as set out in that Article, this Directive
does not go beyond what is necessary for that purpose.

HAVE ADOPTED THIS DIRECTIVE:

Article 1

Directive 76/207/EEC is amended as follows:

1.

In Article 1, the following paragraph shall be inserted:

‘1a. Member States shall actively take into account the
objective of equality between men and women when
formulating and implementing laws, regulations, admin-
istrative provisions, policies and activities in the areas
referred to in paragraph 1’.

2. Article 2 is amended as follows:

(a)

In paragraph 1, the following subparagraphs shall
be added:

‘For the purposes of the first subparagraph:

(a)

(b)

direct discrimination shall be taken to occur
where one person is treated less favourably on
grounds of sex than another is, has been, or
would be treated in a comparable situation;

indirect discrimination shall be taken to occur
where an apparently neutral provision, cri-
terion or practice would put persons of one sex
at a particular disadvantage compared with
persons of the other sex, unless that provision,
criterion or practice is objectively justified by a
legitimate aim and the means of achieving that
aim are appropriate and necessary.

Harassment shall be deemed to be discrimination
within the meaning of the first subparagraph when
unwanted conduct related to the sex of a person
takes place with the purpose or effect of violating the
dignity of a person and of creating an intimidating,
hostile, degrading, humiliating or offensive environ-
ment. Sexual harassment, which manifests itself as
unwanted conduct of a sexual nature expressed
physically, verbally or non-verbally, constitutes a
specific form of harassment.

(1) Case C-185/97, Coote [1998] ECR I-5199.
(2) Case C-180/95, Draehmpaehl, [1997] ECR I-2195, Case C271/91,

Marshall [1993] ECR I-4367.

A person’s rejection of, or submission to, such
conduct may not be used as a basis for a decision
affecting that person.

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An instruction to discriminate against persons on
grounds of sex shall be deemed to be discrimination
within the meaning of the first subparagraph.’;

3. Article 3 shall be replaced by the following:

(b) paragraph 2 shall be replaced by the following:

‘Article 3

‘2. Member States may provide, as regards access
to employment including the training leading there-
to, that a difference of treatment which is based on
a characteristic related to sex 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 and determining
occupational requirement, provided that the objec-
is pro-
tive is legitimate and the requirement
portionate.’;

(c)

In paragraph 3, the following subparagraphs shall
be added:

‘A woman on maternity leave shall be entitled, after
the end of her period of maternity leave, to return
to her job or to an equivalent post on terms and
conditions which are no less favourable to her
and to benefit from any improvement in working
conditions to which she would be entitled during
her absence.

This Directive shall also be without prejudice to
the provisions of Council Directive 96/34/EC of
3 June 1996 on the framework agreement on
parental leave concluded by UNICE, CEEP and the
ETUC (*) and of 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 (10th indivi-
dual Directive within the meaning of Article 16(1)
of Directive 89/391/EEC) (**). It is also without
prejudice to the right of Member States to recognise
a distinct right to paternity leave. Those Member
States which recognise such a right shall take the
necessary measures to protect working men against
dismissal due to exercising that right and ensure
that, at the end of such leave, they shall be entitled
to return to their jobs or to equivalent posts on
terms and conditions which are no less favourable
to them.

(*) OJ L 145, 19.6.1996, p. 4.
(**) OJ L 348, 28.11.1992, p. 1.’;

(d) paragraph 4 shall be replaced by the following:

‘4. Member States may maintain or adopt
measures within the meaning of Article 141(4) of
the Treaty with a view to ensuring full equality in
practice between men and women’.

1.
Application of the principle of equal treatment
means that there shall be no direct or indirect discrimi-
nation on the grounds of sex in the public or private
sectors, including public bodies, in relation to:

(a)

(b)

(c)

to self-
conditions for access to employment,
employment or to occupation, including selection
criteria and recruitment conditions, whatever the
branch of activity and at all levels of the professional
hierarchy, including promotion;

access to all types and to all levels of vocational
guidance, vocational training, advanced vocational
training and retraining,
including practical work
experience;

employment and working conditions,
including
dismissals, as well as pay as provided for in Directive
75/117/EEC;

(d) 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.

To that end, Member States shall take the necessary

2.
measures to ensure that:

(a)

(b)

any laws, regulations and administrative provisions
contrary to the principle of equal treatment are
abolished;

any provisions contrary to the principle of equal
treatment which are included in contracts or collec-
tive agreements, internal rules of undertakings or
rules governing the independent occupations and
professions and workers’ and employers’ organis-
ations are, or may be, declared null and void or are
amended’.

4. Articles 4 and 5 shall be deleted.

5. Article 6 shall be replaced by the following:

‘Article 6

1. Member States shall ensure that judicial and/or
administrative procedures, including where they deem it
appropriate conciliation 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 relationship in which the discrimination is alleged to
have occurred has ended.

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2. Member States shall introduce into their national
legal systems such measures as are necessary to ensure a
real and effective compensation or reparation as the
Member States so determine for the loss and damage
sustained by a person injured as a result of discrimination
contrary to Article 3, in a way which is dissuasive and
proportionate to the damage suffered.

(b)

(c)

conducting independent surveys concerning dis-
crimination;

publishing independent reports and making rec-
ommendations on any issue relating to such dis-
crimination.

3. Member States shall ensure that associations, organ-
isations or other legal entities which have, in accordance
law, a
with the criteria laid down by their national
legitimate interest in ensuring that the provisions of this
Directive are complied with, may engage, either on behalf
or in support of
the complainant, with his or her
approval, in any judicial and/or administrative procedure
provided for the enforcement of obligations under this
Directive.

Paragraphs 1 and 3 are without prejudice to
4.
national rules relating to time limits for bringing actions
as regards the principle of equal treatment’.

6. Article 7 shall be replaced by the following Article:

‘Article 7

Member States shall introduce into their national legal
systems such measures as are necessary to protect
employees against dismissal or other adverse treatment
by the employer as a reaction to a complaint within the
undertaking or to any legal proceedings aimed at enforc-
ing compliance with the principle of equal treatment’.

7.

The following Articles shall be inserted:

‘Article 8a

1. Member States shall designate a body or bodies for
the promotion of equal treatment of all persons without
discrimination on the grounds of sex. These bodies may
form part of agencies charged at national level with the
defence of human rights or the safeguard of individuals’
rights.

2. Member States shall ensure that the competences of
these bodies include:

(a) without prejudice to the right of victims and of
associations, organisations or other legal entities
referred to in Article 6(3), providing independent
assistance to victims of discrimination in pursuing
their complaints about discrimination;

Article 8b

1. Member States shall, in accordance with national
traditions and practice, take adequate measures to pro-
mote social dialogue between the social partners with a
view to fostering equal treatment, including through the
monitoring of workplace practices, collective agreements,
codes of conduct, research or exchange of experiences
and good practices.

2. Where consistent with national traditions and prac-
tice, Member States shall encourage the social partners,
without prejudice to their autonomy, to promote equality
between women and men and to conclude, at
the
appropriate level, agreements laying down anti-discrimi-
nation rules in the fields referred to in Article 1 which
fall within the scope of collective bargaining. These
agreements shall respect
the minimum requirements
laid down by this Directive and the relevant national
implementing measures.

Article 8c

Member States shall encourage dialogue with appropriate
non-governmental organisations which have, in accord-
ance with their national law and practice, a legitimate
interest in contributing to the fight against discrimination
on grounds of sex with a view to promoting the principle
of equal treatment.

Article 8d

lay down the rules on sanctions
Member States shall
applicable to infringements of the national provisions
adopted pursuant to this Directive, and shall take all
measures necessary to ensure that they are applied.

The sanctions, which may comprise the payment of
compensation to the victim, must be effective, pro-
portionate and dissuasive. The Member States shall notify
those provisions to the Commission by ... (*) at the latest
and shall notify it without delay of any subsequent
amendment affecting them.

(*) Three years from the date of entry into force of this Directive.

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Article 8e

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

2.
The implementation of 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’.

2.
The Member States shall communicate to the Com-
mission, within three years of the entry into force of this
Directive, all the information necessary for the Commission to
draw up a report to the European Parliament and the Council
on the application of this Directive.

3. Without prejudice to paragraph 2, Member States shall
communicate to the Commission, every five years, the texts of
laws,
regulations and administrative provisions of any
measures adopted pursuant to Article 141(4) of the Treaty. On
the basis of that information, the Commission will adopt and
publish every five years a report establishing a comparative
assessment of any such measures.

Article 2

Article 3

1. Member States shall bring into force the laws, regulations
and administrative provisions necessary to comply with this
Directive by ... (*) at the latest or shall ensure, by that date at
the latest, that management and labour introduce the requisite
provisions by way of agreement. Member States shall take all
necessary steps to enable them 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
reference on the occasion of their official publication. Member
States shall determine how such reference is to be made.

This Directive shall enter into force on the day of its publication
in the Official Journal of the European Community.

Article 4

This Directive is addressed to the Member States.

Done at ...

For the European Parliament

The President

For the Council

The President

(*) Three years from the date of entry into force of this Directive.

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STATEMENT OF THE COUNCIL’S REASONS

I.

INTRODUCTION

1. On 12 July 2000, the Commission submitted to the Council, on the basis of Article 141 of the
Treaty establishing the European Community, a proposal for a Directive of the European
Parliament and of the Council 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.

2. Acting in accordance with Article 251 of the Treaty, the European Parliament delivered its first-

reading opinion on 31 May 2001.

The Economic and Social Committee delivered its opinion on 5 December 2000.

3.

The Commission submitted to the Council, in a letter dated 8 June 2001, an amended proposal
incorporating certain European Parliament amendments.

4. On 11 June 2001, the Council recorded unanimous political agreement on a draft Common

Position.

5.

The Council adopted its Common Position on 23 July 2001, in accordance with Article 250 of
the EC Treaty.

II. OBJECTIVE

The purpose of this proposal is to modernise the provisions of the existing text, which is now
25 years old.

III. ANALYSIS OF THE COMMON POSITION

1.

GENERAL OBSERVATIONS

In its initial proposal the Commission wished to take account of the voluminous case-law of
the Court of Justice of the European Communities, to which some 40 judgments had been
added since Directive 76/207/EEC entered into force, and of the amendments made to the
Treaty with regard to equal treatment for men and women.

When examining the Commission’s initial proposal the Council also took account of the two
Directives it had adopted in June and November 2000 on the basis of Article 13 of the Treaty
relating to non-discrimination (Directives 2000/43/EC and 2000/78/EC). The Council therefore
welcomed the fact that the European Parliament had proposed a number of amendments along
those lines, which the Commission incorporated in its amended proposal.

In many instances the Council was prompted by the wish to have a coherent set of instruments
to combat all the forms of discrimination referred to in Article 13 of the Treaty, and to promote
the principle of equal treatment under Article 141 of the Treaty.

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2.

AMENDMENTS MADE BY THE EUROPEAN PARLIAMENT

The European Parliament adopted 46 amendments.

2.1. European Parliament amendments rejected by the Commission

The Commission did not incorporate eight of Parliament’s amendments in its amended
proposal, namely amendments 4, 16, 23, 27, 36, 44, 45 and 48.

2.2. European Parliament amendments accepted by the Commission

The Commission incorporated 18 of Parliament’s amendments in its amended proposal
in full. The amendments concerned were 12, 13, 14, 18, 20, 22, 24, 26, 29, 31, 32, 34,
35, 38, 41, 47, 58 and 66.

Furthermore, the Commission accepted 20 amendments, either in part or in spirit. These
amendments were: 2, 3, 5, 7, 8, 10, 11, 15, 17, 19, 30, 33, 37, 39, 40, 59, 65, 67, 68
and 70.

2.3. Amendments rejected by the Commission that the Council has incorporated in its

Common Position

The Council accepted part of amendment 7, which refers to comparable situations, and
amendment 45, which provides for the Directive to enter into force on a date later than
that proposed by the Commission: 1 January 2002.

3.

COUNCIL AMENDMENTS TO THE COMMISSION’S AMENDED PROPOSAL

(Unless otherwise stated, the numbering of recitals and paragraphs referred to is that used in the Common
Position).

The Council adopted in full, in spirit if not verbatim, 18 of the 38 amendments wholly or
partly incorporated by the Commission in its amended proposal. The amendments involved
are 2, 3, 5, 8, 10, 11, 13, 15, 20, 29, 30, 37, 38, 40, 47, 59, 67 and 70.

However, the Council did not think it advisable to incorporate amendments 12, 14, 17, 18,
19, 22, 24, 26, 31, 33, 34, 35, 39, 58, 65, 66 and 68 (17 amendments), for the reasons given
below.

3.1. Recital 9: judicial protection (amendment 12)

The Council kept the reference to Court of Justice case law and mentioned the judgment
referred to in a footnote, but it did not think it advisable to retain the details of this
judgment in the body of the recital. Furthermore, Article 7 already provided for people
to be protected against reprisals (dismissal or other) on the part of the employer, as had
been the case in Directives 2000/43/EC and 2000/78/EC).

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3.2. Recital 11 (Commission numbering) and Article 8b: obligation on employers (amendments 14

and 66)

The Council preferred to focus on social dialogue and the autonomy of the two sides of
industry and so did not wish to have employers bear the responsibility for promoting
equality between men and women at the workplace, in particular by drawing up annual
equality reports. In addition, such an obligation might prove extremely burdensome for
small and medium-sized enterprises, which, moreover, would also render the measure
less effective. As a related point, the Council would stress that its Common Position
contains a provision on social dialogue as distinct from the dialogue with NGOs, contrary
to the Commission which, in its amended proposal, seems to amalgamate the two kinds
of dialogue.

3.3. Article 1: employment relationship (amendment 17)

The Council did not think it advisable to amend Article 1 of the existing Directive, in
particular by adding a reference to the ‘legal nature of the relationship under which a
person is employed or occupied,’
in the interests of parallelism with Directive
2000/78/EC.

3.4. Article 1(2): provisions on social security (amendment 18)

The Council did not wish to delete the reference to social security, either by deleting
Article 1(2) of the existing Directive or by omitting the reference to Article 1(1).

3.5. Article 1(1a) (Commission numbering): mainstreaming (amendment 19)

The Council incorporated the obligation on Member States to apply the principle of
mainstreaming when adopting and implementing legislative provisions, policies, etc. and
to actively take into account the objective of equality between women and men, but with
a wording slightly different to those proposed by Parliament and by the Commission.

3.6. Recital 4a and Article 1b: system of confidential counsellors (amendments 58 and 22)

(Commission numbering)

The Council did not wish to incorporate a provision on setting up a system of confidential
counsellors at the workplace, or other measures intended to prevent sexual harassment
at the workplace, as it considered that this measure was far too detailed and was in fact
addressed to employers rather than to the Member States or even the social partners.
Furthermore, in this area as well, the Council was concerned to ensure parallelism with
Directives 2000/43/EC and 2000/78/EC. As sexual harassment was a form of harassment,
rather than a completely separate phenomenon, the Council did not think it appropriate
to set up this kind of specific mechanism.

3.7. Article 2(4): exclusion of persons of one sex from certain professions (amendment 24)

The Council did not wish to incorporate that part of amendment 24 which provided that
any exclusion of, or restriction on, one sex having access to any kind of professional
activity constituted discrimination, as this section contradicted the remainder of the
provision, which provided that certain characteristics related to sex may justify difference
of treatment. Moreover, it should be borne in mind that this provision is identical to that
in Directives 2000/43/EC and 2000/78/EC, and the Council is keen to adopt the same
wording for identical provisions in all three texts, where possible.

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3.8. Article 2(4): reference to the measures provided for in Article 141(4) of the Treaty (amend-

ment 26)

The Council incorporated in the enacting terms a provision relating to the measures
provided for in Article 141(4) of the Treaty. In addition, under Article 2, the Council
provides for mandatory reporting every five years, as a requirement to report every two
years, as provided for in the Commission’s amended proposal, would cause logistical
problems for a number of Member States.

3.9. Article 3(2): reference to the provisions of Article 141(4) of the Treaty (amendment 31)

The Council adopted only part of this amendment by Parliament, as incorporated in the
Commission’s amended proposal, as it did not consider it worthwhile to include the
words ‘and without prejudice to the provisions of Article 141(4) of the Treaty’;
Article 2(4) of the Council Common Position already refers to the option open to the
Member States to adopt or maintain such measures.

3.10. Article 3(2): equal treatment between men and women (amendment 33)

Since the Directive as a whole concerns the implementation of equal treatment between
men and women, the Council did not consider it useful to repeat that the principle of
equal treatment in question was that of equal treatment between men and women. In the
same way, Directives 2000/43/EC and 2000/78/EC referred to the principle of equal
treatment without specifying the groups being compared.

3.11. Articles 4 and 5 of Directive 76/207/EC: ban on provisions contrary to equal treatment

(amendments 34 and 35)

As the Council had merged Articles 3, 4 and 5 into one and deleted Articles 4 and 5 of
the existing Directive, there was no further need to include amendments 34 and 35 in
the Common Position.

3.12. Article 8a: functions of bodies for the promotion of equal treatment (amendments 39 and 68)

The Council considered that promotion of the principle of equal treatment regardless of
sex, which should be the primary task of bodies charged with promoting equal treatment,
was a more ambitious wording than that proposed by the Parliament and by the
Commission, which both referred to implementation of the principle.

Moreover, the Council did not intend to limit the powers of these bodies to areas within
the scope of this Directive and Directives 75/117/EEC, 79/7/EEC, 86/378/EEC, 92/85/EC,
96/34/EC and 97/80/EC, as it did not exclude the adoption of new legislative texts on
the principle of equal treatment, in particular on the basis of Article 13 of the Treaty.
The Council also wished to use the same wording as that adopted in Directive
2000/43/EC for the sake of consistency between these texts, as stated above. This
concern for parallelism also underlines the proposed change to paragraph 2 of this
Article, which provides that these bodies may receive complaints from groups of
individuals and organisations and examine them, as neither in the case of Directive
2000/43/EC nor in the present case did the Council consider it desirable that these bodies
be given a judicial or quasi-judicial role. However, these bodies could help victims of
discrimination to institute proceedings for discrimination.

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However, as the term ‘groups of individuals’ has no legal status in most States it was
discarded for purposes of this Directive, as it had been for Directives 2000/43/EC and
2000/78/EC.

3.13. Article 8c: penalties (amendment 65)

The Council considered it sufficient to provide that the Member States must ‘take all
measures necessary to ensure that they are implemented’, as it did not imagine that the
Member States could take measures for an application of sanctions that was not effective.

4.

CONCLUSIONS

The Council considers that the respective positions of the European Parliament and of the
Council in fact differ only marginally, and it hopes that they will be able to fulfil the mandate
given by the Stockholm European Council of 23 and 24 March 2001 to complete the updating
of Directive 76/207/EEC by the end of 2001.