European Parliament legislative resolution on the Council common position for adopting a European Parliament and Council directive 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 (9848/1/2001 - C5-0387/2001 - 2000/0142 (COD))
Date: 2001-10-24
Institutions: European Parliament
Subjects: equal treatment, gender equality, job access, position of women, psychological harassment, sexual harassment, working conditions

9.5.2002

EN

Official Journal of the European Communities

C 112 E/169

TEXTS ADOPTED

Wednesday 24 October 2001

1. Equal treatment for men and women as regards access to employment ***II

A5-0358/2001

European Parliament legislative resolution on the Council common position for adopting a Euro-
pean Parliament and Council directive amending Council Directive 76/207/EEC on the implemen-
tation of the principle of equal treatment for men and women as regards access to employment,
vocational training and promotion, and working conditions (9848/1/2001 1 C5-0387/2001 1
2000/0142(COD))

(Codecision procedure: second reading)

The European Parliament,

(cid:17) having regard to the Council common position (9848/1/2001 (cid:17) C5-0387/2001),

(cid:17) having regard to its position at first reading (1) on the Commission proposal to Parliament and the

Council (COM(2000) 334) (2),

(cid:17) having regard to the amended proposal (COM(2001) 321) (3),

(cid:17) having regard to Article 251(2) of the EC Treaty,

(cid:17) having regard to Rule 80 of its Rules of Procedure,

(cid:17) having regard to the recommendation for second reading of the Committee on Women’s Rights and

Equal Opportunities (A5-0358/2001),

1.

2.

Amends the common position as follows;

Instructs its President to forward its position to the Council and Commission.

COUNCIL
COMMON POSITION

AMENDMENTS
BY PARLIAMENT

Amendment 1
RECITAL 8a (new)

(8a) Member States should introduce into their national
legal systems measures obliging those responsible for access
to employment, occupation or training to take preventive
measures against harassment and sexual harassment in the
workplace, which may include a confidential counselling ser-
vice.

Amendment 2
RECITAL 16

(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.

(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. Anyone defending, or attesting on
behalf of, a person who considers her/himself a victim of dis-
crimination should also enjoy the same protection.

‘Texts Adopted’ of 31.5.2001, Item 7.

(1)
(2) OJ C 337 E, 28.11.2000, p. 204.
(3) OJ C 270 E, 25.9.2001, p. 9.

C 112 E/170

Official Journal of the European Communities

EN

9.5.2002

Wednesday 24 October 2001

COUNCIL
COMMON POSITION

AMENDMENTS
BY PARLIAMENT

Amendment 3

ARTICLE 1, POINT 1, INTRODUCTION
Article 1 (Directive 76/207/EEC)

1.

In Article 1 the following paragraph shall be inserted:

1. Article 1 shall be amended as follows:

(a) Paragraph 1 shall be replaced by the following:

1.
In accordance with Articles 2, 3(2) and 141 of
the Treaty, the purpose of this Directive is to put
into effect in the Member States the principle of
equal treatment for men and women as regards
access to employment, including promotion, and to
vocational training and as regards working con-
ditions and, on the conditions referred to in para-
graph 2, social security. This principle is hereinafter
referred to as ‘the principle of equal treatment’.

(b) After paragraph 1 the following paragraph shall be

inserted:

Amendments 4 and 5

ARTICLE 1, POINT 2, INTRODUCTION and POINT (a)
Article 2, paragraph 1 (Directive 76/207/EEC)

2. Article 2 is amended as follows:

1a. The following Articles shall be inserted:

(a) In paragraph 1, the following subparagraphs shall be

Article 1a

added:

For the purposes of the first subparagraph:

For the purposes of this Directive, the following defini-
tions shall apply:

(a) 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.

/ direct discrimination: the situation where one person
is treated less favourably on grounds of sex than
another is, has been or would be treated in a com-
parable situation.

(b) indirect discrimination shall be taken to occur
where an apparently neutral provision, criterion
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
an 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 intimidat-
ing, hostile, degrading, humiliating or offensive
environment. Sexual harassment, which manifests
itself as unwanted conduct of a sexual nature
expressed physically, verbally or non-verbally, consti-
tutes a specific form of harassment.

/ indirect discrimination: the situation where an appar-
ently neutral provision, criterion or practice would put
persons of one sex at a particular disadvantage com-
pared with persons of the other sex, unless that provi-
sion, criterion or practice is objectively justified by a
legitimate aim and the means of achieving that aim
are appropriate and necessary.

/ harassment: the situation where an unwanted conduct
related to the sex of a person occurs on the occasion
of access to or at the place of employment, occu-
pation or training with the purpose or effect of viol-
ating the dignity of a person or of creating an intimi-
dating, hostile, degrading, humiliating or offensive
environment.

9.5.2002

EN

Official Journal of the European Communities

C 112 E/171

COUNCIL
COMMON POSITION

Wednesday 24 October 2001

AMENDMENTS
BY PARLIAMENT

/ sexual harassment: the situation where any form of
verbal, non-verbal or physical conduct of a sexual
nature occurs, which the perpetrator knows, or is
under a legal obligation to know, to have the pur-
pose or effect of violating the dignity of a person or
creating an intimidating, hostile, degrading,
of
humiliating or offensive environment.

Article 1b

1.
Harassment and sexual harassment within the
meaning of this Directive shall be deemed to be discrimi-
nation on the grounds of sex and therefore prohibited.

A person’s rejection of, or submission to, such con-
duct may not be used as a basis for a decision affect-
ing that person.

2.
A person’s rejection of, or submission to, such con-
duct shall not be used as a basis for a decision affecting
that person.

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

3.
An instruction to discriminate against persons on
grounds of sex shall be deemed to be discrimination
within the meaning of this Directive.

4. Member States shall in their national legal systems
ensure that those responsible for access to employment,
occupation or training, or the conditions relating thereto,
introduce measures to prevent harassment and sexual
harassment in the workplace.

2. Article 2 shall be amended as follows:

Amendment 6
ARTICLE 1, POINT 2, POINT (b)
Article 2, paragraph 2 (Directive 76/207/EEC)

2. Member States may provide, as regards access to employ-
ment including the training leading thereto, 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 con-
text in which they are carried out, such a characteristic consti-
tutes a genuine and determining occupational requirement,
provided that the objective is legitimate and the requirement
is proportionate.

2.
Any general exclusion of, or restriction on, one sex
having access to any kind of professional activity or to the
training required to gain access to such an activity shall con-
stitute discrimination within the meaning of this Directive.

Member States may provide, as regards access to employment
including the training leading thereto, that a difference of treat-
ment 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 objective is legitimate and the requirement is propor-
tionate.

Amendment 7
ARTICLE 1, POINT 2, POINT (c)
Article 2, paragraph 3 (Directive 76/207/EEC)

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

At the end of her period of maternity leave or after an
absence directly linked to or
following an adoption, a
woman shall be entitled to return to her job or to an equival-

C 112 E/172

Official Journal of the European Communities

EN

9.5.2002

Wednesday 24 October 2001

COUNCIL
COMMON POSITION

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 frame-
work 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 encour-
age improvements in the safety and health at work of pregnant
workers and workers who have recently given birth or are
breastfeeding (tenth individual Directive within the meaning of
Article 16(1) of Directive 89/391/EEC). It is also without preju-
dice 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.

AMENDMENTS
BY PARLIAMENT

ent post on terms and conditions which are no less favourable
to her and to benefit from any improvement in working con-
ditions to which she would have been 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 frame-
work 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 encour-
age improvements in the safety and health at work of pregnant
workers and workers who have recently given birth or are
breastfeeding (tenth individual Directive within the meaning of
Article 16(1) of Directive 89/391/EEC). It is also without preju-
dice 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, and to benefit from any
improvement in working conditions to which they would
have been entitled during their absence.

Any unequal treatment of a woman related to pregnancy or
maternity shall constitute discrimination within the meaning
of this Directive.

Amendment 8
ARTICLE 1, POINT 2, POINT (d)
Article 2, paragraph 4 (Directive 76/207/EEC)

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

(d) Paragraph 4 shall be deleted.

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

2a. The following Article 2a shall be inserted:

Article 2a

Member States may maintain or adopt positive
measures within the meaning of Article 141(4) of the
Treaty with a view to ensuring full equality in practice
between men and women. Positive measures shall
provide for specific advantages in order to make it
easier for the under-represented sex to pursue a
vocational activity, or to prevent or compensate for
disadvantages in professional careers.

Amendment 9
ARTICLE 1, POINT 3
Article 3, paragraph 2, point (b) (Directive 76/207/EEC)

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

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

9.5.2002

EN

Official Journal of the European Communities

C 112 E/173

COUNCIL
COMMON POSITION

Wednesday 24 October 2001

AMENDMENTS
BY PARLIAMENT

Amendment 10
ARTICLE 1, POINT 5
Article 6, paragraph 2 (Directive 76/207/EEC)

introduce into their national

2. Member States shall
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 suf-
fered.

introduce into their national

2. Member States shall
legal
systems such measures as are necessary to ensure effective,
proportionate and dissuasive sanctions in case of breaches of
the obligations under this Directive. Compensation or repar-
ation for the loss and damage sustained by a person injured as
a result of unequal treatment contrary to this Directive shall
be real, effective and proportionate to the damage suffered,
and may not be restricted by the fixing of a prior upper limit.

Amendment 11
ARTICLE 1, POINT 5
Article 6, paragraph 3 (Directive 76/207/EEC)

3. Member States shall ensure that associations, organi-
sations or other legal entities which have, in accordance with
the criteria laid down by their national law, a legitimate inter-
est in ensuring that the provisions of this Directive are com-
plied with, may engage, either on behalf or in support of the
complainants, with his or her approval, in any judicial and/or
administrative procedure provided for the enforcement of obli-
gations under this Directive.

3. Member States shall ensure that associations, organi-
sations or other legal entities which have a legitimate interest
in ensuring compliance with the provisions of this Directive:

(a) may engage, either on behalf or in support of the com-
plainant(s), with her, his or their approval, in any judicial
and/or administrative procedure provided for the enforce-
ment of obligations under this Directive,

(b) may, where national law so permits, bring a collective
action, in any judicial and/or administrative procedure,
on their own initiative and aside from the particular cir-
cumstances of an individual case, in order to determine
whether or not the principle of equal treatment for men
and women is applied.

Amendment 12
ARTICLE 1, POINT 6
Article 7 (Directive 76/207/EEC)

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 reac-
tion to a complaint within the undertaking or to any legal pro-
ceedings aimed at enforcing compliance with the principle of
equal treatment.

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

Amendment 13
ARTICLE 1, POINT 7
Article 8a, point 1 and point 2, introduction and point (a) (Directive 76/207/EEC)

1. Member States shall designate a body or bodies for the
promotion of equal treatment of all persons without discrimi-
nation on the grounds of sex. These bodies may form part of

1. Member States shall designate a body or bodies for the
promotion, monitoring and follow-up of the principle of
equal treatment of all persons without discrimination on the

C 112 E/174

Official Journal of the European Communities

EN

9.5.2002

Wednesday 24 October 2001

COUNCIL
COMMON POSITION

agencies charged at national level with the defence of human
rights or the safeguard of individuals’ rights.

AMENDMENTS
BY PARLIAMENT

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. They must have the fund-
ing and human resources necessary to accomplish their task.
The scope of these bodies shall cover all Community law in
the field of equal treatment for men and women.

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

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

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

(a) without prejudice to the right of victims and of associ-
ations, organisations or other legal entities referred to in
Article 6(3),
receiving, examining and pursuing com-
plaints from individuals, groups of
individuals and
organisations about discrimination;

Amendment 14
ARTICLE 1, POINT 7
Article 8b, paragraphs 2a and 2b (new) (Directive 76/207/EEC)

2a. Member States shall take all necessary measures to
ensure that employers promote equal treatment for men and
women in the workplace in a planned and systematic way.

To this end, Member States shall encourage employers
2b.
to provide annually appropriate information to workers and/
or their representatives about equal treatment for men and
women in the undertaking. Such information shall include
statistics on proportions of men and women at different
levels of the organisation and possible measures to improve
the situation in cooperation with workers’ representatives.

Amendment 15
ARTICLE 2, POINT 3

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.

3. Without prejudice to paragraph 2, Member States shall
communicate to the Commission, every two years, the texts of
laws, regulations and administrative provisions of any measures
the Treaty, as well as
adopted pursuant Article 141(4) of
reports on these positive measures and their implementation.
On the basis of that information, the Commission will adopt
and publish every two years a report establishing a com-
parative assessment of any measures in the light of Declar-
ation No 28 annexed to the Final Act of the Treaty of
Amsterdam.