Opinion of the Commission pursuant to Article 251 (2), third subparagraph, point (c) of the EC Treaty, on the European Parliament's amendments to the Council's common position regarding 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 amending the proposal of the Commission pursuant to Article 250 (2) of the EC Treaty
Date: 2001-11-27
Institutions: European Commission
Subjects: equal treatment, gender equality, job access, sexual discrimination, working conditions

COMMISSION OF THE EUROPEAN COMMUNITIES

Brussels, 27.11.2001
COM(2001) 689 final

2000/0142 (COD)

OPINION OF THE COMMISSION

pursuant to Article 251 (2), third subparagraph, point (c) of the EC Treaty,
on the European Parliament's amendments
to the Council's common position regarding 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

AMENDING THE PROPOSAL OF THE COMMISSION
pursuant to Article 250 (2) of the EC Treaty

1. 

BACKGROUND

The  Commission  sent  the  above  proposal  for  a  Directive1  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 based on Article 141(3) of the Treaty to the Parliament and the
Council on 11th July 2000.

The Economic and Social Committee gave its Opinion on 25th January 2001.2

The European Parliament adopted an Opinion on first reading on 31st May 20013.

The Commission made an amended proposal on 6th June 20014 .

The Council reached a unanimous political agreement on a Common Position on 11th
June 2001 and adopted formally a Common Position on 23rd July 20015

Following the official  adoption of the  Common Position of the Council concerning
the  proposal  amending  Directive  76/207/EEC  on  23rd  July  2001,  the  Commission
presented a communication on 8th August.

On  24th  October  2001  the  European  Parliament  adopted  a  recommendation  which
contains fifteen amendments.

This  Opinion  sets  out  the  Commission's  position  on  the  European  Parliament's
amendments in accordance with Article 251(2)(c) of the EC Treaty.

2. 

AIM OF COMMISSION PROPOSAL

This proposal for a Directive amending Directive 76/207/EEC on equal treatment has
come about in order to incorporate changes resulting from the Treaty (Article 141(3))
and as a result of the numerous rulings on the original Directive from the European
Court of Justice to assure legal clarity and certainty. There was also a need to update
the Directive which has been in existence unchanged for 25 years, in the light of the
recent  legislation  adopted  on  the  basis  of  Article  13  of  the  Treaty  fighting
discrimination on grounds other than sex.

3. 

COMMISSION'S OPINION ON THE AMENDMENTS PROPOSED BY THE PARLIAMENT

3.1. 

Summary of the Commission's position

The  Commission  can  accept  seven  of  the  amendments  either  partially  or  by  a
reformulation.  The  Commission  cannot  accept  the  remaining  eight  amendments
adopted by the European Parliament.

1 OJ C 337 E, 7.6.2000 p.204
2 OJ C 123 25.4.2001, p.81
3

4 OJ C 270 E , 25/09/2001 P. 0009 - 0021

5

2

                                                
3.2. 

Parliament's amendments on second reading

3.2.1. 

Amendments accepted

3.2.1.1.  Amendments 1 and 5 on preventive measures for sexual harassment

The  European  Parliament  proposes  to  oblige  employers  to  introduce  preventive
measures for sexual harassment.

The  Commission  can  accept  in  part  the  introduction  of  preventive  measures  by
reformulating the text to encourage employers such as

"Member  States  shall  take  the  necessary  measures  to  encourage  employers  to
prevent  sexual  harassment  at  the  workplace  in  accordance  with  national  law,
collective agreements or practice."

3.2.1.2.  Amendment 8 on positive action measures

The  European  Parliament  proposes  a  definition  of  positive  action  measures  with  a
reference to Declaration 28 of the Treaty within Article 2, paragraph 4 as well as in
the  recitals.  The  Commission  can  accept  in  part  that  a  description  of  positive
measures  could  be  given  in  the  recitals  providing  the  wording  of  the  Treaty  is
respected.

3.2.1.3.  Amendment 9 on provisions in contracts or agreements

The Commission accepts that nullity should be obligatory but rejects the removal of
the possibility for amendment of the contract.

3.2.1.4.  Amendment 13 on the role of independent bodies

The  European  Parliament  wishes  to  strengthen  the  role  of  independent  bodies  in
order  to  be  responsible  for  the  promotion,  monitoring  and  follow-up  of  all
Community  legislation  in  this  area.  These  bodies  must  also  have  the  funding  and
human resources necessary to accomplish their task. Moreover, these bodies could
act on behalf of the victims of discrimination and not only assist them as adopted
in the Common Position.

The  Commission  considers  that  the  role  of  these  bodies  could  be  strengthened  as
proposed  by  the  European  Parliament  to  include  promotion,  monitoring  and
follow-up.

The Commission cannot accept the sentence on the necessity of funding and human
resources  of  these  bodies  as  this  is  a  matter  for  Member  States,  and  this  is  not
covered by the legal base of the Directive.

The concern regarding the possibility of these bodies acting on behalf of victims can
be  accepted  by  a  reformulation  of  Article  6.3  by  expressly  mentioning  that  these
designated  bodies,  are  an  example  of  other  organisations  having  an  interest  in
ensuring that the provisions of the directive are complied with.

3

3.2.1.5.  Amendment 14 on equality plans at the company level

The  European  Parliament  wishes  to  introduce  an  obligation  for  the  employer  to
promote the principle of equal treatment by establishing annual equality plans.

The  Commission  can  accept  in  spirit  this  idea  but  under  a  new  formulation  for
Article 8b such as

"Member  States  shall  take  all  necessary  measures  to  encourage  employers  to
promote  equal  treatment  of  women  and  men  at  the  work  place  in  a  planned  and
systematic way"

"To  this  effect,  Member  States  shall  encourage  employers  to  provide  appropriate
information to existing worker representative bodies about equal treatment of women
and men in the undertaking. This information may include statistics on proportions
of women and men at different  levels  of the  organisation and  possible  measures  to
improve the situation."

3.2.1.6.  Amendment 15 on reporting on positive action measures

The  European  Parliament  requests  the  Commission  to  report  every  two  years  on
positive action measures submitted by the Member States.

The  Commission  cannot  accept  this  time  period  and  would  instead  propose  a
compromise  three  year  period  instead  of  two  years  proposed  by  the  European
Parliament and five years proposed by the Council's common position.

3.2.2.  Amendments not accepted

3.2.2.1. Amendment  2  on  extending  post  employment  judicial  protection  to  a  person

supporting the employee

The  Commission  cannot  accept  this  amendment  as  this  extension  of  the  post
employment judicial protection is considered as inoperable in practice.

3.2.2.2. Amendment 3 on the definition of the Directive's scope

The  European  Parliament  proposes  to  define  the  Directive's  scope  by  referring  to
Articles 2, 3 and 141 of the Treaty.

The  amendment  is  not  accepted  by  the  Commission  as  a  reference  to  Articles  2,  3
and 141 is inappropriate as their scope is broader than that of the Directive.

3.2.2.3. Amendment  4  on  the  re-wording  of  the  definition  of  the  European  Parliament  for

sexual harassment

The  Commission  cannot  accept  the  re-wording  as  elements  proposed  by  the
European Parliament are considered inoperable in practice and also, from a technical
point  of  view  since  there  is  a  repetition  of  the  same  wording  of  the  previous

4

paragraph  on  harassment.  Moreover, 
consistency with the Article 13 Directives6.

the  definition  on  harassment  ensures

3.2.2.4. Amendment  6  on  the  general  exclusion  or  restriction  on  access  to  a  professional

activity constituting discrimination

The European Parliament proposes that "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  constitutes  discrimination  within  the  meaning  of
this Directive".

The Commission cannot accept this proposal as it is already implicitly covered by the
Common Position which  reflects the case law of  the  Court  in  the  area  of  access  to
specific activities.

3.2.2.5. Amendment 7  on reformulating the text of  the  Common  Position  on  maternity  and

paternity leave

The  Commission  considers that  questions  on  the  reconciliation  of  work  and  family
life should be dealt with in the context of a broader approach concerning the Parental
Leave  Directive7  which  already  covers  parental  leave  in  cases  of  adoption.  The
relevant provisions in the Common Position's text reflect the real meaning of the case
law  of  the  Court  as  far  as  maternity  leave  is  concerned  by  adding  an  adequate
protection  in  cases  of  paternity  leave  for  Member  States  which  recognise  such  a
right. Moreover, for questions relating specifically to maternity, these should be dealt
with in the context of the Pregnant Workers Directive8.

3.2.2.6 Amendment 10 on sanctions for breach of the Directive

The European Parliament proposes that Member States shall introduce into national
legislation  effective,  proportionate  and  dissuasive  sanctions  for  breach  of  the
Directive as well as compensation for damage, which may not a priori be restricted
by a fixed upper limit.

The  Commission  cannot  accept  the  proposal  as  the  Common  Position  reflects  the
case law of the Court on sanctions as well as on the relevant cases where limits may
not  be  fixed  a  priori,  especially  the  judgment  of  the  Court  of  2  August  1993  in
C-271/919 interpreting Article 6 of the current Directive 76/207/EEC.

6 Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in
employment  and  occupation  Official  Journal  L  303  ,  02/12/2000  P.  0016  -  0022  and  Council  Directive
2000/43/EC  of  29  June  2000  implementing  the  principle  of  equal  treatment  between  persons  irrespective  of
racial or ethnic origin Official Journal L 180 , 19/07/2000 P. 0022 - 0026
7  Council  Directive  96/34/EC  of  3  June  1996  on  the  framework  agreement  on  parental  leave  concluded  by
UNICE, CEEP and the ETUC the Council of the European Union, Official Journal L 145 , 19/06/1996 P. 0004 -
0009
8 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  (tenth  individual  Directive  within  the  meaning  of  Article  16  (1)  of  Directive  89/391/EEC)
Official Journal L 348 , 28/11/1992 P. 0001 - 0008
9 Helen Marshall v Southampton and South-West Hampshire Area Health Authority. Case C-271/91. European
Court Reports 1993 page I-4367

5

                                                
3.2.2.7. Amendment 11 on group action in cases of discrimination even without the consent

of the victim of discrimination

Not  accepted  by  the  Commission  at  first  reading  because  such  a  proposal  goes
beyond the legal base of the Directive.

3.2.2.8. Amendment 12 extending protection against dismissal to workers' representatives

The Commission cannot accept this idea as workers' representatives are employees
who are covered by the text of the Common Position as it stands.

3.3.

Conclusion

Pursuant to Article 250(2) of the EC Treaty, the Commission amends its proposal as
set out above.

6