Proposal for a Council Directive implementing the principle of equal treatment between women and men in the access to and supply of goods and services {SEC (2003) 1213 }
Date: 2003-11-05
Institutions: European Commission
Subjects: European social policy, anti-discriminatory measure, equal treatment, gender equality, goods and services, insurance

COMMISSION OF THE EUROPEAN COMMUNITIES

Brussels, 5.11.2003
COM(2003) 657 final

2003/0265(CNS)

Proposal for a

COUNCIL DIRECTIVE

implementing the principle of equal treatment between women and men in
the access to and supply of goods and services

(presented by the Commission)

{SEC (2003) 1213 }

EXPLANATORY MEMORANDUM

I.

INTRODUCTION

In its Social Policy Agenda published in June 20001, the Commission announced its intention
to  present  a  proposal  for  a  directive  to  prohibit  sex  discrimination  outside  of  the  labour
market. At the European Council in Nice in 2000, Heads of State and Government called on
the Commission to reinforce equality-related rights by adopting a proposal for a directive on
promoting gender equality in areas other than employment and professional life. The proposal
was  to  be  based  on  Article  13  of  the  European  Community  Treaty,  which  confers  on  the
Council  the  power  to  take  appropriate  action  to  combat  discrimination  based,  among  other
grounds, on sex.

This proposal is the first step of the Commission's response to the European Council's request.

II.

CONTEXT

Equal  treatment  between  women  and  men  and  non-discrimination  on  grounds  of  sex  are
fundamental  principles  of  Community  law.  The  European  Union's  approach  to  equality  has
developed  considerably  over  time,  so  that  the  original  emphasis  on  equal  pay2  and  on
avoiding distortions of competition between Member States  has been  replaced by  a  concern
for equality as a fundamental right. This is demonstrated by the attention given to equality in
the  Treaty  establishing  the  European  Community,  in  the  European  Union  Charter  of
Fundamental Rights and, most recently, in the draft Constitutional Treaty which resulted from
the Convention on the Future of Europe.

Article  2  of  the  European  Community  Treaty  enshrines  the  promotion  of  equality  between
men  and  women  as  one  of  the  Community’s  essential  tasks.  Article  3(2)  EC  requires  the
Community to aim to eliminate inequalities and to promote equality between men and women
in all its activities. Article 13 EC confers on the Council the power to adopt appropriate action
to combat discrimination on a number of grounds, including sex.

The European Union Charter of Fundamental Rights reinforces this approach by prohibiting
all  forms  of  discrimination,  including  those  based  on  sex3  and  by  requiring  that  equality
between men and women must be ensured in all areas4.

The Convention on the Future of Europe has proposed to the  Intergovernmental Conference
to incorporate the Charter in the future  Constitutional  Treaty  and  to  make  the  promotion  of
equality of men and women an objective of the Union as a whole5.

The  Community  has  adopted  a  series  of  legal  measures  to  combat  sex  discrimination,
beginning  in  1975  with  the  Council  Directive  on  equal  pay  for  men  and  women6  and

1

2

3

4

5

COM(2000)0379 final.
Article 119 of the Treaty of Rome
Article 21 of the Charter of Fundamental Rights signed and proclaimed in Nice on 7th December 2000
Article 23 of the Charter of Fundamental Rights signed and proclaimed in Nice on 7th December 2000
Part I, Article 3 of the Draft Treaty establishing a Constitution for Europe, presented to the European
Council on 20 June 2003 .

2

                                                
continuing  up  to  the  amendments  to  the  Council  Directive  on  equal  treatment  as  regards
access to employment  adopted in 20027. All of these measures have so far  dealt  with  equal
treatment in employment, occupation, vocational training and related areas.

The Council has also adopted two legislative instruments based on Article 13 EC in the form
of  Directive  2000/43/EC  of  29 June  2000  implementing  the  principle  of  equal  treatment
between  persons  irrespective  of  racial  or  ethnic  origin8  and  Directive  2000/78/EC  of
27 November  2000  establishing  a  general  framework  for  equal  treatment  in  occupation  and
employment9.  The  first  directive  prohibits  racial  discrimination  in  employment,  social
protection, including social security and health care, social advantages, education and access
to goods and services, including housing. The second prohibits discrimination on grounds of
religion and belief, disability, age and sexual orientation in the labour market in a similar way
(with the exception of rules on statutory social security) to existing Community law on equal
treatment between men and women.

Legislation  at  European  level  to  prohibit  sex  discrimination  in  the  labour  market  is
comprehensive and well established10. It has shown its worth over thirty years and has played
a significant role in contributing to the changing attitudes to the roles of men and women in
European society. Community law has previously been limited to the employment field as a

6

7

8

9

10

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 (Official Journal L
045 19.02.75 p.19)
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
(Official Journal L 269 , 05/10/2002 P. 0015 – 0020)
Council Directive 2000/43/EC implementing the principle of equal treatment irrespective of racial and
ethnic origin (OJ L 180 of 19.7.2000 p.0022-0026).
Council Directive 2000/78/EC establishing a general framework for equal treatment in employment and
occupation (OJ L 303 of 2.12.2000 p. 0016-0022).
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,  OJ  L  45  of
19.2.1975; Council Directive 76/207/EEC of 9 February 1976 on the implementation of the principle of
equal  treatment  for  men  and  women  as  regards  access  to  employment,  vocational  training  and
promotion,  and  working  conditions,  OJ  L 39  of  14.2.1976  as  amended  by  Directive  2002/73  of  the
European  Parliament  and  of  the  Council,  OJ  L269  of  5.10.2002;  Council  Directive  79/7/EEC  of
19 December 1978 on the progressive implementation of equal treatment for men and women in matters
of  social  security,  OJ  L  6  of  10.1.1979;  Council  Directive  86/378/EEC  of  24 July  1986  on  the
implementation of the principle of equal treatment for men and women in occupational social security
schemes,  OJ L 225  of  12.8.1986  as  amended  by  Council  Directive  96/97/EC  of  20 December  1996,
OJ L 46 of 17.2.1997;  Council Directive 86/613/EEC of  11 December  1986  on  the  application  of  the
principle  of  equal  treatment  between  men  and  women  engaged  in  activity,  including  agriculture,  in  a
self-employed  capacity,  and  on  the  protection  of  self-employed  women  during  pregnancy  and
motherhood,  OJ L  359  of  19.12.1986;  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,  OJ L  348  of  28.11.1992;  Council
Directive  96/34/EC  of  3 June  1996  on  the  framework  agreement  on  parental  leave  concluded  by
UNICE, CEEP and the ETUC (OJ L 145 19.06.96 p.4) ;Council Directive 97/75/EC of 15 December
1997 amending and extending, to the United Kingdom of Great Britain and Northern Ireland, Directive
96/34/EC on the framework agreement on parental leave concluded by UNICE, CEEP and the ETUC
(OJ L 010 16.01.98 p.24); Council Directive 97/80/EC of 15 December 1997 on the burden of proof in
cases of discrimination based on sex Official Journal L 014 20.01.98 p.6; Council Directive 98/52/EC
of  13  July  1998  on  the  extension  of  Directive  97/80/EC  on  the  burden  of  proof  in  cases  of
discrimination  based  on  sex  to  the  United  Kingdom  of  Great  Britain  and  Northern  Ireland,  Official
Journal L 205 22.07.98 p.66

3

                                                                                                                                                        
consequence  of  the  limits  imposed  by  the  legal  base.  Yet  it  is  clear  that  sex  discrimination
takes place not only in the labour market, but also in many other areas of everyday life, and as
such  it  acts  as  a  barrier  to  the  equality  of  men  and  women  which  the  Treaty  requires  the
Community  to  promote.  If  Community  action  can  help  to  promote  equal  treatment  in  areas
outside the labour market, in the context of a Europe which is close to its citizens and where
the principle of equality for all is established in every national constitution, Community action
to promote equal treatment between women and men cannot be limited only to the world of
work.  For  that  reason,  in  its  Communication  of  7 June  2000  setting  out  a  Community
framework strategy on gender equality (2001-2005)11, the Commission undertook to present a
proposal for a Directive based on Article 13 of the EC Treaty implementing the principle of
equal treatment between men and women in matters other than employment and occupation.
The  European  Council  subsequently  called  on  the  Commission,  in  December  2000,  to
reinforce equality-related  rights by  adopting  a  proposal for  a  directive  on  promoting  gender
equality in areas other than employment and professional life.

It is thus as a result of a real moral and legal obligation, aimed at consolidating the concept
and  the  reality  of  a  Europe  of  citizens  that  the  European  Commission  presents  its  first
proposal for a Directive aimed at establishing equal treatment between men and women in an
area outside of the labour market.

III.

LEGAL BASE

The proposal is based on Article 13(1) of the Treaty establishing the European Community,
the  legal  basis  introduced  for  the  first  time  by  the  Amsterdam  Treaty.  Article  13(1)  EC
empowers  the  Council,  acting  unanimously  on  a  proposal  from  the  Commission  and  after
consulting the European Parliament, to take appropriate action to combat discrimination based
on sex, racial or ethnic origin, religion or belief, disability, age or sexual orientation.

This legal base has already been used on two occasions for the adoption of similar proposals
to combat discrimination. The first of these directives is notable for its prohibition of (racial
and ethnic) discrimination in areas outside the field of employment, including in the access to
and supply of goods and services.

Article 13 EC must be read in the light of the provisions contained in Articles 2 and 3(2) of
the EC Treaty, which require the Community to aim to eliminate inequalities and to promote
equality between men and women in all its activities.

The proposal does not  cover  areas  falling  within  the  scope  of  Article  141  of  the  EC  Treaty
and does not call into question the existing body of legislation implementing the principle of
equal treatment for men and women.

IV.

MOTIVATION, OBJECTIVES AND OVERVIEW OF THE PROPOSED DIRECTIVE

Since the Commission proposed the idea of a Directive to deal with discrimination outside of
the labour market in the Social Policy Agenda published in 2000, and the subsequent support
for  the  principle  from  the  European  Council,  it  has  held  discussions  on  the  various  issues
which  might  be  covered  in  such  a  Directive.  The  public  hearing  held  in  the  European
Parliament on 10 September 2003,  and  which  dealt  in  particular  with  the  application  of  the

11

COM(2000)0335 final.

4

                                                
principle  of  equal  treatment  to  the  fields  of  insurance  and  the  media,  was  a  particularly
important contribution to the debate.

Despite the progress made towards equality over the last thirty years, many stakeholders who
have been consulted by, or who have brought their views to the attention of, the Commission,
argue  that  discrimination  based  on  sex  continues  to  occur  in  many  areas  of  life  inside  and
outside  of  employment.  The  representation  of  the  sexes  in  the  media  and  advertising,  for
example,  poses  serious  questions  about  the  protection  of  the  dignity  of  men  and  women.
Some  stakeholders,  in  particular  in  the  European  Parliament  and  the  women's  movement,
have raised issues related to taxation systems which may act as disincentives to one sex or the
other  to  earn  income  from  employment  or  other  sources  and  have  argued  in  favour  of  the
complete  individualisation  of  taxation.  They  have  also  pointed  to  practices  in  the  field  of
education,  where  girls  or  boys  continue  to  be  discouraged  from  pursuing  non-traditional
paths.

Other stakeholders present different views, however. Representatives of the media argue, for
example, that an attempt to regulate the content of the media would constitute an infringement
of media freedoms. Some Governments, in written contributions to the Commission about a
possible directive or in discussion in national Parliaments, maintain that systems of taxation
based on family units do not constitute discrimination based on sex and that to change them
could  lead  to  families  being  worse  off.  Governments  have  also  cited  the  changing  trends  in
education,  with  the  percentage  of  girls  following  scientific  courses,  for  example,  steadily
increasing.

As regards taxation, the Commission holds the view that, as a result of the direct effect and
material  scope  of  Article  141  EC,  existing  Community  law  requires  the  taxation  of  income
from  employment  to  respect  the  principle  of  equal  treatment.  Member  States  are  therefore
already obliged to ensure that their tax system does not discriminate against members of one
sex  or  the  other.  It  is  therefore  not  necessary  for  the  Community  to  intervene  further  to
regulate the taxation of employment income.

The  commitment  of  all  the  stakeholders  to  the  achievement  of  equality  in  practice  in  these
areas is not in doubt, but there are differences between them about the path which should be
followed.  The  debate  on  these  questions  is  far  from  over.  The  Commission  will  need  to
continue its contacts with the stakeholders on these questions if a consensus is to be reached
on  all  of  these  aspects.  It  has  concluded  therefore  that  it  should  not  now  make  proposals
which would deal with the areas of education, taxation or the content of the media.

The Commission has noted much greater consensus however on the need for regulation in the
field of access to goods and services. Just as when dealing with equal treatment irrespective of
racial or ethnic origin in the context of the Council Directive on Racial Discrimination, there is
little evidence of the existence of consistent discriminatory practices in the area of the access to
or supply of goods and services – companies do not in general instruct their employees to treat
men and women differently. Discrimination is much more likely to occur in the context of the
spontaneous behaviour of individuals, either by withholding a good or a service or providing it
on less favourable terms and conditions to members of one sex than the  other.  Discrimination
based  on  sex  in  access  to  goods  and  services  can  act  as  a  barrier  to  social  and  economic
integration,  especially  in  access  to  finance,  but  also  more  widely.  Decisions  on  loans to small
companies  or to  individuals,  for  example,  which  are  based  on or  influenced  by  the  sex  of  the
applicant  are  not  only  contrary  to  the  basic  principle  of  equal  treatment,  but  are  in  practice
extremely damaging to the ability of large sections of society to provide for themselves and for
others. The exclusion of individuals from access to the goods or services of their choice is at best

5

damaging to their self-esteem and may lead in the worst cases to compounding social exclusion.
The Commission proposes, therefore, that the Member States should prohibit discrimination in
the access to and supply of goods and services. Such a prohibition would enable the victims of
discrimination to challenge acts of discrimination and, in cases where discrimination is proven,
to receive appropriate compensation. The sanctions applied in such cases should be sufficiently
dissuasive so as to contribute to the prevention of future discrimination.

These rules must however be pragmatic. Just as in the case of the Council Directive on Racial
Discrimination, the rules should apply to goods and services which are available to the public.
Nor should they be taken to prohibit differences which are related to goods or services intended
exclusively or primarily for the members of one sex or to skills which are practised differently
for  each  sex,  for  which  women  and  men  are  not  in  a  comparable  situation.  The  Directive
should not apply to the enjoyment of services provided by private clubs which are open to the
members of only one sex.

Insurance

An exception to the general absence of differential rules based on sex is found in the context of
insurance.  It  is  common for insurance  to  be  offered  on  different terms  to  women  and to men.
Actuarial  factors  are  broken  down  by  sex  in  order  to  evaluate  the  risk  of  insuring  men  and
women separately in various parts of the insurance market, but especially in life, health and car
insurance  and  in  the  calculation  of  annuities.  The  factors  taken  into  consideration  include
variations in average life expectancy, but also different patterns of behaviour (particularly in car
insurance) and consumption (in health insurance).

However, insurance companies in different Member States use a wide variety of tables which are
updated more or less regularly and which, in certain cases, lead to different results for men and
women. In France, for example, it is common practice to apply unisex tariffs for men and women
in private health insurance. The same is true in the United Kingdom (though sex differences are
applied in critical illness insurance). In Germany, however, insurers differentiate between men
and women. Similar differences of approach arise in the areas of term life insurance and pensions
annuities,  where  insurers  in  France  use  unisex  tables,  whereas  others  tend  to  calculate
contributions and annuity payments on the basis of tables showing life expectancy according to
sex. In the area of car insurance, insurers in some Member States apply a strong differentiation in
the rates applied to (especially young) men and women (e.g. the United Kingdom and Ireland),
whereas others (in e.g. Sweden) do not. Both approaches are therefore possible without affecting
the financial viability of the companies.

Studies  show  that  sex  is  not  the  main  determining  factor  for  life  expectancy.  Other  factors
have  been  shown  to  be  more  relevant,  such  as  marital  status,  socio-economic  factors,
employment/unemployment,  regional  area,  smoking  and  nutrition  habits.  Lifestyle  can  be
seen as a multidimensional factor which has a significantly higher impact on individuals' life
expectancy  than  sex.  Studies  which  have  tried  to  remove  lifestyle,  social  class  and
environmental  factors  from  the  equation  have  shown  that  the  difference  in  average  life
expectancy between men and women lies between zero and two years with the conclusion that
the growing gap in life expectancy witnessed in the general population in some Member States
cannot  be  attributed  to  biological  differences.  Sex  is  at  the  very  best  a  proxy  for  other
indicators of life expectancy. The inference which can be drawn from such studies is that the
practice of insurers to use sex as a determining factor in the evaluation of risk is based on ease
of  use  rather  than  real  value  as  a  guide  to  life  expectancy.  Commentators  have  noted  that
insurers are more likely to pool together the healthy and the unhealthy than men and women.

6

In this context, some stakeholders – especially in the women's movement and in the European
Parliament,  though  some  insurance  experts  also  agree  –  argue  that  different  actuarial
calculations for determining premiums, benefits and annuities for insurance products related
to life expectancy must be considered as sex discrimination as sex is not the dominant factor
in determining life expectancy.

The  Commission  notes  that  contributions  to  and  benefits  from  state  pensions  and  health
insurance do not take account of differences in life expectancy. Such schemes mutualise the
risks  related  to  sex,  preferring  to  share  the  costs  of  the  longer  life  expectancy  of  women
between both sexes. In the case of statutory schemes, membership is usually compulsory, and
so it is always possible to predict the balance of men and women in the scheme.

The  insurance  industry  argues  that  private  insurance  cannot  be  compared  to  statutory
insurance, in particular because it has little control over the balance of men and women in the
schemes. It points out that the prices and benefits it fixes for men and women reflect the real
risk the insurance companies carry for each of the insurance products they offer, and that to
interfere  in  that  calculation  would  result  in  an  artificial  distortion  of  the  market,  whereby
some  products  would  no  longer  be  economically  viable,  because  the  risk  would  be  out  of
proportion to the income generated. This could be the case, for example, of health insurance
and annuities insurance for men, and life and car insurance for women, as members of the sex
which was required to pay  a  premium which was proportionately higher than their personal
risk  would  be  discouraged  from  taking  out  the  insurance,  while  members  of  the  sex  which
paid a lower rate than  would  be  required by their  real level of risk would be encouraged to
take  it  out,  creating  a  situation  where  the  insurance  company  may  not  be  able  to  meet  its
underwriting liabilities. The industry argues moreover that the tables it uses reflect the reality
of the life expectancy  of women  and  men, that they  are  regularly  updated and that  a  public
supervisory authority generally approves them.

The Commission believes that these concerns are not justified. First, the French Federation of
Insurance  Companies  reports,  for  example,  that  the  introduction  of  sex-neutral  actuarial
factors  did  not  lead  to  a  major  change  in  the  market  for  annuities  in  France.  Second,  the
concerns are based on a static view of the market which does not reflect reality. As described
above,  sex  is  used  by  insurers  as  a  proxy  for  other  factors  and  progressive  insurance
companies are in the process of developing new and more accurate means of predicting risk.
As  they  do  so,  and  as  a  consequence  of  competition,  they  will  be  able  to  reduce  the
importance  of  sex  in  their  calculations  and  base  their  prices  on  sex-neutral  criteria.  The
products  they  and  other  financial  service  providers  offer  will  therefore  adapt  to  the  new
environment to ensure that the range of offers to consumers remains broad and attractive.

The Commission's conclusion

Insurance companies enjoy freedom to set their tariffs within the limits of Community law as
laid down in the Treaty and in the various Council and European Parliament Directives on life
and non-life insurance. All insurance is based on the pooling of risk and the solidarity which
is  created  between  the  insured.  Currently,  insurers  decide  for  themselves  how  they  wish  to
define  the  pool  of  risk.  Many  have  concluded  that  men  and  women  should  be  divided  into
separate pools and that the risks they face should not be shared.

However,  equal  treatment  for  women  and  men  is  a  fundamental  right  and  the  Commission
believes that the freedom to set tariffs must be subject to that right. The separation of men and
women  into  different  pools  leads  to  an  unjustified  difference  of  treatment  and  a  resulting
disadvantage for one sex or the other. The practice must be judged to be discriminatory and

7

the  legislator  should  therefore  take  action  to  prohibit  it.  An  equivalent  situation  was  at  one
time  frequently  found  in  the  field  of  employment:  in  the  past,  it  was  not  uncommon  for
employers to argue that they were reluctant to employ women of  child-bearing  age  as there
was a risk that they would be absent from work for periods of maternity leave, thus increasing
their exposure to risks and resulting costs. While this is statistically true, it is clearly morally
unacceptable as a reason for a difference of treatment of women and men in the labour market
and the legislator has acted to prohibit such behaviour. The same argument holds true in the
field of insurance.

The Commission concludes therefore that differences of treatment based on actuarial factors
directly related to sex are not compatible with the principle of equal treatment and should be
abolished.  This  position  is  in  line  with  the  ruling  of  the  European  Court  of  Justice  in
Coloroll12,  to  the  effect  that  different  contributions  for  men  and  women  to  an  occupational
pension scheme are discriminatory.

The Commission's view is reinforced by the trend in Member States to replace or supplement
state provision in the field of pensions by private insurance, and especially by annuity-based
pensions. In many cases, Governments are encouraging the move to private provision through
tax  incentives  or  equivalent  arrangements.  The  legislator  has  decided  that,  in  the  case  of
statutory social insurance,  the  principle  of  equal  treatment  must  be  respected.  However,  the
move  towards  private  provision  is  undermining  this  principle:  sex-neutrality  in  state  social
insurance schemes is being gradually replaced by sex differentiation in the private market, in
both the second and third pillars of pension provision. This is all the more important because
arrangements which compensate (in the main) women for various disadvantages they face on
the  labour  market  –  such  as  recognition  of  periods  of  absence  from  the  labour  market  for
reasons of child care, or survivor's benefits – are less common or less generous in second and
third pillar schemes. Moreover, self-employed workers frequently have no option but to resort
to the private market for pension coverage. The numbers of people in self-employment – and
among them the proportion of women – are steadily increasing.

As  the  European  Court  of  Justice  made  clear  in  the  Defrenne  II  case13,  the  proper
implementation  of  equal  treatment  requires  not  only  that  the  law  should  conform  to  the
principle  but  that  rules  found  in  collective  agreements  and  private  contracts  should  also  be
brought into line. The developments in the nature of pension provision make action to require
the  equal  treatment  of  women  and  men  in  the  private  provision  of  pensions  all  the  more
urgent and a necessary corollary of action in the state sector.

The Commission recognises however that the current widespread use of such factors  cannot
be  changed  overnight  without  causing  disruption  and  turbulence  in  the  market.  The
Commission accepts, therefore, that it may be necessary for insurance companies to continue
to take account of actuarial factors based on sex in certain cases during a transitional period.

It  is  also  clear  that  it  is  difficult  for  individual  insurance  companies  to  move  to  sex-neutral
pricing  in  the  face  of  competition  from  other  companies,  as  the  members  of  the  sex  which
benefits from the change will tend to move disproportionately to that company, while those
who are disadvantaged will tend to leave it, thus leaving the company with a portfolio of risks
which it is not able to cover without a general increase in premiums. A move to sex-neutral
pricing  must  therefore  be  co-ordinated  across  the  Union  in  order  to  avoid  potentially

12

13

Case C-200/91
Case C-43/75

8

                                                
damaging  distortions  of  competition.  A  directive,  with  a  sufficiently  long  period  of
transposition, allows such co-ordination to take place and enables the Member States and the
insurance companies to make the necessary adjustments to their legislation and practices.  In
particular,  it  allows  the  space  for  the  industry  and  public  authorities  to  work  together  to
improve the reliability of the lifestyle and other criteria which have a more significant impact
than  sex  on  life  expectancy.  The  use  of  other  such  criteria  will  enable  a  more  accurate
evaluation  of  risk  by  insurers  than  is  currently  the  case  with  the  industry's  over-reliance  on
sex.

The Commission is also concerned that men and women as consumers have little information
as  to  how  these  factors  are  taken  into  account  by  insurance  companies  and  the  impact  that
they have on the level of premiums or contributions they are required to pay in return  for a
certain  level  of  benefit.  This  appears  to  be  especially  true  in  the  field  of  annuities  and  is
particularly important in the situation where, in many Member  States, pensions insurance is
moving away from defined benefit schemes and towards defined contribution schemes14. The
Commission believes that this lack of transparency may act as an impediment to the right of
equal treatment for men and women.

The  Commission proposes  therefore that Member States  should  have  an  option  to  apply  the
principle  of  equal  treatment  to  the  use  of  actuarial  factors  following  a  transitional  period
which should last for a further six years beyond the end of the general transposition period of
two  years,  giving  a  total  of  eight  years  for  insurance  companies  to  adapt  their  practices
following the date of entry into force of the Directive. To aid transparency in the market, the
this  period  compile,  publish  and  regularly  update
Member  States  should  during 
comprehensive mortality and life expectancy tables for their populations on which insurance
companies may draw. In accordance with the Council and European Parliament Directives on
life and non-life insurance, insurance companies may be required to notify the use of any sex-
based tables they apply to the competent authority of their home Member State.

V.

JUSTIFICATION WITH REGARD TO SUBSIDIARITY AND PROPORTIONALITY

The  European  Union  has  long  promoted  the  case  for  intervention  in  the  area  of  equal
treatment  for  men  and  women  in  the  field  of  employment.  More  recently,  it  decided  that
protection against discrimination on grounds of racial and ethnic origin should be extended to
areas  outside  of  the  labour  market,  to  education,  social  protection,  healthcare,  social
advantages  and  the  access  to  and  supply  of  goods  and  services  available  to  the  public,
including  housing.  In  that  context,  the  Union  agreed  that  the  Member  States  acting  alone
could not sufficiently  achieve a common high level of protection against discrimination and
that the objective could be better achieved by the Community.

In  dealing  with  the  question  of  sex  discrimination  in  access  to  goods  and  services,  similar
arguments  apply  with  respect  to  subsidiarity.  Just  as  with  the  Directive  on  Racial
Discrimination,  the  proposal  addresses  a  serious  inequality  which  is  faced  by  millions  of
European  citizens  in  their  everyday  lives.  The  precise  scale  of  discrimination  is  difficult  to
measure. This is in part because, by definition, no record of complaints of sex discrimination
are kept in Member States which have no specific legislation in the field – discrimination as
an  unlawful  act  about  which  it  is  possible  to  complain  only  exists  once  it  is  prohibited.

14

In a defined contribution scheme, the insured person is required or encouraged to invest a capital sum in
an annuity as a source of retirement income.

9

                                                
However  it  is  clear  from  the  experience  of  existing  independent  bodies  promoting  equal
treatment  for  men  and  women  in  the  Member  States  that,  where  they  deal  with  questions
linked to goods and services, they are faced with a wide variety of cases15. In a Eurobarometer
survey carried out in 2002, people saying that they had personally experienced discrimination
on  grounds  of  sex  in  the  area  of  goods  and  services  made  up  just  under  one  quarter  of  the
discrimination reported in this area on all grounds covered by the survey16. In Member States
where legislation does exist, it can be seen that complaints in this area make up a significant
proportion of  those  dealt with by the specialised  bodies  concerned.  In  Ireland,  for  example,
approximately 25% of the cases of sex discrimination cases dealt with so far in 2003 by the
Office for the Director of Equality Investigations have concerned goods and services (with the
remaining  75%  concerning  various  aspects  of  employment).  In  the  Netherlands,  complaints
about  unequal  treatment  based  on  sex  in  the  area  of  goods  and  services  made  up  just  over
10%  of  the  cases  dealt  with  by  the  Equal  Treatment  Commission  in  2002.  It  is  clear,
therefore, that European legislation in this field will meet a previously unmet need in Member
States which do not presently have specific legislation on equal treatment in access to goods
and services.

In  the  case  of  the  sex-based  actuarial  factors,  it  is  clear  that  the  differences  are  widespread
across  large  parts  of  the  European  Union  and  that  their  impact  is  significant.  Without
intervention by the Union, the impact of these differential rules will increase as a result of the
trend  in  Member  States  to  move  from  state  provision  to  private  provision  in  pensions  and
related areas. These inequalities can be addressed comprehensively only by European action
for the following reasons.

The  right  to  equal  treatment  is  fundamental  to  the  conception  of  the  European  Union.  To
ensure that this right is protected at a common minimum level across the Union requires co-
ordinated  action.  As  has  been  seen  in  the  case  of  earlier  action  by  the  Community  dealing
with specific problems of discrimination, this can best be achieved by the co-ordination of the
legal protections provided in each Member State.

Some Member States have already applied the principle of equal treatment to access to goods
and services in their national legislation, but this is done in widely differing ways. Given the
disparities and certain gaps in protection under national laws on equal treatment for men and
women in the access to and supply of goods and services, the proposed Directive will ensure a
common  and  effective  application  of  the  principle  of  equal  treatment  throughout  the  entire
territory  of  the  European  Economic  Area  (see  below).  It  lays  down  general  principles  for
common protection against  sex  discrimination to  be enjoyed  by  citizens  all  over  the  Union,
reinforcing  and  supplementing  the  protections  which  currently  exist  in  the  Member  States,
either  by  widening  the  material  scope  of  such  protections  or  by  providing  or  strengthening
access to redress. In doing so, it will reinforce the fundamental values on which the Union is
founded – equality for men and women, liberty, democracy, the respect for human rights and
fundamental freedoms and the rule of law. And it will help to strengthen economic and social

15

16

For example: Refusal to provide mortgages to pregnant women.; refusal to allow a woman's name to be
put first on joint accounts (with resulting discrimination in entitlement to benefits such as share options,
which  are  frequently  restricted  to  the  first  named  member);  refusal  to  offer  loans  to  people  working
part-time (indirectly discriminatory in the light of  standing  ECJ  case-law  as  the  majority  of  part-time
workers  are  women;  requirement  for  a  woman  to  have  a  guarantor  for  a  loan,  where  a  man  with  a
similar  credit  rating  would  not  face  a  similar  requirement;  sexual  harassment  by  landlords;  different
treatment of men and women in insurance schemes.
Other  grounds  included  racial  and  ethnic  origin,  religion  and  belief,  disability,  age  and  sexual
orientation.

10

                                                
cohesion  by  ensuring  that  people  in  all  Member  States  enjoy  a  basic  level  of  protection
against  sex  discrimination,  with  comparable  rights  to  redress.  By  laying  down  minimum
requirements,  the  proposal  leaves  the  Member  States  a  wide  margin  of  manoeuvre  for  the
purposes  of  attaining  its  goal  and  in  particular  allows  those  with  a  higher  or  wider  level  of
protection for citizens to maintain those levels. A Directive, which leaves sufficient flexibility
to  the  Member  States  as  to  how  to  provide  this  protection  in  practice,  is  the  appropriate
instrument, as in the earlier cases.

As noted earlier in this Explanatory Memorandum, it is difficult for individual companies to
move towards unisex  insurance  rates  in  certain  markets  without  exposing  themselves  to  the
risks of a disproportionate movement of members of one sex or the other either away from or
to their products, thus creating imbalance. The same is true for individual Member States in
the  context  of  the  single  market  in  insurance,  where  a  move  by  a  single  Member  State  to
require  unisex  tariffs  could  expose  its  insurers  to  undercutting  in  part  of  its  market  by
businesses in other Member States. To avoid this risk, it is necessary to co-ordinate  a move
towards  a  unisex  approach  across  the  Union.  Community  legislation  laying  down  broad
objectives but leaving the precise implementation to Member States is the best way to achieve
the  full  implementation  of  the  principle  of  equal  treatment  while  avoiding  the  risks  of
distortion of competition.

However, European Union action should go no further than is required to meet the objective
to  be  achieved.  Not  only  should  the  Union  restrict  itself  to  agreeing  general  principles,  it
should  apply  those  principles  only  to  areas  where  it  is  convinced  that  problems  need  to  be
resolved and that they can be resolved by the action proposed. In this case, the Commission
has  decided  to  propose  a  Directive  with  a  clear  focus  on  one  area  –  goods  and  services  –
where  there  is  evidence  of  the  existence  of  discrimination  and  where  previous  Community
action  (especially  Council  Directive  2000/43/EC)  has  shown  that  a  legal  response  is
appropriate. The Commission has decided not to tackle other areas where either the evidence
was less clear-cut or where it was not apparent that the difficulties could be resolved through
legislative means.

VI

COMMENTARY ON THE ARTICLES

Structure

The structure of the proposed Directive reflects that of the already adopted directives based on
Article 13 EC,  notably  Directive 2000/43/EC implementing the  principle of equal treatment
between persons irrespective of racial or ethnic origin. It comprises four Chapters:

– 

– 

– 

– 

Chapter I – General provisions

Chapter II – Remedies and enforcement

Chapter III – Bodies for the promotion of equal treatment

Chapter IV – Final provisions.

11

General principles

The  proposed  Directive  includes  definitions  of  the  concepts  of  direct  and  indirect
discrimination,  harassment  and  sexual  harassment  (identical  to  the  definitions  recently
adopted 
the
implementation of the principle of equal treatment for men and  women as regards access to
employment, vocational training and promotion, and working conditions).

in  Council  Directive  2002/7317  amending  Directive  76/207/EEC  on 

Further, the maintenance and  adoption  of specific measures  by  Member  States  in  a  specific
area should also be allowed to overcome the weight of accumulated disadvantages linked to
sex suffered by women or men.

Material scope of the Directive

The proposal for a Directive implements the principle of equal treatment between women and
men in the field of the access to and supply of goods and services which are available to the
public, including housing. In this respect, the Directive takes the same approach to the area as
Council Directive 2000/43/EC. The motivation for the coverage of this area is set out above.

Remedies and enforcement

The  proposed  approach  is  consistent  with  that  taken  in  Council  Directive  2000/43/EC  on
Racial Discrimination and in 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 as amended by Directive 2002/73/EC, notably:

– 

– 

– 

– 

judicial and/or administrative procedures providing for adequate penalties

the burden of proof placed on the respondent

protection of victims and witnesses against risks of retaliation

promotion of dialogue with non-governmental organisations.

Chapter I: General provisions

This Chapter is made up of five articles.

Article 1

This article sets out the subject matter and scope of the Directive: laying down a framework
for  combating  discrimination  based  on  sex  in  the  access  to  and  the  supply  of  goods  and
services,  with  a  view  to  putting  into  effect  in  the  Member  States  the  principle  of  equal
treatment between men and women.

The article requires Member States to take the necessary measures to implement the principle
of equal treatment between women and men, in the area of the access to and supply of goods
and  services  available  to  the  public,  including  housing.  The  Directive  does  not  apply  to

17

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,
OJ L 269 of 5.10.2002 p. 0015-0020

12

                                                
transactions which are carried out in a purely private context, such as, for example, the renting
of a holiday home to a family member or the letting of a room in a private house. In this way,
the concept of goods and services has the same meaning as in Council Directive 2000/43/EC
and should be restricted to those which are normally provided for remuneration.

The concept of goods and services available to the public could therefore include:

–  access to premises into which the public are permitted to enter;

–  all types of housing, including rented accommodation and accommodation in hotels;

–  services such as banking, insurance and other financial services;

–  transport; and

–  the services of any profession or trade.

Certain  goods  and  services  are  specifically  designed  for  use  by  members  of  one  sex  (for
example,  single-sex  sessions  in  a  swimming  pool  or  private  membership  clubs).  In  other
cases,  the  same  skills  may  be  practised  differently  depending  on  whether  the  customer  is  a
man  or  a  woman.  This  directive  should  not  interfere  with  such  differences,  where  men  and
women  are  not  in  a  comparable  situation.  To  avoid  inappropriate  interpretations  of  the
prohibition  of  discrimination,  the  article  makes  clear  that  the  directive  does  not  preclude
differences  of  treatment  when  they  are  based  on  goods  or  services  which  are  intended
exclusively or primarily for members of one sex or the other or on skills which are practised
differently for one sex or the other.

To avoid conflict with other fundamental freedoms such  as the freedom and plurality of the
media,  Article  1  makes  clear  that  it  does  therefore  not  apply  to  the  content  of  media  and
advertising.  Nor  does  the  Directive  apply  to  education,  which  is  to  a  large  extent  already
covered by existing Community law.

Article 2

Paragraph 1 defines the concepts of direct discrimination, indirect discrimination, harassment
based on sex and sexual harassment. The definitions are drawn from existing Community law
and do not depart from previously agreed approaches in any way. The concepts of direct and
indirect discrimination and sex-based and sexual harassment are, mutatis mutandis, identical
to  those  contained  in  the  already  adopted  Directives  2000/43/EC  and  2000/78/EC  and
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 as amended by Directive 2002/73/EC.

Harassment on  grounds of sex and sexual harassment do not occur solely  in the workplace,
but can also occur in other areas of an individual’s life, including in the context of providing
goods  and  services.  As  in  Directive  76/207/EEC,  the  two  concepts  are  defined  separately,
because  they  are  distinct  phenomena.  Harassment  based  on  sex  consists  of  unfavourable
treatment of a person related to their sex, though it need not be of a sexual nature (an example
might  be  male  employee  constantly  making  disparaging  remarks  about  women  customers).
Sexual  harassment  consists  of  unwanted  physical,  verbal  or  non-verbal  conduct  of  a  sexual
nature.  Examples  in  this  area  might  include  harassment  by  landlords  of  tenants;  or  by
company  buyers  of  salespeople,  where,  for  example,  sexual  favours  may  be  demanded  in
return for the award of contracts.

13

Paragraph  2  indicates  that  incitement  to  discrimination  is  deemed  to  be  discrimination  as
such.  A  similar  provision  is  already  to  be  found  in  the  existing  Directives  2000/43/EC  and
2000/78/EC based on Article 13 EC and the 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.  The  Commission  proposes  the  use  of  the  term
'incitement', rather than 'instruction' in the English text, in order to align the meanings of the
language versions.

Article 3

This article explains  the  meaning  of  the  application  of  the  principle  of  equal  treatment.  For
this  purpose,  it  uses  the  same  terms  as  Council  Directive  2002/73/EC  amending  Directive
76/207/EC.  It  specifies  that  the  principle  of  equal  treatment  between  men  and  women  shall
mean  that  there  shall  be  no  direct  discrimination  based  on  sex,  including  unfavourable
treatment of women for reasons of pregnancy and maternity, nor indirect discrimination based
on sex. In this context, as in the earlier Directive, harassment and sexual harassment are also
to be considered discrimination based on sex.

Article 4

This  article  makes  clear  that  the  principle  of  equal  treatment  shall  apply  to  the  use  of  sex-
based actuarial factors in the calculation of premiums and benefits in the insurance and related
industries.  In  this  case,  the  Directive  applies  only  to  new  business  which  is  entered  into
following the transposition date.

In addition, to avoid unduly sudden adaptations of the market in insurance, the article allows
the Member States the option of an extended period for the transposition of provisions relating
to actuarial factors.  If the  Member States use this  option,  they  shall  inform  the Commission
and  shall  promote  transparency  in  the  market  by  compiling,  publishing  and  updating
comprehensive tables on the life expectancy of men and women.

Article 5

Following  the  model  of  Council  Directive  2000/43/EC,  paragraph  2  of  this  article  confirms
that  the  Member  States  may  maintain  or  introduce  specific  measures  to  compensate  for
certain  disadvantages  accumulated  by  individuals  of  either  sex  in  the  field  of  goods  and
services.  Such  measures  must  be  shown  to  be  necessary,  focused  on  overcoming  a  specific
disadvantage and must be limited in time, being in force no longer than is necessary to deal
with  the  problem  identified.  For  example,  women  have  traditionally  had  greater  problems
than  men  starting  businesses  as  the  result  of  a  range  of  factors,  including  the  difficulty  of
raising venture capital and gaining support for the development of business ideas. While the
application of the principle of equal treatment is likely to help with this situation, it is unlikely
to be sufficient on its own to overcome the accumulated disadvantage faced by women in this
area.  One response  to this situation has  been  the establishment  of  specific  loans  for  women
entrepreneurs, at special rates or conditions, and the provision of extra business support and
advice services for women  entrepreneurs. This framework of  support  then  encourages  other
investors  to  contribute  their  own  funds  and  so  to  help  overcome  the  historical  difficulties
related to sex. Special services for women entrepreneurs exist in a number of Member States
and in at least one, special banks or lending facilities exist specifically for this purpose. The
Commission believes that this Directive should not prohibit the possibility for such measures
in Member States and therefore that it is necessary to include an option for Member States to
provide for this derogation from the principle of equal treatment.

14

This article is necessary to avoid the unintended effect of prohibiting positive actions in the
field of access to goods and services which, as in the case of those mentioned above, already
exist.  The  absence  of  this  article  would  also  prevent  responses  to  new  needs  for  positive
action which may arise in future.

Article 6

Paragraphs 1 and 2 are standard provisions. Paragraph 1 makes clear that Member States may
have  legislation  providing  for  a  higher  level  of  protection  than  that  guaranteed  by  the
Directive.  Paragraph  2  provides  that  there  should  be  no  lowering  of  the  level  of  protection
against discrimination already afforded by Member States when implementing the Directive.

Chapter II: Remedies and enforcement

This  Chapter  has  four  Articles  and  deals  with  two  main  conditions  for  effective  legislation
against discrimination: the right of victims  to a  personal remedy  against the person or body
who  has  perpetrated  the  discrimination,  and  the  existence  of  an  appropriate  mechanism  in
each Member State to ensure adequate levels  of enforcement.  It uses provisions identical to
those in the earlier Directives based on Article 13.

Article 7

Article 7 relates to procedures (access to justice) which enable the obligations deriving from
the Directive to be enforced. In particular, it provides people who believe they have been the
victim of discrimination with the possibility to pursue their claims through an administrative
and/or judicial procedure to enforce their right to equal treatment.

As  with  the  earlier  Directives  on  discrimination,  the  right  to  challenge  discriminatory
behaviour should extend to situations in which the relationship between the parties has ended.
The  Directive  should  not  however  have  retroactive  effect,  applying  to  such  relationships  only
from the date of its entry into force. National time limits for initiating action are not affected by
this Article.

The right to legal protection is further reinforced by the possibility of allowing organisations
to exercise such rights on behalf of a victim.

Article 8

This Article is a standard provision in Community discrimination law. The wording is based
on  Article  4  of  Council  Directive  97/80/EC18  on  the  burden  of  proof  in  sex  discrimination
cases and the equivalent articles found in the earlier Article 13 Directives, notably Directive
2000/43/EC.  The  Commission  proposes  that  the  burden  of  proof  should  revert  to  the
respondent once the plaintiff has established facts before the court or other body from which
it  may  be  presumed  that  discrimination  has  taken  place.  As  in  the  earlier  Directives  and  in
order to comply with the provisions of the European Convention on the Protection of Human
Rights  and  Fundamental  Freedoms,  this  shift  in  the  burden  of  proof  does  not  apply  to
situations where the criminal law is used to prosecute allegations of discrimination.

18

Council  Directive  97/80/EC  of  15  December  1997  on  the  burden  of  proof  in  cases  of  discrimination
based on sex, OJ L 14 of 20.1.1998.

15

                                                
As  in  its  earlier  proposals,  the  Commission  has  not  included  the  provision  inserted  by  the
Council in previous directives to the effect that Member States need not apply the shift of the
burden of proof to proceedings in which it is for the court or competent body to investigate
the  facts  of  the  case.  The  Commission  notes  that  there  is  considerable  confusion  about  the
meaning of this provision and believes that its inclusion would undermine the legal certainty
of the article as a whole.

Article 9

Effective  legal  protection  for  victims  and  witnesses  of  sex-based  discrimination  must  be
available  in  the  event  of  any  retaliation  by  a  provider  of  a  good  or  a  service.  Victims  and
witnesses could be deterred from exercising their rights due to the risk of reprisals in certain
circumstances.

Article 10

This  provision  aims  to  promote  dialogue  between  relevant  public  authorities  and  non-
governmental  organisations  which  have  a  legitimate  interest  in  contributing  to  the  fight
against  discrimination  on  grounds  of  sex  with  a  view  to  promoting  the  principle  of  equal
treatment.  A  similar  provision  is  contained  in  Community  legislation  dealing  with  racial
discrimination.

Chapter III: Bodies for the promotion of equal treatment – Article 11

This Chapter consists of a sole article which deals with charging bodies at national level with
the  promotion  of  equal  treatment  in  the  fields  covered  by  the  Directive.  It  replicates  the
provisions of Directive 2000/43/EC in as far as they deal with access to and supply of goods
and  services,  and  builds  on  the  equivalent  provision  in  Directive  2002/73/EC,  where  the
Member  States  are  required  to  designate  bodies  to  promote  equal  treatment  for  women  and
men in the labour market. It provides for a framework applicable to bodies  at national level
which  would  act  independently  to  promote  the  principle  of  equal  treatment.  Member  States
may decide that these  bodies would be  the  same as those provided for  in the labour market
field under Council Directive 2002/73/EC and, as in that case, that they should be established
at regional or local level provided that their whole territory is covered by such arrangements.

The  proposal  for  a  Directive  lays  down  a  number  of  requirements  for  such  bodies  in  the
Member States. The latter may take decisions on the structure and operation of such bodies in
accordance with their legal traditions and policy choices.

Chapter IV: Final provisions

The  four  Articles  of  Chapter  V  are  standard  provisions  which  appear  in  many  Community
directives.

Article 12

This  article  is  a  classic  provision,  contained  in  all  previous  Community  instruments  on
discrimination, which  concerns  compliance  with the Directive by the Member States.  Equal
treatment  involves  the  elimination  of  discrimination  arising  from  any  laws,  regulations  or
administrative provision and the Directive therefore requires the Member States to abolish any
such  provisions.  As  with  earlier  legislation,  the  Directive  also  requires  that  any  provisions
contrary  to  the  principle  of  equal  treatment  must  be  rendered  null  and  void  or  amended,  or
must be capable of being so rendered if they are challenged.

16

Article 13

This article is a standard provision dealing with sanctions for breach of the principle of equal
treatment. Equivalent provisions are found in the earlier Directives based on Article 13.

Article 14

This article is a standard provision on the need for transparency, bringing information on the
provisions in the field covered by the Directive to relevant persons.

Article 15

This provision sets out the procedures for monitoring and reporting on the implementation of
the principle of equal treatment. The reporting procedures require:

–  a report following the transposition of the directive but before the expiry of the transitional
period foreseen for the phasing  out of  the  use  of  sex-based  actuarial  factors  in  insurance
etc; and

–  a  second  report  two  years  after  the  end  of  the  transitional  period  for  sex-based  actuarial

factors; and

–  continuing monitoring, with reports every five years thereafter.

The  impact  of  the  Directive  will  therefore  be  carefully  assessed  and  any  adjustments  which
are required to the legal framework will be able to be proposed in a timely manner.

Article 16

This  provision  sets  out  the  procedures  for  the  implementation  of  the  Directive.  The
Commission  proposes that the Member  States  should in  general  have  a  period  of  two  years
within which to transpose the Directive into national law (see also Article 4 above).

In line with recently agreed practice, the article requires the Member States to notify the text
of  the  provisions  adopted  in  transposition  of  the  Directive,  along  with  a  correlation  table
between those provisions and the Directive.

Article 17

This provision concerns the date of the Directive’s entry into force.

Article 18

This provision makes clear that the Directive is addressed to the Member States.

VII. APPLICATION TO THE EUROPEAN ECONOMIC AREA

This text is of relevance to the European Economic Area and the Directive will be applicable
to  the  non-EU  Member  States  of  the  European  Economic  Area  following  a  decision  of  the
EEA Joint Committee.

17

2003/0265(CNS)

Proposal for a

COUNCIL DIRECTIVE

implementing the principle of equal treatment between women and men in
the access to and supply of goods and services

THE COUNCIL OF THE EUROPEAN UNION,

Having regard to the Treaty establishing the European Community and in particular Article 13(1)
thereof,

Having regard to the proposal from the Commission19,

Having regard to the opinion of the European Parliament20,

Having regard to the opinion of the Committee of the Regions21,

Having regard to the opinion of the European Economic and Social Committee22,

Whereas:

(1) 

(2) 

In accordance with Article 6 of the Treaty on European Union, the 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
respects  fundamental  rights  as  guaranteed  by  the  European  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 Elimination 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  European
Convention for the Protection of Human Rights and Fundamental Freedoms, to which
all Member States are signatories.

19

20

21

22

OJ
OJ
OJ
OJ

18

                                                
(3) 

(4) 

(5) 

(6) 

(7) 

(8) 

(9) 

Equality between men and women is a fundamental principle of the European Union.
Articles  21  and  23  of  the  Charter  of  Fundamental  Rights  of  the  European  Union
prohibit any discrimination on  grounds of sex and require equality between men and
women to be ensured in all areas.

Article 2 of the Treaty establishing the European Community provides that promoting
such  equality  one  of  the  Community’s  essential  tasks.  Similarly,  Article  3(2)  of  the
Treaty  requires  the  Community  to  aim  to  eliminate  inequalities  and  actively  to
promote equality between men and women in all its activities.

The Commission announced its intention to propose a directive on sex discrimination
outside  of  the  labour  market  in  its  Communication  on  the  Social  Policy  Agenda23.
Such a proposal is fully consistent with Council Decision 2001/51/EC of 20 December
2000  establishing  a  Programme  relating  to  the  Community  framework  strategy  on
gender  equality  (2001-2005)24  covering  all  Community  policies  and  aimed  at
promoting equality for women and men by adjusting these policies and implementing
practical measures to improve the situation of women and men in society.

The  European  Council  at  its  meeting  in  Nice  in  December  2000  called  on  the
Commission to reinforce equality-related rights by adopting a proposal for a directive
on promoting gender equality in areas other than employment and professional life.

The Community has adopted a range of legal instruments to prevent and combat sex
discrimination  in  the  labour  market.  These  instruments  have  proved  the  value  of
legislation in the fight against discrimination.

Discrimination  based  on  sex  and  harassment  also  take  place  in  areas  outside  of  the
labour market. Such discrimination can be equally damaging, acting as a barrier to the
full and successful integration of women and men into economic and social life.

Problems  are  particularly  apparent  in  the  area  of  goods  and  services.  Discrimination
based on sex, should therefore be prevented and eliminated in this area. As in the case
of Council Directive 2000/43/EC of 29 June 2000 implementing the principle of equal
treatment irrespective of racial and ethnic origin25,  this  objective can be  achieved by
means of Community legislation.

(10)  Such  legislation  should  prohibit  discrimination  based  on  sex  in  the  access  to  and
supply of goods and services. Services should be taken to be those which are normally
provided for remuneration.

(11)  While  prohibiting  discrimination,  it  is  important  to  respect  other  fundamental  rights
and  freedoms,  including  the  protection  of  private  and  family  life  and  transactions
carried out in that context and the freedom and pluralism of the media. The prohibition
of discrimination should therefore apply to access to and supply of goods and services
which  are  available  to  the  public.  It  should  not  apply  to  the  content  of  media  or
advertising

23

24

25

COM(2000)379 final.
Council  Decision  of  20 December  2000  establishing  a  Programme  relating  to  the  Community
framework strategy on gender equality (2001-2005) 0J L 17, 19.1.2001.
Council Directive 2000/43/EC implementing the principle of equal treatment irrespective of racial and
ethnic origin (OJ L 180 of 19.7.2000 p.0022-0026).

19

                                                
(12)  The principle of equal treatment should not preclude differences which are related to
goods or services for which men and women are not in a comparable situation because
the  goods  or  services  are  intended  exclusively  or  primarily  for  the  members  of  one
sex, such as private membership clubs, or to skills which are practised differently for
each sex.

(13)  The use of actuarial factors related to sex is widespread in the provision of insurance
services, even when such differences do not necessarily reflect objective differences.
Consequently, in order to ensure equal treatment between men and women, the use of
actuarial factors related to sex should be eliminated. To avoid a sudden readjustment
of  the  market,  the  prohibition  of  the  use  of  such  factors  should  apply  only  to  new
contracts  concluded  after  the  date  of  transposition  of  this  Directive  and  should  be
phased in over a sufficiently long period. The Directive should not therefore apply to
the use of such factors in contracts concluded for the first time before that date.

(14)  Where  this  transitional  period  is  used  by  Member  States,  the  use  of  actuarial  factors
related  to  sex  when  calculating  premiums  and  benefits  accruing  from  insurance  and
other  financial  services  should  be  sufficiently  transparent  for  the  consumer.  To  this
end,  the  Member  States  should  compile,  publish  and  regularly  update  tables  of
actuarial data for the guidance of insurance companies.

(15)  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,
associations,  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.

(16)  The  effective  implementation  of  the  principle  of  equal  treatment  requires  adequate

judicial protection against victimisation.

(17)  The rules on the burden of proof should be adapted when there is a prima facie case of
discrimination and, for  the principle of equal treatment  to  be  applied  effectively,  the
burden  of  proof  should  shift  back  to  the  defendant  when  evidence  of  such
discrimination is brought.

(18)  Member States should take the necessary measures to ensure that all laws, regulations
and  administrative  provisions  at  variance  with  the  principle  of  equal  treatment  are
rendered null and void or amended.

(19)  Member  States  should  engage  in  dialogue  with  non-governmental  organisations  to

address and combat different expressions of discrimination based on sex.

(20)  Protection  against  discrimination  based  on  sex  should  itself  be  strengthened  by  the
existence of a body or bodies in each Member State, with competence to analyse the
problems involved, to study possible solutions and to provide concrete assistance for
the victims. The body or bodies may be the same as those designated in the area of the
labour  market  in  accordance  with  Directive  2002/73/EC  of  the  European  Parliament
and the Council of 23 September 2002 amending Council Directive 76/207/EC on the

20

implementation  of  the  principle  of  equal  treatment  for  men  and  women  as  regards
access to employment, vocational training and promotion, and working conditions26.

(21)  This Directive lays down minimum requirements, thus giving the Member States the
option of maintaining or introducing more favourable provisions. The implementation
of this Directive should not serve to justify any regression in relation to the situation
which already prevails in each Member State.

(22)  Member States should provide for effective, proportionate and dissuasive sanctions in

cases of breaches of the obligations under this Directive.

(23)  Since the objectives of the proposed action, namely to ensure a common high level of
protection  against  discrimination  in  all  the  Member  States,  cannot  be  sufficiently
achieved by the Member States and can, therefore, by reason of the scale and effects of
the action, be better achieved at Community level by putting in place a common legal
framework, the Community may adopt measures, in accordance with the principle of
subsidiarity as set out  in  Article  5  of the Treaty.  In accordance with  the  principle  of
proportionality,  as  set  out  in  that  Article,  this  Directive  does  not  go  beyond  what  is
necessary in order to achieve those objectives,

HAS ADOPTED THIS DIRECTIVE:

CHAPTER I - GENERAL PROVISIONS

Article 1

Subject Matter and Scope

This Directive lays down  a framework  for combating discrimination based on sex in
1.
access  to  and  the  supply  of  goods  and  services,  with  a  view  to  putting  into  effect  in  the
Member States the principle of equal treatment between men and women.

Within  the  limits  of  the  powers  conferred  upon  the  Community,  this  Directive  shall
2.
apply to all persons in relation to the access to and the supply of goods and services which are
available  to  the  public,  including  housing,  as  regards  both  the  public  and  private  sectors,
including public bodies.

3.
This Directive does not preclude differences which are related to goods or services for
which men and women  are  not  in  a  comparable  situation  because  the  goods  or  services  are
intended exclusively or primarily for the members of one sex or to skills which are practised
differently for each sex.

4.
This Directive shall not apply to education nor to the content of media and advertising,
in  particular  advertising  and  television  advertising  as  defined  in  Article  1(b)  of  Council
Directive 89/552/EEC.

26

OJ L269, 5.10.2002, p.15.

21

                                                
Article 2

Definitions

1.

For the purposes of this Directive, the following definitions shall apply:

(a)  direct  discrimination  occurs  where  one  person  is  treated  less  favourably,  on
grounds  of  sex,  than  another  is,  has  been  or  would  be  treated  in  a  comparable
situation;

(b) indirect discrimination occurs 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;

(c)  harassment  occurs  where  unwanted  conduct  related  to  the  sex  of  a  person  is
exhibited  with  the  purpose  or  effect  of  violating  the  dignity  of  a  person  and  of
creating an intimidating, hostile, degrading, humiliating or offensive environment;

(d) sexual harassment occurs where unwanted physical, verbal or non-verbal conduct
of a sexual nature is exhibited with the purpose or effect of violating the dignity of a
person  and  of  creating  an  intimidating,  hostile,  degrading,  humiliating  or  offensive
environment;

Incitement to direct or indirect discrimination on grounds of sex shall be deemed to be

2.
discrimination within the meaning of this Directive.

Article 3

Principle of equal treatment

For the purposes of this Directive, the principle of equal treatment between men and

1.
women shall mean that

there shall be no direct discrimination based on sex, including less favourable

(a)
treatment of women for reasons of pregnancy and maternity;

(b)

there shall be no indirect discrimination based on sex.

2.
Harassment  and  sexual  harassment  within  the  meaning  of  this  Directive  shall  be
deemed  to  be  discrimination  on  the  grounds  of  sex  and  therefore  prohibited.  A  person's
rejection of, or submission to, such conduct may not be used as a basis for a decision affecting
that person.

Article 4

Actuarial factors

1.
Member  States  shall  ensure  that  the  use  of  sex  as  a  factor  in  the  calculation  of
premiums and benefits for the purpose of insurance and related financial services is prohibited
in all new contracts concluded after [date referred to in Article 16(1)] at the latest.

22

Member States may  defer implementation of  the  measures  necessary  to  comply  with

2.
paragraph 1 until [six years after date referred to in paragraph 1] at the latest.

In  that  case,  the  Member  States  concerned  shall  immediately  inform  the  Commission.  They
shall  compile,  publish  and  regularly  update  comprehensive  tables  on  the  mortality  and  life
expectancy of women and men.

Article 5

Positive action

The  principle  of  equal  treatment  shall  not  prevent  any  Member  State  from  maintaining  or
adopting specific measures to prevent or compensate for disadvantages linked to sex.

Article 6

Minimum requirements

Member States may introduce or maintain provisions which are more favourable to the
1.
protection of the principle of equal treatment between women and men than those laid down
in this Directive.

The implementation of this Directive shall under no circumstances constitute grounds
2.
for a reduction in the level of protection against discrimination already afforded by Member
States in the fields covered by this Directive.

CHAPTER II
REMEDIES AND ENFORCEMENT

Article 7

Defence of rights

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

2.
Member States shall introduce into their national legal systems such measures as are
necessary to ensure real and compensation or reparation, as the Member States so determine,
for the loss and damage sustained by a person injured as a result of discrimination within the
meaning  of  this  Directive,  in  a  way  which  is  dissuasive  and  proportionate  to  the  damage
suffered. Such compensation or reparation shall not be restricted by the fixing of a prior upper
limit.

3.
Member  States  shall  ensure  that  associations,  organisations  or  other  legal  entities,
which  have,  in  accordance  with  the  criteria  laid  down  by  their  national  law,  a  legitimate

23

interest in ensuring that the provisions of  this  Directive  are  complied  with,  may  engage,  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 national rules on time limits for bringing

4.
actions relating to the principle of equal treatment.

Article 8

Burden of proof

Member  States  shall  take  such  measures  as  are  necessary,  in  accordance  with  their
1.
national  judicial  systems,  to  ensure  that,  when  persons  who  consider  themselves  wronged
because the principle of equal treatment has not been applied to them establish, before a court
or other competent authority, facts from which it may be presumed that there has been direct
or indirect discrimination, it shall be for the respondent to prove that there has been no breach
of the principle of equal treatment.

Paragraph  1  shall  not  prevent  Member  States  from  introducing  rules  of  evidence

2.
which are more favourable to plaintiffs.

3.

Paragraph 1 shall not apply to criminal procedures.

Paragraphs 1, 2 and 3 shall also apply to any proceedings brought in accordance with

4.
Article 7(3).

Article 9

Victimisation

Member  States  shall  introduce  into  their  national  legal  systems  such  measures  as  are
necessary to protect persons from any adverse treatment or adverse consequence as a reaction
to  a  complaint  or  to  legal  proceedings  aimed  at  enforcing  compliance  with  the  principle  of
equal treatment.

Article 10

Dialogue with non-governmental organisations

Member  States  shall  engage  in  dialogue  with  appropriate  non-governmental  organisations
which  have,  in  accordance  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.

24

CHAPTER III
BODIES FOR THE PROMOTION OF EQUAL TREATMENT

Article 11

1.
Member  States  shall  designate  and  make  the  necessary  arrangements  for  a  body  or
bodies for the promotion, analysis, monitoring and support of equal treatment of all persons
without discrimination on the grounds of sex. These bodies may  form part of agencies  with
responsibility  at  national  level  with  the  defence  of  human  rights  or  the  safeguard  of
individuals' rights, or bodies with responsibility for implementation of the principle of equal
treatment  for  men  and  women  as  regards  access  to  employment,  vocational  training  and
promotion, and working conditions.

Member  States  shall  ensure  that  the  competencies  of  the  bodies  referred  to  in

2.
paragraph 1 include:

(a) without prejudice to the rights of victims and of associations, organisations or
other  legal  entities  referred  to  in  Article  7(3),  providing  independent  assistance  to
victims of discrimination in pursuing their complaints about discrimination;

(b)

conducting independent surveys concerning discrimination;

publishing  independent  reports  and  making  recommendations  on  any  issue

(c)
relating to such discrimination.

CHAPTER IV
FINAL PROVISIONS

Article 12

Compliance

Member  States  shall  take  the  necessary  measures  to  ensure  that  the  principle  of  equal
treatment is respected in relation to the access to and supply of goods and services within the
scope of this directive, and in particular that:

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

(b)  any  provisions  contrary  to  the  principle  of  equal  treatment  included  in  individual  or
collective contracts or agreements, internal rules of undertakings, and rules governing profit-
making  or  non-profit-making  associations  are,  or  may  be  declared,  null  and  void  or  are
amended.

25

Article 13

Penalties

The Member States shall lay down the rules on penalties applicable to infringements of the
national provisions adopted pursuant to this Directive and shall take all measures necessary to
ensure that they are implemented. The penalties provided for must be effective, proportionate
and dissuasive. The Member States shall notify those provisions to the Commission by the
date specified in Article 16(1) at the latest and shall notify it without delay of any subsequent
amendment affecting them.

Article 14

Transparency

Member  States  shall  ensure  that  the  provisions  adopted  pursuant  to  this  Directive,  together
with  the  relevant  provisions  already  in  force,  are  brought  to  the  attention  of  the  persons
concerned by all appropriate means throughout their territory.

Article 15

Reports

1.
Member States shall communicate all available information concerning the application
of this Directive to the Commission, by [five years after the date of entry into force ] at the
latest, and every five years thereafter.

The  Commission  shall  draw  up  a  summary  report  which  it  shall  submit  to  the  European
Parliament and to the Council. Where appropriate, the Commission shall accompany its report
with proposals to modify the Directive.

The  Commission's  report  shall  take  into  account  the  viewpoints  of  industry  and

2.
relevant non-governmental organisations.

Article 16

Transposition

1.
Member  States  shall  bring  into  force  the  laws,  regulations  and  administrative
provisions necessary to comply with this Directive by [two years after the date of entry into
force of this Directive] at the latest. They shall forthwith communicate to the Commission the
text of those provisions and a correlation table between those provisions and this Directive.

When Member States adopt those provisions, they shall contain a reference to this Directive
or be accompanied by such a reference on the occasion of their official publication. Member
States shall determine how such reference is to be made.

Member States shall communicate to the Commission the text of the main provisions

2.
of national law which they adopt in the fields covered by this Directive.

26

Article 17

Entry into force

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

Article 18

Addressees

This Directive is addressed to the Member States.

Done at Brussels,

For the Council
The President

27