Directive 2002/73/EC of the European Parliament and of the Council of 23 September 2002 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: 2002-09-23
Institutions: Council of the European Union, European Parliament
Subjects: approximation of laws, gender equality, job access, promotion, sexual discrimination, vocational training, working conditions

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DIRECTIVE 2002/73/EC OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL

of 23 September 2002

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)

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 (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), in the light of the joint text approved by
the Conciliation Committee on 19 April 2002,

Whereas:

(1)

(2)

(3)

(4)

liberty, democracy, respect

In accordance with Article 6 of the Treaty on European
Union, the European Union is founded on the principles
of
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
forms of Discrimination Against
Elimination of all
Women, the International Convention on the Elimina-
tion 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.

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

the fundamental

Equality between women and men is a fundamental
principle, under Article 2 and Article 3(2) of the EC
Treaty and the case-law of the Court of Justice. These

(1) OJ C 337 E, 28.11.2000, p. 204 andOJ C 270 E, 25.9.2001, p.

9.

(2) OJ C 123, 25.4.2001, p. 81.
(3) Opinion of the European Parliament of 31 May 2001 (OJ C 47,
21.2.2002, p. 19), Council Common Position of 23 July 2001
(OJ C 307, 31.10.2001, p. 5) and Decision of
the European
Parliament of 24 October 2001 (OJ C 112 E, 9.5.2002, p. 14).
Decision of
the European Parliament of 12 June 2002 and
Council Decision of 13 June 2002.

(5)

(6)

(7)

(8)

Treaty provisions proclaim equality between women and
men as a ‘task’ and an ‘aim’ of the Community and
impose a positive obligation to ‘promote’
its
activities.

it in all

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.

the Treaty,

Council Directive 76/207/EEC (4) does not define the
concepts of direct or indirect discrimination. On the
basis of Article 13 of
the Council has
adopted Directive 2000/43/EC of 29 June 2000 imple-
menting the principle of equal
treatment between
persons irrespective of racial or ethnic origin (5) and
Directive 2000/78/EC of 27 November 2000 estab-
lishing a general
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.

framework for equal

treatment

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 organ-
isations or unions whose main objective is the promo-
tion,
in practice, of the principle of equal treatment
between women and men.

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

(9)

In this context, employers and those responsible for
vocational training should be encouraged to take meas-
ures to combat all forms of sexual discrimination and, in

(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.

(10)

(11)

(12)

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particular, to take preventive measures against harass-
ment and sexual harassment
in
accordance with national

in the workplace,
legislation and practice.

conditions to which they would be entitled during their
absence.

for national

The appreciation of the facts from which it may be
inferred that there has been direct or indirect discrim-
judicial or other
ination is a matter
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.

(13)

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.

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).

(14) Member States may, under Article 141(4) of the Treaty,
maintain or adopt measures providing for
specific
in order to make it easier for the under-
advantages,
represented sex to pursue a vocational activity or to
prevent or compensate for disadvantages in professional
careers. Given the current situation, and bearing in mind
Declaration No 28 to the Amsterdam Treaty, Members
States should, in the first instance, aim at improving the
situation of women in working life.

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
after pregnancy. It has moreover consistently ruled that
any unfavourable treatment of women related to preg-
nancy or maternity constitutes direct sex discrimination.
This Directive is therefore without prejudice to Council
Directive 92/85/EEC of 19 October 1992 on the intro-
duction of measures to encourage improvements in the
safety and health at work of pregnant workers and
workers who have recently given birth or are breast-
feeding (3) (tenth individual Directive within the meaning
of Article 16(1) of Directive 89/391/EEC), 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
who are on the labour market unfavourably nor work to
the detriment of Directives concerning equal treatment
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 equiva-
lent job, with no less favourable working conditions, as
well as to benefit from any improvement in working

(1) Case C-394/96 Brown, [1998] ECR I-4185, Case C-342/93 Gille-

spie, [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.

(15)

(16)

(17)

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 meas-
ures 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.

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.

the right

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). An employee
defending or giving evidence on behalf of a person
protected under this Directive should be entitled to the
same protection.

(4) OJ C 218, 31.7.2000, p. 5.
(5) OJ L 45, 19.2.1975, p. 19.
(6) Case C-185/97 Coote [1998] ECR I-5199.

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(18)

in order to be
Justice has ruled that,
The Court of
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 (1).

provisions, policies and activities in the areas referred to in
paragraph 1.’;

2. Article 2 shall be replaced by the following:

‘Article 2

(19) 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
they do not render the exercise of rights
and that
conferred by the Community law impossible in practice.

(20)

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, associa-
tions, 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 proce-
dure concerning representation and defence before the
courts.

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

organisations

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

(23)

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

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

accordingly,

1.
For the purposes of the following provisions, the prin-
ciple of equal treatment shall mean that there shall be no
discrimination whatsoever on grounds of sex either directly
or indirectly by reference in particular to marital or family
status.

For the purposes of this Directive, the following defi-

2.
nitions shall apply:

— direct discrimination: 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: 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: where an unwanted conduct related to the
sex of a person occurs with the purpose or effect of
violating the dignity of a person, and of creating an
intimidating, hostile, degrading, humiliating or offensive
environment,

— sexual harassment: where any form of unwanted verbal,
non-verbal or physical conduct of a sexual nature
occurs, with the purpose or effect of violating the
dignity of a person, in particular when creating an inti-
midating, hostile, degrading, humiliating or offensive
environment.

Harassment

and sexual harassment within the
3.
meaning of this Directive shall be deemed to be discrim-
ination on the grounds of sex and therefore prohibited.

HAVE ADOPTED THIS DIRECTIVE:

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

Article 1

Directive 76/207/EEC is hereby 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 formu-
lating and implementing laws, regulations, administrative

(1) Case C-180/95, Draehmpaehl, [1997] ECR I-2195, Case C-271/

91, Marshall [1993] ECR I-4367.

An instruction to discriminate against persons on
4.
grounds of sex shall be deemed to be discrimination within
the meaning of this Directive.

in accordance with
5. Member States shall encourage,
national law, collective agreements or practice, employers
and those responsible for access to vocational training to
take measures to prevent all forms of discrimination on
grounds of sex, in particular harassment and sexual harass-
ment at the workplace.

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6. Member States may provide, as regards access to
employment 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 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 proportionate.

7.
This Directive shall be without prejudice to provisions
concerning the protection of women, particularly as regards
pregnancy and maternity.

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.

Less favourable treatment of a woman related to pregnancy
or maternity leave within the meaning of Directive 92/
85/EEC shall constitute discrimination within the meaning
of this Directive.

This Directive shall also be without prejudice to the provi-
sions 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 (tenth individual
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 distinct rights to paternity and/
or adoption leave. Those Member States which recognise
such rights shall take the necessary measures to protect
working men and women against dismissal due to exer-
cising those rights 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.

8. 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.

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

3. Article 3 shall be replaced by the following:

‘Article 3

Application of

the principle of equal

1.
treatment
means that there shall be no direct or indirect discrim-
ination on the grounds of sex in the public or private
sectors,

including public bodies,

in relation to:

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

conditions, whatever

the

(b) access to all

types and to all

guidance, vocational
training
experience;

and retraining,

training,

levels of vocational
advanced vocational
including practical work

(c) employment

and working

including
dismissals, as well as pay as provided for in Directive
75/117/EEC;

conditions,

(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) any laws,

regulations and administrative provisions
contrary to the principle of equal treatment are abol-
ished;

(b) any provisions contrary to the principle of equal
treatment which are included in contracts or collective
agreements,
rules
governing the independent occupations and profes-
sions and workers' and employers' organisations shall
be, or may be declared, null and void or are
amended.’;

rules of undertakings or

internal

4. Articles 4 and 5 shall be deleted;

5. Article 6 shall be replaced by the following:

‘Article 6

shall ensure that

judicial and/or
1. Member States
including where they deem it
administrative procedures,
for the enforcement
appropriate conciliation procedures,
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.

reparation as

2. Member States shall
introduce into their national
legal systems such measures as are necessary to ensure
the
real and effective compensation or
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; such compensation
or reparation may not be restricted by the fixing of a
prior upper limit, except in cases where the employer can
prove that the only damage suffered by an applicant as a
result of discrimination within the meaning of
this
Directive is the refusal to take his/her job application into
consideration.

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in ensuring that

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

the provisions of

in support of

4.
to
Paragraphs 1 and 3 are without prejudice
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 7

as

such measures

introduce into their national

legal
Member States shall
are necessary to protect
systems
including those who are employees' represen-
employees,
laws and/or practices,
tatives provided for by national
against dismissal or other adverse
treatment by the
employer as a reaction to a complaint within the under-
taking or to any legal proceedings aimed at enforcing
compliance with the principle of equal treatment.’;

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 appro-
priate level, agreements laying down anti-discrimination
rules in the fields referred to in Article 1 which fall
within the scope of collective bargaining. These agree-
ments shall respect the minimum requirements laid down
by this Directive and the relevant national
implementing
measures.

collective

in accordance with national
3. Member States shall,
encourage
law,
employers
for men and
women in the workplace in a planned and systematic
way.

or
treatment

to promote equal

agreements

practice,

4.
To this end, employers should be encouraged to
provide at appropriate regular intervals employees and/or
their
information on
equal treatment for men and women in the undertaking.

representatives with appropriate

Such information may include statistics on proportions of
the organisation
men and women at different levels of
and possible measures
situation in
the
cooperation with employees' representatives.

to improve

7. the following Articles shall be inserted:

Article 8c

‘Article 8a

1. Member States shall designate and make the neces-
sary arrangements for a body or bodies for the promo-
tion, analysis, monitoring and support of equal treatment
of all persons without discrimination on the grounds of
sex. These bodies may form part of agencies charged at
level with the defence of human rights or the
national
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 asso-
ciations, organisations or other legal entities referred
to in Article 6(3), providing independent assistance to
victims of discrimination in pursuing their complaints
about discrimination;

(b) conducting independent surveys concerning discrim-

ination;

Member States shall encourage dialogue with appropriate
in accord-
non-governmental organisations which have,
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 prin-
ciple of equal treatment.

Article 8d

Member States shall
applicable to infringements of
adopted pursuant
measures necessary to ensure that they are applied.

lay down the rules on sanctions
the national provisions
take all

to this Directive, and shall

The sanctions, which may comprise the payment of
compensation to the victim, must be effective, propor-
tionate and dissuasive. The Member States shall notify
those provisions to the Commission by 5 October 2005
the latest and shall notify it without delay of any
at
subsequent amendment affecting them.

(c) publishing independent

reports and making recom-
mendations on any issue relating to such discrim-
ination.

Article 8e

Article 8b

and practice,

in accordance with national
1. Member States shall,
to
adequate measures
take
traditions
promote 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.

1. Member States may introduce or maintain provi-
sions 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.’

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Article 2
1. Member States shall bring into force the laws, regula-
tions and administrative provisions necessary to comply with
this Directive by 5 October 2005 at
the latest or shall
that management and
the latest,
ensure, by that date at
labour introduce the requisite provisions by way of agree-
ment. 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
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.
The Member States shall communicate to the Commis-
2.
sion, within three years of
this
Directive, all the information necessary for the Commission
to the European Parliament and the
to draw up a report
Council on the application of this Directive.
3. Without prejudice to paragraph 2, Member States shall
communicate to the Commission, every four years, the texts
regulations and administrative provisions of any
of

the entry into force of

those measures,

laws,

measures adopted pursuant to Article 141(4) of the Treaty,
as well as reports on these measures and their implementa-
tion. On the basis of that information, the Commission will
adopt and publish every four years a report establishing a
comparative assessment of any measures in the light of
Declaration No 28 annexed to the Final Act of the Treaty of
Amsterdam.

Article 3

This Directive shall enter into force on the day of its publi-
cation in the Official Journal of the European Communities.

Article 4

This Directive is addressed to the Member States.

Done at Brussels, 23 September 2002.

For the European Parliament

For the Council

The President

P. COX

The President

M. FISCHER BOEL