Proposal for a Directive of the European Parliament and of the Council on the implementation of the principle of equal opportunities and equal treatment of men and women in matters of employment and occupation (recast version)
Date: 2004-04-21
Institutions: European Commission
Subjects: employment policy, equal treatment, gender equality, labour market

COMMISSION OF THE EUROPEAN COMMUNITIES 

Brussels, 21.04.2004 
COM(2004) 279 final 

2004/0084 (COD) 

Proposal for a 

DIRECTIVE OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL 

on the implementation of the principle of equal opportunities and equal treatment of 
men and women in matters of employment and occupation 

(recast version) 

(presented by the Commission) 

EN 

   EN 

 
 
 
 
 
EXPLANATORY MEMORANDUM 

1. GENERAL CONSIDERATIONS 

The objective of this proposal for a European Parliament and Council Directive is to simplify, 
modernise and improve the Community law in the area of equal treatment between men and 
women by putting together in a single text provisions of Directives linked by their subject in 
order to make Community legislation clearer and more effective for the benefit of all citizens. 
This  proposal  for  a  Directive  is  also  grounded  in  the  general  context  of  the  new  legal  and 
political environment which aims to make the Union more open, understandable and relevant 
to daily life.  

Equal treatment for men and women is a fundamental principle of the European Union. From 
the beginning the provisions of primary legislation set out in the Treaty of Rome stated this 
and  since  then,  subsequent  amendments  have  reinforced  it,  thus  making  it  integral  to  the 
European Union's social policy. 

The principle of equal treatment has developed from an isolated provision on equal pay in the 
Treaty of Rome, to a very important and far reaching acquis in the area of equality– a feature 
that sets Europe to the fore internationally. Article 2 EC recognises equality between men and 
women  as  a  fundamental  principle  and  one  of  the  objectives  and  tasks  of  the  Community. 
Moreover,  under  Article  3(2)  EC  a  specific  mission  is  conferred  on  the  Community  i.e.  to 
mainstream equality between men and women in all its activities. 

The  Amsterdam  Treaty  increased  significantly  the  primary  law  and  the  European  Union's 
ability to take action in the area of equal opportunities and equal treatment between men and 
women by giving to the Community legislator specific legal bases (articles 13, 137, 141 EC). 
These  Treaty  developments  constitute  an  explicit  embodiment  of  the  Court's  statement  that 
the  elimination  of  discrimination  based  on  sex  forms  part  of  fundamental  rights.  The  Court 
has  stressed  that  Article  141  (as  it  had  previously  in  the  case  of  ex-Article  119  of  the  EC 
Treaty)  forms  part  of  the  social  objectives  of  the  Community,  which  is  not  merely  an 
Economic  Union  but  is  at  the  same  time  intended,  by  common  action,  to  ensure  social 
progress  and  seek  constant  improvements  in  living  and  working  conditions.  The  Court  has 
concluded  that  the  economic  aim  pursued  by  Article  141  EC  is  secondary  to  the  social  aim 
pursued by the same provision, which constitutes the expression of a fundamental right1. 

The  Charter  of  fundamental  rights  of  the  European  Union,  signed  in  Nice  on  the 
7th December 2000,  also  recognises  in  Article  23  equality  between  men  and  women  as  a 
fundamental principle. 

Significant  progress  has  also  been  accomplished  in  terms  of  secondary  legislation.  The 
existing  Directives  have  laid  the  legal  ground  for  radical  changes  in  national  legislation, 
attitudes  and  practices,  while  the  Court  by  its  caselaw  has  helped  to  clarify  and  further 
develop the interpretation and scope of the principle of equal treatment.  

From  a  first  Directive  (75/117/EEC)  on  equal  pay  which  was  adopted  on  the  basis  of  ex-
Article  100  in  1975,  and  which  further  implemented  and  applied  ex-Article  119  of  the  EC 
Treaty, the scope of equal treatment has been extended in order to cover other areas of social 

1 

Judgment  of  the  Court  of  10  February  2000.  Deutsche  Post  AG  v  Elisabeth  Sievers  (C-270/97)  and 
Brunhilde Schrage (C-271/97). Joined cases C-270/97 and C-271/97. ECR 2000 p. I-00929 

2 

 
 
  
 
                                                 
policy.  In  1976  a  second  Directive,  dealing  with  equal  treatment  relating  to  access  to 
employment, vocational training, promotion and working conditions (Directive 76/207/EEC), 
was adopted on the basis of ex-Article 235 EC. In 1979, a third Directive (79/7/EEC), relating 
to  the  progressive  implementation  of  the  principle  of  equal  treatment  in  matters  of  social 
security (statutory schemes), was adopted on the basis of ex-Article 235 EC.  

In 1986 two further Directives were adopted, one on the basis of ex-Articles 100 and 235 of 
the EC Treaty in relation to occupational social security schemes (86/378/EEC) and the other, 
on the basis of ex-Article 235 of the EC Treaty, on the application of the principle of equal 
treatment  between  men  and  women  engaged  in  an  activity,  including  agriculture,  in  a  self-
employed  capacity,  and  on  the  protection  of  self-employed  women  during  pregnancy  and 
motherhood (86/613/EEC).  

The  successive  modifications  of  the  Treaty  permitted  the  adoption  of  Directives  with  new 
legal bases and under other procedures emphasising, inter alia, the role the social partners can 
play in the area of equality, namely Directives on the protection of pregnancy and maternity 
(92/85/EEC) adopted on the basis of ex-Article 118A of the EC Treaty and on parental leave 
(96/34/EC). Directive 96/34/EC was the first Directive adopted following the first agreement 
of social partners at Community level after the Maastricht Treaty under Agreement on social 
policy, annexed to the Protocol (No 14) on social policy, annexed to the Treaty establishing 
the European Community, and in particular Article 4 (2) thereof. 

Following  a  series  of  important  judgements  of  the  Court  of  Justice,  it  was  felt  necessary  to 
adopt the post Barber Directive 96/97/EC, amending Directive 86/378/EEC, in order to ensure 
conformity between Directive 86/378 and ex-Article 119 (new Article 141), as interpreted by 
the Court in the Barber and subsequent judgements.  

Caselaw of the Court and the need for effectiveness of Community law prompted the Council, 
on the basis of a Commission proposal, to adopt Directive 97/80/EC on the burden of proof 
under  the  Agreement  on  social  policy,  annexed  to  the  Protocol  (No  14)  on  social  policy, 
annexed to the Treaty establishing the European Community, and in particular Article 2 (2) 
thereof. 

Based  on  different  legal  bases,  the  existing  Directives  (with  their  amendments)  provide  a 
strong legislative environment. There is no doubt, however, that they need to be updated and 
simplified in order to guarantee greater clarity and certainty across an enlarged Union and in 
order to be more readable.  

The  recent  modification  of  Directive  76/207/EEC  by  Directive  2002/73/EC,  adopted  under 
the specific legal base of Article 141(3) EC which was introduced by the Amsterdam Treaty, 
also  demonstrated  that  the  legislator  agreed  that  there  is  a  real  need  to  update  the  existing 
Directives (some of which are more than twenty years old). Directive 2002/73/EC takes into 
account the new  developments  in  the  Treaty (the legal means to implement  the  principle of 
equal  treatment  and  work  towards  achieving  equality  between  men  and  women  was 
considerably  enhanced  after  the  Treaty  of  Amsterdam),  the  caselaw  of  the  Court  (which 
developed  considerably  the  principle  of  equal  treatment)  and  the  adoption  of  other  similar 
legislation (Directives 2000/43/EC and 2000/78/EC based on Article 13 EC). 

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In  this  context,  the  legislation  on  equal  treatment  between  men  and  women  has  been 
identified  as  a  priority  policy  area  for simplification,  modernisation  and  improvement2.  The 
general aim of simplifying and improving the legislative environment is particularly relevant 
in the case of equal treatment legislation as individual men and women are directly affected 
by it and need to have their individual rights clearly set out.  

2. RESULTS OF THE CONSULTATIONS AND OF THE IMPACT ASSESMENT 

In July 2003, the Commission launched a consultation on the Web3, aimed at inviting Member 
States,  and  other  stakeholders  (Social  Partners,  NGOs,  Women's  associations  as  well  as 
individuals) to present their views on the Commission's initiative. The consultation was based on 
an  Options  Paper  setting  out  the  three  options  which  could  be  pursued  in  the  process  of 
simplification,  modernisation  and  improvement  of  legislation  in  the  field  of  equal  treatment 
between men and women. Thirty responses were received from Member States, social partners, 
institutions  dealing  with  equal  treatment  and  NGOs.  The  comments  were  throughout 
constructive.  Most  of  the  responses  took  the  view  that  simplification,  modernisation  and 
improvement  are  necessary.  In  broad  terms,  the  Governments  who  responded,  as  well  as  the 
stakeholders  from  industry,  commerce  and  the  liberal  professions,  sought  an  approach  that 
implied less change, while more far reaching changes to the Community legislative framework 
were favoured by representatives of employees and NGOs. 

An  informal  meeting  with  experts  from  Member  States,  Acceding  Countries  and  EFTA 
Countries  took  place  on  3  October  2003.  The  meeting  was  used  to  further  explain  the  policy 
options and to have a more in-depth discussion on these options. The Commission's initiative to 
clarify and simplify Community legislation, while preserving the acquis, was broadly accepted as 
the correct approach. Pure codification was favoured by some participants but it appeared that 
others were more in favour of moderate changes through a recasting of the existing legislation 
while some others again supported a more far reaching approach. The importance of preserving 
the  present  acquis  fully,  while  integrating  only  those  judgements  of  the  Court  that  were  well 
established jurisprudence, was stressed.  

An informal exchange of views also took place with the social partners represented at EU level 
(UNICE, CEEP, UEAPME, ETUC).  

On 19 October 2003, the Commission's Advisory Committee on equal opportunities adopted an 
Opinion on this issue, while clarifying that given the nature of the Committee and the status of its 
members, the opinion does not reflect nor bind Member State Governments. The opinion is in 
favour  of  a  new  recast  directive  including  the  maternity  directive.  UNICE's,  UEAPME's  and 
CEEP's  representatives  adopted  a  separate  position,  attached  to  the  Opinion,  in  favour  of  a 
simplification without any modification to existing legislation. 

The  Commission's  services  also  conducted  an  Extended  Impact  Assessment  (attached  as  an 
annex).  

In the light of the comprehensive analysis of possible options for the improvement of the EC 
equal treatment legislative framework, it appears that a new recast directive, would best meet 

2 

3 

Communication  from  the  Commission  to  the  Council,  the  European  Parliament  and  the  Economic  and  Social 
Committee of 24.1.2003 "Updating and simplifying the Community acquis", COM(2003)71final. 
http://europa.eu.int/comm/employment_social/news/2003/jul/consultation_en.html. 

4 

 
 
  
 
                                                 
the requirements of updating, simplifying, modernising and improving the Community acquis 
in this area. It is therefore proposed to present a directive that: 

– 

– 

– 

– 

provides  a  single  coherent  text  on  the  basis  of  consolidated  Directives,  clearly 
structured  into  different  chapters  with  horizontal  and  specific  provisions,  and 
coherent  definitions.  The  text  reflects  the  relationship  between  different  aspects  of 
equal  treatment  and  demonstrates  how  these  are  linked  to  each  other,  following 
common principles. 

reflects clearly settled caselaw and thus contributes to legal certainty and clarity. 

reflects clearly the application of the horizontal provisions of Directive 2002/73/EC 
and the Directive on the reversal of the burden of proof in cases of discrimination on 
grounds of sex to equal pay and occupational social security schemes.  

provides  the  necessary  support  to  accelerate  the  effective  implementation  of  equal 
treatment in order to reach Community socio-economic policy goals. 

This proposal reflects the option consisting of amalgamating all the Directives implementing 
the  principle  of  equal  pay  between  men  and  women  (including  equal  treatment  in 
occupational social  security schemes),  as well  as the Directives on equal  treatment between 
men  and  women  relating  to  access  to  employment,  vocational  training  and  promotion,  and 
working conditions and the Directive on the burden of proof. 

This  proposal  serves  several  purposes:  firstly  it  takes  the  form of  a  single  instrument  in  the 
interests of reader-friendliness and clarity; it streamlines the implementation of the principle 
of  equal  treatment  between  men  and  women  relating  to  work  and  occupation;  finally  it 
improves the acquis in these areas by integrating the caselaw of the Court. 

3. THE MEASURES LAID DOWN IN THE PROPOSAL FOR A DIRECTIVE 

From  a  general  point  of  view,  the  current  proposal  for  a  European  Parliament  and  Council 
Directive aims to implement the principle of equal treatment in matters covered by previous 
Directives regrouped in one text. To this end the purpose of the proposal is: 

-  to  ensure  the  implementation  and  application  of  the  principle  of  equal  opportunities  and 
equal  treatment  of  men  and  women  in  matters  regarding  access  to  employment,  vocational 
training and promotion, and working conditions, including the principle of equal pay for equal 
work or work of equal value, and  

- to ensure that the measures taken by the Member States to implement the principles of equal 
pay  and  of  equal  treatment  are  made  more  effective,  in  order  to  enable  all  persons  who 
consider themselves wronged, because these principles have not been applied to them, to have 
their rights established/asserted by judicial process after possible recourse to other competent 
bodies. 

The principal innovations of the current proposal are the following: 

- integration of the caselaw of the ECJ concerning in particular: 

5 

 
 
  
 
- equal pay attributable to a single source – Lawrence as well as Allonby judgments4 - (see 
Article 4 of current proposal and recital 9); 

-  equal  treatment  and  public  servants  pension  schemes  –  caselaw  of  the  Court  in  Beune, 
Evrenopoulos and Niemi judgments5 – (see Article 6(2) of current proposal and recital 12); 

- clarification of the extension of the protection of pregnant workers to all working conditions 
and not only to the right to return to their previous job or to an equivalent post - modifications 
introduced by Directive 2002/73/EC by its Article 1 point 2 paragraph 7 replacing Article 2 of 
Directive  76/207/EEC  in  line  with  the  ECJ  caselaw  –  (see  Article  15(1)  and  (2)  of  current 
proposal);  

-  application  of  definitions  contained  in  Directive  2002/73/EC  to  all  areas  covered  by  the 
present proposal (see Article 2 of current proposal and recital 5); 

- extension of the rules on the burden of proof to all areas falling within the material scope of 
the  proposal–  guaranteeing  the  effectiveness  of  the  principle  of  equal  treatment  (as  seen  by 
analogy  in  respect  of  non-discrimination  in  the  Article  13  Directives)  –  (see  Article  20  of 
current proposal); 

-  extension  of  provisions  on  defence  of  rights  by  associations  having  a  legitimate  interest, 
introduced by Directive 2002/73/EC, to other areas covered by the present proposal - in line 
with changes made by Directive 2002/73/EC– (see Article 17 (2) of current proposal); 

-  extension  of  the  provision  clarifying  the  question  of  national  rules  on  time  limits  for  the 
bringing of claims, to all other areas covered by the present proposal - in line with Article 6 of 
Directive  76/207/EEC  as  amended  by  Directive  2002/73/EC–  (see  Article  17  (3)  of  current 
proposal); 

- extension of the caselaw on sanctions/penalties to all areas covered by the present proposal - 
in  line  with  changes  made  by  Directive  2002/73/EC  -  (see  Articles  18  and  26  of  current 
proposal); 

- extension of rules on bodies for the promotion of equal treatment as well as provisions on 
social dialogue to all other areas covered by the present proposal - in line with changes made 
by Directive 2002/73/EC - (see Articles 21 to 23 of current proposal);  

- extension of gender mainstreaming obligation to the other areas of equal treatment covered 
by the present proposal - in line with Article 3 (2) EC and in conformity with Article 1 (1a) of 
Directive  76/207/EEC,  as  inserted  by  Directive  2002/73/EC  by  its  Article  1  point  1  -  (see 
Article 29 of current proposal); 

- introduction of a re-examination clause – this is a standard clause - (see Article 32 of current 
proposal). 

The proposal is structured in five titles as follows. 

4 

5 

Judgments of the Court of 17 September 2002. A. G. Lawrence and Others v Regent Office Care Ltd, 
Commercial  Catering Group and  Mitie  Secure  Services  Ltd.  Case  C-320/00.  European  Court  Reports 
2002 Page I-07325 and Allonby, C-256/01 
Judgments  of  the  Court  of  28  September  1994  Case  C-7/93  Beuene  ECR  1994  page  I-4471; 
17 April 1997  Case  C-147/95  Evrenopoulos,  ECR  1997  p  I-2057;  and  12  September  2002  Case  C-
351/00 Neimi, ECR 2002 p. I-07007 

6 

 
 
  
 
                                                 
TITLE I GENERAL PROVISIONS  

The aim of the proposal is specified in this title i.e. to ensure the application of the principle 
of equal opportunities and equal treatment of men and women in matters of employment and 
occupation. 

This title also provides for the application of the definitions (direct and indirect discrimination 
and  harassment  and  sexual  harassment)  contained  in  Directive  2002/73/EC  to  the  matters 
covered  by  the  other  Directives  regrouped  in  the  proposal.  It  also  contains  the  definition  of 
pay  contained  in  Article  141(2)  EC  as  well  as  the  definition  of  occupational  social  security 
schemes contained in Directive 86/378/EEC as modified by Directive 96/97/EC. 

This  proposal  for  a  Directive  as  far  as  the  personal  scope  is  concerned  applies  to  the  entire 
working population and to persons claiming under them. 

TITLE II SPECIFIC PROVISIONS 

This title consists of three chapters, one on the principle of equal pay for equal work or work 
of  equal  value,  a  second  on  the  principle  of  equal  treatment  in  occupational  social  security 
schemes and a third on the principle of equal treatment for men and women as regards access 
to employment, vocational training and promotion and working conditions.  

Chapter 1 Principle of equal pay 

This  chapter  corresponds  to  the  principal  provisions  of  Directive  75/117/EEC.  It  also 
incorporates recent caselaw of the Court of Justice.6 It is important to note that since 8 April 
1976 (date of the Defrenne II judgement)7 the European Court of Justice has declared that ex-
Article  119  of  the  EC  Treaty  (new  Article  141  EC)  on  equal  pay  is  a  provision  with  direct 
effect. The Court has, since 1970 (since its judgement in Defrenne I)8, developed its caselaw 
on equal pay by clarifying the scope of ex-Article 119 of the EC Treaty as well as of Directive 
75/117/EEC.  

In this context it appears that, at present, secondary legislation concerning the application of 
the principle of equal pay, i.e. Directive 75/117/EEC on equal pay, does not fully reflect the 
recent caselaw of the ECJ. The repeal of Directive 75/117/EEC and its replacement by a new 
single recast Directive on the basis of the present proposal, would clarify the contents of the 
principle  of  equal  pay,  since  the  new  Directive  would  fully  reflect  the  interpretation  of  pay 
provided for by the Treaty and its interpretation by the ECJ. This is achieved by integrating 
the Allonby judgement9 as well as Lawrence10 in Article 4 of this Directive. Furthermore the 
notion of pay in relation to public servants pension schemes as reflected in the cases Niemi11 
and Beune12 is codified in Article 6 of the present Directive.  

6 

7 
8 
9 
10 
11 
12 

Judgments of the Court of 17 September 2002. A. G. Lawrence and Others v Regent Office Care Ltd, 
Commercial  Catering Group and  Mitie  Secure  Services  Ltd.  Case  C-320/00.  European  Court  Reports 
2002 Page I-07325 and Allonby, C-256/01 
Judgment of 8 April 1976. Case C-43/75 , ECR. 1976 P.455 
Judgment of 25 May 1971, in C-80/70 Defrenne v Belgian State ECR 1971 P.445 
Judgement of 13.01.2004 
(2002) ECR I-7325 
(2002) ECR I-7007 
(2002) ECR I-4471 

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It  is  important  to  note  that  Article  1  point  3  paragraph  1  subparagraph  (c)  of  Directive 
2002/73/EC  already  provides  that  the  application  of  the  principle  of  equal  treatment  means 
that there shall be no direct or indirect discrimination on the grounds of sex in the public or 
private  sectors,  including  public  bodies,  in  relation  to  inter  alia  pay  as  provided  for  in 
Directive 75/117/EEC.  

This caselaw which is already part of the Community acquis could be summarised as follows:  

- Work of equal value 

The Court has specified that Article 141(1) lays down the principle that equal work or work of 
equal  value  must  be  remunerated  in  the  same  way,  whether  it  is  performed  by  a  man  or  a 
woman.  To  be  applicable,  it  presupposes  therefore  that  male  and  female  workers  are  in 
comparable situations.  

In this context the principle of equal pay laid down in ex-Article 119 of the EC Treaty does 
not  preclude  the  making  of  a  lump-sum  payment  exclusively  to  female  workers  who  take 
maternity  leave  where  that  payment  is  designed  to  offset  the  occupational  disadvantages 
which  arise  for  those  workers  as  a  result  of  their  being  away  from  work13  because  their 
particular situation due to maternity cannot be compared with that of male workers. 

The  Court  has  held  on  several  occasions  that  the  determination  of  equal  value  involves  a 
comparison  of  the  work  of  the  female  worker  and  her  male  comparator  by  reference  to  the 
demands  made  upon  the  workers  in  carrying  out  the  tasks  such  as  skill,  effort  and 
responsibility, or the work undertaken and the nature of the tasks involved in the work to be 
performed. 

The  Court  has  developed  the  criteria  of  comparability  with  regard  to  the  principle  of  equal 
pay for men and women. According to the Court14 

- Article 141 EC and Directive 75/117/EEC apply to piece-work pay schemes in which pay 
depends entirely or in large measure on the individual output of each worker. 

- The principle of equal pay for men and women set out in Article 141 EC and Article 1 of 
Directive  75/117  means  that  the  mere  finding  that  in  a  piece-work  pay  scheme  the  average 
pay of a group of workers consisting predominantly of women, carrying out one type of work 
is appreciably lower than the average pay of a group of workers consisting predominantly of 
men, carrying out another type of work to which equal value is attributed does not suffice to 
establish that there is discrimination with regard to pay. However where, in a piece-work pay 
scheme  in  which  individual  pay  consists  of  a  variable  element  depending  on  each  worker's 
output  and  a  fixed  element  differing  according  to  the  group  of  workers  concerned,  it  is  not 
possible  to  identify  the  factors  which  determined  the  rates  or  units  of  measurement  used  to 
calculate  the  variable  element  in  the  pay,  the  employer  may  have  to  bear  the  burden  of 
proving that the differences found are not due to sex discrimination. 

13 

14 

Judgment of the Court of 16 September 1999 in Case C-218/98, Oumar Dabo Abdoulaye and Others v 
Régie nationale des usines Renault SA. , ECR 1999 I p. 5723 
Judgment of the Court of 31 May 1995, in Case C-400/93 Specialarbejderforbundet i Danmark v Dansk 
Industri, formerly Industriens Arbejdsgivere, acting for Royal Copenhagen A/S., ECR 1995 I p.1275 

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- For the purposes of the comparison to be made, with regard to the principle of equal pay for 
men  and  women,  between  the  average  pay  of  two  groups  of  workers  paid  by  the  piece,  the 
national  Court  must  satisfy  itself  that  the  two  groups  each  encompass  all  the  workers  who, 
taking account of a set of factors such as the nature of the work, the training requirements and 
the working conditions, can be considered to be in a comparable situation and that they cover 
a  relatively  large  number  of  workers  ensuring  that  the  differences  are  not  due  to  purely 
fortuitous  or  short-term  factors  or  to  differences  in  the  individual  output  of  the  workers 
concerned. 

The Court has also held that "in cases of actual discrimination falling within the scope of the 
direct application of Article 119, comparisons are confined to parallels which may be drawn 
on the basis of concrete appraisals of the work actually performed by employees of different 
sex within the same establishment or service"15. 

More recently16, however, the Court has specified that "there is, in this connection, nothing in 
the wording of Article 141(1) EC to suggest that the applicability of that provision is limited 
to situations in which men and women work for the same employer". The Court has held that 
the principle established by that Article may be invoked before national Courts, in particular 
in  cases  of  discrimination  arising  directly  from  legislative  provisions  or  collective  labour 
agreements,  as  well  as  in  cases  in  which  work  is  carried  out  in  the  same  establishment  or 
service,  whether  private  or  public  (see,  inter  alia,  Defrenne  II,  paragraph  40;  Case  129/79 
Macarthys  [1980]  ECR  1275,  paragraph  10;  and  Case  96/80  Jenkins  [1981]  ECR  911, 
paragraph  17).  However,  where,  the  differences  identified  in  the  pay  conditions  of  workers 
performing equal work or work of equal value cannot be attributed to a single source, there is 
no body which is responsible for the inequality and which could restore equal treatment. Such 
a  situation  does  not  come  within  the  scope  of  Article  141(1)  EC.  The  work  and  the  pay  of 
those workers cannot therefore be compared on the basis of that provision. 

Consequently, the Court with the above caselaw has introduced a new element broader than 
the same establishment or the same service for the comparison of work of equal value, that of 
single  source.  When  the  differences  identified  in  the  pay  conditions  of  workers  of  different 
sex performing equal work or work of equal value cannot be attributed to a single source, they 
do  not  come  within  the  scope  of  Article  141(1)  EC17.  The  current  proposal  codifies  this 
caselaw. 

- Job evaluation and job classification  

Directive 75/117/EEC in its Article 1 provides that "In particular, where a job classification 
system is used for determining pay, it must be based on the same criteria for both men and 
women and so drawn up as to exclude any discrimination on the grounds of sex". 

The Court by its caselaw especially in its judgement in Case C-237/85, Gisela Rumler v.Dato 
Druck GmbH, has laid down three guiding principles following from paragraph 2 of Article 1 
of Directive 75/117/EEC on the question of job classification, as follows; 

15 

16 

17 

Judgment in C-129/79, McCarthy Ltd v. Wendy Smith, ECR 1980 P.1275, Judgment of the Court of 30 
March 2000 .Jämställdhetsombudsmannen v Örebro läns landsting. Comparison of a midwife's pay with 
that  of  a  clinical  technician  –  taking  into  account  a  supplement  and  a  reduction  in  working  time  for 
inconvenient working hours. Case C-236/98. ECR 2000 I p. 2189 
Judgment  of  the  Court  of  17  September  2002.  A.G.  Lawrence  and  Others  v  Regent  Office  Care  Ltd, 
Commercial Catering Group and Mitie Secure Services Ltd. Case C-320/00. ECR. 2002 I p.7325 
recently confirmed in Allonby, C-256/01 

9 

 
 
  
 
                                                 
a) "The criteria governing pay rate classification must ensure that work which is objectively 
the same attracts the same rate of pay whether it is performed by a man or a woman. 

b) The use of values reflecting the average performance of workers of the one sex as a basis 
for determining the extent to which work makes demands or requires effort or whether it is 
heavy constitutes a form of discrimination on grounds of sex contrary to the Directive. 

c) In order for a job classification system not to be discriminatory as a whole it must, insofar 
as the nature of the tasks carried out in the undertaking permits, take into account criteria for 
which workers of each sex may show a particular aptitude. 

These  guiding  principles  set  out  that  in  the  context  of  a  dispute  a  job  classification  system 
under  Article  1  paragraph  2  of  Directive  75/117/EEC  must  according  to  the  caselaw  of  the 
Court be formal, analytical, factor based and non discriminatory.  

More recently the Court in its judgment18 of 26 June 2001 Brunnhofer, clarified its caselaw on 
job classification and on work of equal value: 

- the fact that a female employee who claims to be the victim of discrimination on grounds of 
sex  and  the  male  comparator  are  classified  in  the  same  job  category  under  the  collective 
agreement governing their employment is not in itself sufficient for concluding that the two 
employees  concerned  are  performing  the  same  work  or  work  to  which  equal  value  is 
attributed  within  the  meaning  of  Article  141  of  the  EC  Treaty  and  Article  1  of  Directive 
75/117/EEC,  since  this  fact  is  only  one  indication  amongst  others  that  this  criterion  is  met; 
-  a  difference  in  pay  is  capable  of  being  justified  by  circumstances  not  taken  into 
consideration under the collective agreement applicable to the employees concerned, provided 
that they constitute objective reasons unrelated to any discrimination based on sex and are in 
conformity with the principle of proportionality; 
-  in  the  case  of  work  paid  at  time  rates,  a  difference  in  pay  awarded,  at  the  time  of  their 
appointment,  to  two  employees  of  different  sexes  for  the  same  job  or  work  of  equal  value 
cannot be justified by factors which become known only after the employees concerned take 
up  their  duties  and  which  can  be  assessed  only  once  the  employment  contract  is  being 
performed, such as a difference in the individual work capacity of the persons concerned or in 
the effectiveness of the work of a specific employee compared with that of a colleague. 

Definition of Pay for the purposes of Article 141(2)  

The  Court  has  repeatedly  held  that  the  concept  of  pay  within  the  meaning  of  the  second 
paragraph  of  ex-Article  119  of  the  EC  Treaty  encompasses  all  benefits  in  cash  or  in  kind, 
present  or  future,  provided  they  are  paid,  albeit  indirectly  by  the  employer  to  the  worker  in 
connection with his employment.19 

Individual  pay  supplements  to  basic  pay  (Handels  v  Danfoss)20  and  increments  based  on 
seniority (Nimz)21 in addition to basic and minimum pay fall within the scope of ex-Article 
119 of the EC Treaty. In the judgment of 4 June 1992 (Bötel22), it was held that time off with 

18 
19 
20 
21 
22 

Judgement of 26 June 2001, in Case C-381/99, Brunnhofer, ECR I 2001 p. 4961, 
Judgement of 17 May 1990, C-262/88, Barber, ECR. 1990 P.1889 
Judgement of 17 October 1989, C-109/88, Danfoss. ECR. 1989 P.3199 
C-184/89, Nimz v.Freie und Hansestadt Hamburg, ECR 1991, p.322 
C-360/90, Arbeiterwohlfahrt der Stadt Berlin v Bötel 

10 

 
 
  
 
 
                                                 
pay  for  a  part-time  employee  undertaking  Works  Council  training,  constituted  pay. 
Supplements  to  "heads  of  households"  are  included  in  the  concept  of  pay  (European 
Commission  v.  Luxembourg).23  Benefits  calculated  in  monetary  terms,  such  as  sick  pay 
allowances constitute pay (Rinner-Kuhn).24 In addition the monetary calculation for time off 
to  pursue  works  council  training  has  been  found  to  constitute  pay  (Bötel).  Pensions,  travel 
facilities  obtainable  on  retirement  and  severance  schemes  have  all  been  found  to  constitute 
pay (Garland, Barber25). It would appear therefore that any direct payments supplementing a 
basic wage are covered. This would appear to include shift premia, overtime and all forms of 
merit and performance pay. 

The application of ex-Article 119 to social security schemes was at the heart of the reference 
for a preliminary ruling in Case 80/70 Defrenne v Belgian State26. In its judgment in that case, 
the Court of Justice clarified its position, excluding statutory social security schemes from the 
concept  of  "any  other  consideration"  of  ex-Article  119  (new  Article  141(2)).  The  Court, 
following  the  conclusions  of  the  Advocate-General,  ruled  that  the  concept  of  consideration 
paid directly or indirectly, in cash or in kind, could not encompass benefits of statutory social 
security schemes without any element of agreement within the enterprise or the occupational 
branch  concerned,  and  obligatorily  applicable  to  general  categories  of  workers.  The  Court 
noted  that,  for  the  funding  of  these  schemes,  workers,  employers,  and  public  authorities 
contribute to an extent determined less by the employment relationship between workers and 
employers than by considerations of social policy. For these reasons, the Court concluded that 
"any other consideration" could not be regarded as encompassing benefits of statutory social 
security  schemes.  On  the  other  hand,  however,  this  line  of  reasoning  means  that  specific 
schemes such as company occupational schemes are included, as it is precisely these which 
are not directly governed by law. They involve an element of agreement within the enterprise 
or the branch, they are not compulsory for general  categories  of  workers  but only for those 
categories covered in the enterprise or the branch, and are financed by employers or workers 
who  contribute  directly,  depending  on  the  schemes'  funding  requirements  and  not  on 
considerations of social policy. 

In  1986  in  Case  170/84  Bilka-Kaufhaus  v  Weber27,  the  Court  confirmed  the  implicit  ruling 
given in the above-mentioned Defrenne I judgment28, namely that only benefits deriving from 
a statutory social security scheme were outside the scope of ex-Article 119 of the EC Treaty. 
The  Court  accordingly  ruled  that  an  occupational  pension  scheme  funded  by  the  employer 
constitutes pay for the purposes of ex-Article 119 of the EC Treaty.  

In  its  judgment  of  17 May  1990  (Case 262/88  Barber)  and  its  subsequent  judgements  (see 
below)  the  Court  confirms  its  earlier  caselaw  in 170/84  Bilka,  i.e.  that  benefits  under 
occupational schemes for paid workers fall within the concept of pay within the meaning of 
ex-Article 119 of the EC Treaty. 

23 
24 
25 
26 
27 
28 

C-58/81 ECR p.2175 
C-171/88, Rinner-Kuhn v Spezial-Gebäudreinigung ECR.1989 p.2743 
C-262/88 Barber, ECR 1990, p.I 1889 
C-80/70, Defrenne I ECR 1971 p. 455. 
C-170/84, ECR 1986, p. 1607 
ECR 1971, p. 445, Case 80/70 Defrenne v Belgian State ("Defrenne I"). 

11 

 
 
  
 
                                                 
The  fact  that  payments  to  employees  are  not  governed  by  the  contract  of  employment  does 
not remove them from the scope of pay in ex-Article 119 of the EC Treaty. Gratuities paid at 
the  discretion  of  an  employer  are  encompassed  (Garland)29.  Thus  pay,  whether  under  a 
contract, statutory or collective provisions or on a voluntary basis is covered. 

Chapter 2 Principle of equal treatment in occupational social security schemes  

This  chapter  incorporates  the  principal  provisions  of  Directive  86/378/EEC  as  amended  by 
Directive  96/97/EC  and  furthermore  clarifies  the  implementation  of  the  equal  treatment 
principle in occupational social security schemes without changing the current legal position. 
It also integrates more recent caselaw.30  

- Equal pay and occupational social security schemes  

As  already  indicated,  the  scope  of  "pay"  has  been  clarified  by  numerous  ECJ  rulings,  in 
particular in relation to occupational social security schemes.  

In  its  judgment  of  17  May  1990  (Case 262/88  Barber)31  the  Court  confirmed  its  earlier 
judgement  (Case 170/84  Bilka),  leaving  no  room  for  doubt:  benefits  and  employee 
contributions  under  the  terms  of  an  occupational  pension  scheme  fall  within  the  concept  of 
pay within the meaning of ex-Article 119 (currently, with modification Article 141 EC) of the 
EC Treaty concerning equal pay. The Court confirmed what it implicitly said in its judgment 
of 25 May 1971 in Case C-80/70 Defrenne I32 i.e. benefits granted under a pension scheme, 
which  essentially  relates  to  the  employment  of  the  person  concerned,  form  part  of  the  pay 
received by that person and come within the scope of ex-Article 119 of the EC Treaty.33 

Discrimination between men and women in occupational social security schemes is therefore 
prohibited, not only when the age of entitlement to a pension is established, but also when an 
occupational pension is offered by way of compensation for dismissal on economic grounds 
(the  facts  of  Case  262/88,  Barber).  Nevertheless  the  Court  did,  when  handing  down  the 
Barber  judgment,  leave  some  doubt  as  to  the  (retroactive)  effects  in  time  of  application  of 
Article 119 of the Treaty on occupational social security schemes.  

The caselaw of the Court in the area of application of ex-Article 119 in occupational social 
security schemes could be summarised as follows: 

The  Court,  in  its  judgments  of  6  October  1993  (Ten  Oever),  14 December  1993  (Moroni), 
22 December  1993  (Neath)  and  six  judgments  of  28 September  1994  confirmed  the 
interpretation  of  the  retroactive  effect  of  the  application  of  the  principle  of  equal  treatment 

29 
30 

31 
32 
33 

C-12/81, Eileen Garland v British Rail Engineering Ltd, ECR 1982, p.359 
Judgments of the Court of 28th September 1994, Case C-7/93 Beune, ECR 1994 page I-4471 of 17th 
April  1997  in  case  147/95  Evrenopoulos  ECR  p.  I-02057,  of  29th  November  2001,  case  C-366/99 
Griesmar ECR p. I-09383, of 13th December 2001 case C-206/00. ECR 2001 I-0201 Henri Mouflin and 
more recently in judgment of 12th September 2002 in C-351/00 Niemi ECR 2002 p. I-07007 
ECR 1990, p.I 1889 
ECR 1971 P.445 
See, in particular, to that effect, Case 170/84 Bilka v Weber von Hartz [1986] ECR 1607, paragraph 22; 
Barber, paragraph 28; Beune, paragraph 46; and more recently in Joined Cases C-234/96 and C-235/96 
Deutsche Telekom v Vick and Conze [2000] ECR I-799, paragraph 32. 

12 

 
 
  
 
                                                 
between men and women in occupational schemes for paid workers34 in conformity with the 
additional Protocol to ex-Article 119. 

In Case C-109/91 "Ten Oever" (judgment of 6 October 1993), the Court confirmed that ex-
Article 119 applies to survivors' benefits provided by an occupational social security scheme 
with  effect  from  17 May  1990  and  discrimination  between  men  and  women  is  no  longer 
permitted from that date as regards the granting of such benefits. 

In Case C-110/91 "Moroni" (judgment of 14 December 1993), the Court confirmed that ex-
Article 119 of the EC Treaty applies to all types of occupational schemes and, consequently, 
the age of entitlement to an old-age or retirement pension pursuant to such schemes must be 
the same for both sexes with effect from 17 May 1990. 

In  Case  C-152/91  "Neath"  (judgment  of  22  December  1993)  and  Case  C-200/91  "Coloroll" 
(judgment  of  28  September  1994),  the  Court  specified  that  employees'  contributions  to  an 
occupational social security scheme must be the same for both sexes since they constitute an 
element  of  pay  within  the  meaning  of  ex-Article 119  of  the  EC  Treaty.  On  the  other  hand, 
employers'  contributions  to  such  schemes  may  differ  according  to  sex  in  so  far  as  they  are 
based on objective actuarial calculations, which take account of the longer life expectancy of 
women. 

By  its  judgements  in  these  cases  the  Court  has  clarified  the  application  of  the  principle  of 
equal  pay  in  the  area  of  occupational  schemes,  in  particular  which  schemes  fall  within  the 
concept of pay of the relevant article in the Treaty35. 

Before  the  Court's  judgments,  the  Heads  of  State  and  Government  meeting  in  Maastricht 
signed a supplementary protocol to ex-Article 119 of the EC Treaty which is intended to limit 
the  effects  in  time  of  ex-Article  119  of  the  EC  Treaty  in  connection  with  occupational 
schemes. This Protocol is still annexed to Article 141 after the successive modifications of the 
Treaty (by the Amsterdam and Nice Treaties). 

According to this Protocol: 

"For the purposes of ex-Article 119, benefits under occupational social security schemes shall 
not  be  considered  as  remuneration  if  and  in  so  far  as  they  are  attributable  to  periods  of 
employment  prior  to  17 May  1990  (date  of  the  Barber  judgment),  except  in  the  case  of 

34 

35 

Judgments  of  the  Court  of  6th  October  1993,  C-109/91  Ten  Oever,  ECR  1993  p.I-4879,  of  14th 
December  1993,  C-110/91  Moroni,  ECR  I-6591,  of  22nd  December  1993,  C-152/91  Neath,  ECR  I-
6953,  of  28th  September  1994,  C-200/91  Coloroll,  ECR  1994  p.  I-4389.  Judgments  of 
28th September 1994, C-57/93 Vroege ECR 1994 p.I-4541 and C-128-93 Fisscher ECR 1994, P.I-4583 
and more recently, judgments of 11th December 1997, C-246/96 Magorrian ECR 1997 p. I-07153 and 
of 16th May 2000 in case C-78/98 Preston ECR 2000 p. I-03201. 
Judgments  of  the  Court  of  6th  October  1993,  C-109/91  Ten  Oever,  ECR  1993  p.  I-4879,  of  14th 
December  1993,  C-110/91  Moroni,  ECR  I-6591,  of  22nd  December  1993,  C-152/91  Neath,  ECR  I-
6953, of 28th September 1994, C-200/91 Coloroll, ECR 1994 p.I-4389. Judgments of 28th September 
1994, C-57/93 Vroege ECR 1994 p.I-4541 and C-128-93 Fisscher ECR 1994, P.I-4583, Judgment, of 
the  Court  of  28th  September  1994.  Case  C-7/93.  Beune,  ECR  1994  page  I-4471  and  more  recently 
judgments of 11th December 1997, C-246/96 Magorrian ECR 1997 p. I-07153 and of 16th May 2000 in 
case C-78/98 Preston ECR 2000 p. I-03201, judgement of 25 May 2000 in Case C-50/99. Jean-Marie 
Podesta v Caisse de retraite par répartition des ingénieurs cadres & assimilés (CRICA) and Others. ECR 
2000 Page I-04039 

13 

 
 
  
 
                                                 
workers or those claiming under them who have before that date initiated legal proceedings or 
raised an equivalent claim under the applicable national law". 

Directive 96/97/EC amending Directive 86/378/EC, adopted by the Council on the basis of a 
proposal of the Commission reflects the caselaw of the Court and the additional protocol to 
ex-Article  119  and  aimed  for  reasons  of  legal  certainty  and  clarity  to  make  secondary 
legislation,  i.e.  Directive  86/378/EEC  conform  with  ex-Article  119  of  the  EC  Treaty,  as 
interpreted by the Court of Justice. 

With  regard  to,  in  particular,  the  problem  of  taking  account  of  actuarial  factors  differing 
according to sex for the calculation of contributions and benefits under occupational schemes, 
it should be borne in mind that the Commission, in its proposal of 23 April 1983 (COM (83) 
217 final), which was the forerunner to Directive 86/378/EEC, gave a non-exhaustive list, in 
Article 6, of certain provisions contrary to the principle of equal treatment. The main problem 
with this Directive stemmed from this Article, and particularly paragraphs (h) and (i). 

Directive  86/378/EEC  provided  that  schemes  may  take  account  of  actuarial  calculation 
factors,  which  differ  according  to  sex  in  respect  of  employers'  contributions  and  benefits 
designated  as  contribution-defined.  At  first  sight,  the  exceptions  relate  to  schemes  entailing 
defined contributions, but it has to be said that the adopted text was not very clear and, in the 
course of consultations, involving government experts, pension funds and the social partners, 
aimed  at  amending  Directive 86/378,  all  the  parties  were  agreed  that  the  text  needed  to  be 
clarified. 

The situation surrounding the provisions of Article 6(h) and (i) of Directive 86/378/EEC has 
been  clarified  by  the  caselaw  of  the  Court,  and  more  particularly  by  the  above-mentioned 
judgements of 22 December 1993 (Case C-152/91 Neath) and 28 September 1994 (Case C-
200/91 Coloroll). According  to  the  Court, the use of  actuarial factors  differing according to 
sex in funded defined-benefit occupational pension schemes does not fall within the scope of 
ex-Article 119 of the EC Treaty as far as employers' contributions are concerned. 

The Court has pointed out that this conclusion necessarily extends to specific aspects of the 
questions referred to it for a preliminary ruling in the Neath and Coloroll cases, namely the 
capitalisation of part of the periodic pension and the transfer of pension rights, whose value 
can only be determined in terms of the funding arrangements. 

The  Court  has  gone  on  to  point  out  that  employees'  contributions,  in  a  contributory 
occupational  scheme,  must  be  the  same  for  both  sexes.  Its  conclusion  is  based  on  the  idea 
that, in the context of occupational pensions, ex-Article 119 covers only what is promised by 
the  employer,  i.e.  the  periodic  benefits  accruing  from  the  pension  to  be  received  once  the 
retirement  age  has  been  attained.  The  employer's  contributions  thus  do  not  fall  within  the 
scope  of  ex-Article 119  nor  do  the  sums  transferred  from  one  pension  fund  to  another 
following a change of job. 

These factors are clearly related to the "funding" of a pension scheme and are not, according 
to the Court's line of reasoning, covered by ex-Article 119. What is less clear is whether this 
line of reasoning also excludes from the scope of ex-Article119 the capital sum, which some 
schemes  provide  in  return  for  relinquishing  one's  claim  to  part  of  the  normal  pension.  The 
Court clearly considers that capital formation of this type is excluded from the scope of ex-
Article 119 (point 33 in the grounds for the Neath judgement). Nevertheless, it must be noted 

14 

 
 
  
 
that the capitalised sum merely represents a substitute for part of the normal pension and that 
the Court's line of reasoning applies only to defined-benefit schemes. 

It  follows  from  the  above  that  the  provisions  of  Article 6(h)  and  (i)  of  Directive  86/378,  as 
adopted by the Council of Ministers in 1986, remain consistent with ex-Article 119 of the EC 
Treaty.  There  was,  however,  a  need  for  certain  adjustments  to  help  clarify  matters,  e.g.  by 
making a distinction between defined-contribution schemes (where the employer promises a 
contribution)  and  defined-benefit  schemes  (where  the  employer's  promise  is  the  final 
benefit).36 As far as the employer's contributions are concerned, the Court has ruled expressly 
on the amount to be paid in the context of defined-benefit schemes where, according to the 
Court, this amount may vary according to sex to take account of differing actuarial calculation 
factors. 

On  the  other  hand,  the  Court  has  not  ruled  on  the  amount  of  such  contributions  in  defined-
contribution schemes.  

In its judgment of 9 November 1993 in Case C-132/92 Birds Eye Walls,37 the Court held that 
differences  in  employers'  contributions  under  such  schemes  (defined  contribution  schemes) 
may be permitted on condition that the aim is to achieve equal pensions for both sexes. 

On  28  September  1994,  in  addition  to  the  judgement  in  Case  C-200/91  Coloroll,  the  Court 
further clarified, in five other judgements, the scope of ex-Article 119 of the EC Treaty and its 
application in connection with occupational social security schemes. 

The judgment in Case 200/91 Coloroll, in addition to the issue of actuarial factors, confirms 
the  main  principles  laid  down  in  previous  judgments  of  the  Court  (Ten  Oever,  Moroni, 
Neath), providing further clarification in certain areas such as the fact that ex-Article 119 of 
the  EC  Treaty  may  be  relied  on  by  both  employees  and  their  dependants  against  trustees 
(administrators  of  occupational  schemes)  who  are  bound  to  observe  the  principle  of  equal 
treatment (employer's and trustees' respective obligations). 

In its judgments in Cases 408/92 Smith and 28/93 Van den Akker, the Court considers that 
ex- Article 119 of the EC Treaty must be interpreted as precluding an employer from making 
the retirement age equal by raising the age for women to that for men in relation to periods of 
service completed between 17 May 1990 (date of the Barber judgment) and the date on which 
the new measures, in order to comply with the Barber judgment, come into force. 

Therefore,  as  regards  periods  of  service  completed  between  17 May  1990  and  the  date  of 
entry  into  force  of  the  rule  by  which  the  scheme  imposes  a  uniform  retirement  age,  ex-
Article 119 does not allow a situation of equality to be achieved otherwise than by applying to 
male employees the same arrangements as those enjoyed by female employees. 

On the other hand, as regards periods of service completed after the date of entry into force of 
the  measures  effectively  establishing  equal  treatment,  ex-Article 119  does  not  prevent  the 
raising of the retirement age for women to that for men. As regards periods of service prior to 

36 

37 

Directive  96/97/EC  Article  1  point  3  replacing  article  6  of  Directive  86/378/EEC  see  in  particular  h) 
and i) 
Birds Eye Walls Ltd. v Friedel M. Roberts. ECR 1993 I p. 5579 

15 

 
 
  
 
                                                 
17 May  1990,  Community  law  imposed  no  obligation  which  would  justify  retroactive 
reduction of the advantages which women enjoyed.38  

The judgments in Case C-57/93 Vroege and Case C-128/93 Fisscher concern the right of part-
time  workers  to  join  an  occupational  pension  scheme.  The  Court,  confirming  its  previous 
caselaw  (Case  C-170/84  Bilka),  considered  that  the  exclusion  of  part-time  workers  from 
membership of an occupational scheme may constitute indirect discrimination against women 
prohibited  by  ex-Article 119  of  the  EC  Treaty  if  there  is  no  objective  justification  for  such 
exclusion.  The  limitation  of  the  effects  in  time  of  the  Barber  judgment  of  17 May  1990  as 
well as Protocol No 2 concerning ex-Article 119 of the EC Treaty do not apply to the right to 
join an occupational pension scheme, which continues to be governed by the Bilka judgment 
of 13 May 1985. Since the latter judgment included no limitation in time, the direct effect of 
ex-Article 119 can be relied upon in order retroactively to claim equal treatment in relation to 
the right to join an occupational pension scheme and this may be done as from 8 April 1976, 
the  date  of  the  Defrenne II  judgment  in  which  the  Court  held  for  the  first  time  that  ex-
Article 119  has  direct  effect.  The  Court  clarified  more  recently  in  judgments  of  11th 
December 1997 in case C-246/96, Magorrian, and of 16th May 2000 in case C-78/98 Preston, 
its caselaw concerning the situation of part-time workers. 

The  fact  that  a  worker  can  claim  retroactively  to  join  an  occupational  pension  scheme  does 
not allow the worker to avoid paying the contributions relating to the period of membership 
concerned. 

National rules relating to time limits for bringing actions under national law may be relied on 
against workers who assert their right to join an occupational pension scheme, provided that 
they are not less favourable for such actions than for similar actions of a domestic nature and 
that  they  do  not  render  the  exercise  of  rights  conferred  by  Community  law  impossible  in 
practice.  

In its judgment in Case C-7/93 Beune, the Court sets out the criteria according to which ex-
Article 119  EC  Treaty  applies  in  connection  with  certain  schemes  for  civil  servants.  In 
subsequent judgements (judgements in cases Evrenopoulos, Griesmar, Mouflin and Niemi39) 
the  Court  further  clarified  its  judgement  of  28  September  1994  in  case  Beune,  that  civil 
service  retirement  schemes  (public  sector  schemes)  are  also  covered  by  the  concept  of  pay 
within  the  meaning  of  the  former  Article  119  of  the  EC  Treaty  when  derived  from  the 
employment relationship.  

The  Court  has  held40  that  in  order  to  establish  that  a  civil  service  retirement  scheme  falls 
within the scope of Article 141 EC (ex-Article 119 of the EC Treaty) the fact that the pension 
benefit  is  linked  to  the  employment  relationship  and,  as  a  result,  is  paid  by  the  State  in  its 
capacity as employer, that criterion cannot be regarded as exclusive, in as much as pensions 
paid under statutory social security schemes may reflect, wholly or in part, pay in respect of 
work (Beune, paragraph 44, and Griesmar, paragraph 29).  

38 

39 

40 

Judgement of 25 May 2000 in Case C-50/99. Jean-Marie Podesta v Caisse de retraite par répartition des 
ingénieurs cadres & assimilés (CRICA) and Others. ECR 2000 Page I-04039 
Judgments of the Court of 28th September 1994. Case C-7/93 Beune, ECR 1994 page I-4471, of 17th 
April  1997  in  case  147/95  Evrenopoulos  ECR  p.  I-02057,  of  29th  November  2001,  case  C-366/99 
Griesmar ECR p.I-09383, of 13th December 2001 case C-206/00. ECR 2001 I-0201 Henri Mouflin and 
more recently in judgment of 12th September 2002 in C-351/00 Niemi ECR 2002 p. I-07007. 
Idem as 42 

16 

 
 
  
 
                                                 
However,  considerations  of  social  policy,  of  State  organisation,  of  ethics,  or  even  the 
budgetary  concerns  which  influenced  or  may  have  influenced  the  establishment  by  the 
national  legislature  of  a  scheme  cannot  prevail  if  the  pension  concerns  only  a  particular 
category  of  workers,  if  it  is  directly  related  to  the  period  of  service  completed  and  if  its 
amount is calculated by reference to the public servant's last salary. The pension paid by the 
public employer is in that case entirely comparable to that paid by a private employer to his 
former employees (Beune, paragraph 45, Griesmar, paragraph 30, and Niemi paragraph 47).  

These judgements are particularly relevant for retirement age, survivor's benefits and specific 
old age advantages granted to persons looking after their children.  

This  latest  caselaw  is  also  now  clearly  reflected  in  the  text  of  the  new  recasting  proposed 
Directive. 

The  Court  has  also  clarified  in  its  judgement  of  25  May  2000  in  Case  C-50/99,  Jean-Marie 
Podesta v Caisse de retraite par répartition des ingénieurs cadres & assimilés, that ex-Article 
119 of the EC Treaty applies to private inter-occupational supplementary retirement pension 
schemes based on defined contributions run on a  pay-as-you-go basis to the extend that the 
purpose of those schemes is to supplement or replace the benefits provided by statutory social 
security schemes and where the pension is paid to the worker by reason of the employment 
relationship between him and his former employer, whether membership of such schemes is 
compulsory or optional.41Consequently ex-Article 119 of the EC Treaty, which lays down the 
principle  of  equal  pay  for  men  and  women,  is  applicable  to  the  AGIRC  and  ARRCO  (the 
Association  Générale  des  Institutions  de  Retraite  des  Cadres  (AGIRC)  and  the  Association 
des  Régimes  de  Retraite  Complémentaire  (ARRCO))  supplementary  retirement  pension 
schemes  in  France  and  prohibits  them  from  discriminating  between  men  and  women  in 
respect  of  the  age  at  which  they  are  entitled  to  a  survivor's  pension  following  the  death  of 
their spouse. 

The  Court  also  confirmed  in  the  same  judgment  that  according  to  its  settled  case-law,  the 
equal treatment in the matter of occupational pensions required by ex-Article 119 of the EC 
Treaty  may  be  relied  on  in  relation  to  benefits  payable  in  respect  of  periods  of  service 
subsequent  to  17  May  1990,  the  date  of  the  Barber  judgement  (see,  to  that  effect,  Case  C-
28/93  Van  Den  Akker  and  Others42,  paragraph  12).  It  follows  that  occupational  pension 
schemes were required to achieve equal treatment as from 17 May 1990 (Van Den Akker and 
Others,  paragraph  14).  Article  141  EC  (ex-Article  119  of  the  EC  Treaty)  applies  to 
supplementary retirement pension schemes, such as AGIRC and ARRCO and precludes those 
schemes from discriminating, as from 17 May 1990, between men and women in respect of 
the age at which their spouses are entitled to a survivor's pension following the death of those 
employees. 

-Occupational schemes for self-employed workers 

It  is  important  to  note  that  the  caselaw  in  Barber  and  the  subsequent  judgements  does  not 
affect  the  situation  of  self-employed  workers,  who  are  included  in  the  personal  scope  of 
Directive 86/378/EC. Therefore, the present Directive, as previously Directive 96/97/EC, does 
not introduce any changes for the situation of self-employed workers.  

41 

42 

Judgment of 25 May 2000 in Case C-50/99. Jean-Marie Podesta v Caisse de retraite par répartition des 
ingénieurs cadres & assimilés (CRICA) and Others. ECR 2000 Page I-04039 
ECR 1994-I p.4527 

17 

 
 
  
 
                                                 
These workers are covered by Directive 86/378/EEC but in a very limited way and insofar as 
occupational social security schemes are organised on a collective basis (e.g. sectoral schemes 
in  France).  Individual  schemes  for  self-employed  are  explicitly  excluded  from  the  scope  of 
Directive 86/378/EEC as amended by Directive 96/97/EC (Article 2(2) a) and b) of Directive 
86/378/EEC, as replaced by Article 1 point 1 paragraph 2 of Directive 96/97/EC). According 
to  these  provisions  individual  contracts  of  self-employed  workers  and  schemes  for  self-
employed workers having only one member are excluded. Moreover, according to Article 4 of 
Directive  86/378/EEC  family  allowances  are  concerned  insofar  as  they  are  attributed  to 
employed  persons,  while  according  to  Article  9  a)  and  b)  of  the  Directive  as  amended  by 
Article 1 point 5 of Directive 96/97/EC, Member States may defer compulsory application of 
the  principle  of  equal  treatment  with  regard  to  determination  of  pensionable  age  and  for 
survivor's  benefits  for  self-employed  workers.  The  only  provision  which  is  of  a  relative 
importance  for  self-employed  workers  is  Article  9  c)  as  amended  by  Article  1  point  5  of 
Directive  96/97/EC,  which  provides  for  equal  contributions  for  men  and  women  to  an 
occupational scheme for self-employed workers (collective scheme) from the 31st July 1999 
(thirteen  years  after  the  notification  of  Directive  86/378/EEC).  Consequently  from  the  1st 
August 1999 occupational social security schemes have to apply unisex actuarial calculations 
for contributions of self-employed persons in these schemes. 

Chapter  3  The  principle  of  equal  treatment  for  men  and  women  as  regards  access  to 
employment, vocational training, promotion and working conditions 

Directive  2002/73/EC  of  the  European  Parliament  and  of  the  Council  amending  Directive 
76/207/EEC  assures  legal  clarity  and  certainty  by  codifying  numerous  rulings  from  the 
European Court of Justice on the original Directive.  

This chapter corresponds to the principal provisions of Directive 76/207/EEC, as amended by 
Directive 2002/73/EC, in relation to the elimination of discrimination (direct or indirect) on 
the basis of sex. This chapter includes the provisions on the extent to which derogations from 
the  principle  of  equal  treatment  are  permitted  in  the  case  of  a  job  that  by  its  very  nature 
requires a person of a specific sex.  

Moreover,  as  with  Directive  2002/73/EC,  this  proposal  reiterates  the  principle  contained  in 
Article 141(4) EC which states that "with a view to ensuring full equality in practice between 
men  and  women  in  working  life,  the  principle  of  equal  treatment  shall  not  prevent  any 
Member  State  from  maintaining  or  adopting  measures  providing  for  specific  advantages  in 
order  to  make  it  easier  for  the  under-represented  sex  to  pursue  a  vocational  activity  or  to 
prevent or compensate for disadvantages in professional careers".  

In addition, this chapter contains the provisions of Directive 2002/73/EC on the reinforcement 
of  the  protection  of  mothers  on  maternity  leave  and  clarifies  the  links  with  Directive 
92/85/EC.43  It  also  includes  the  provisions  from  Directive  2002/73/EC  in  relation  to  the 
protection of fathers and mothers on paternity leave and/or adoption leave in the case of the 
Member States which recognise such rights.  

43 

Council  Directive  92/85/EEC  of  19  October  1992  on  the  introduction  of  measures  to  encourage 
improvements  in  the  safety  and  health  at  work  of  pregnant  workers  and  workers  who  have  recently 
given  birth  or  are  breastfeeding  (tenth  individual  Directive  within  the  meaning  of  Article  16  (1)  of 
Directive 89/391/EEC) Official Journal L 348 28.11.92 p.1 

18 

 
 
  
 
                                                 
TITLE III  HORIZONTAL PROVISIONS 

Chapter 1 Defence of rights 

Section 1: Remedies 

This  chapter  contains  the  new  provisions  on  remedies  and  enforcement,  introduced  by 
Directive 2002/73/EC. These provisions reflect the caselaw of the Court. It concerns: 

-  reinforcement  of  the  protection  (a)  of  victims  of  discrimination  even  after  the  end  of  the 
employment relationship44 and (b) against any adverse treatment; 

-  the  integration  of  the  caselaw  of  the  Court  on  the  question  of  upper  limits45  (which  are 
permitted only in certain exceptional cases) in cases of compensation or reparation. 

These provisions will, in the context of the present proposal, have horizontal application and 
will  cover  not  only  matters  relating  to  access  to  employment,  vocational  training  and 
promotion  and  working  conditions  but  also  matters  relating  to  pay,  including  occupational 
social security schemes which also constitute important aspects of the implementation of the 
principle of equal treatment in matters of work and occupation. 

Section 2: Burden of proof 

This chapter contains not only the principal provisions of Directive 97/80/EC on the burden of 
proof,  but  also  aligns  its  text  with  the  recently  adopted  Directive  2002/73/EC.  The  main 
impact of this proposal will be to ensure the effectiveness of the principle of equal treatment 
by  extending  the  rules  on  the  burden  of  proof  to  the  area  of  occupational  social  secutity 
schemes. 

It is important to note that as some aspects of occupational social security schemes (benefits 
and  contributions  of  employees)  are  pay  within  the  meaning  of  ex-Article  119  of  the  EC 
Treaty,  Directive  97/80/EC  on  the  burden  of  proof  already  implicitly  covered  these  aspects 
since under its Article 3(1)(a) the Directive applies to "the situations covered by Article 119 
of the Treaty, and by Directives 75/117/EEC, 76/207/EEC and insofar as discrimination based 
on  sex  is  concerned,  92/85/EEC  and  96/34/EC".  Directive  97/80/EC,  despite  the  initial 
proposal of the Commission46 and the opinion of the European Parliament47, did not finally 
include in its scope Directives 86/378/EEC and 96/97/EC relating to equal treatment between 
men and women in occupational social security schemes. The reasons put forward previously 
for this exclusion no longer seem relevant as the Directives based on Article 13 EC contain 
similar provisions on the burden of proof. However, during the negotiations for the adoption 
of  Directive  97/80  there  was  a  Common  declaration  of  the  Council  and  of  the  Commission 
relating to Article 3(1)(a) as follows:48  

44 
45 
46 
47 

48 

Case C-185/97, Goote, ECR.1998 I p.5199 
Cases C-180/95 Draehmpaehl, ECR 1997 I p.2195 and C-271/31 Marshal ECR 1993 I P.4367 
OJ C 332, 7.11.1996. p.11 and OJ C 185 18.6.1997 p.21 
Opinion of the European Parliament of 10 April 1997 (OJ C 132, 28. 4. 1997, p.215), Common Position 
of the Council of 24 July 1997 (OJ C 307, 8. 10. 1997, p. 6) and Decision of the European Parliament of 
6 November 1997 (OJ C 358, 24. 11. 1997).  
SN 157/2/97(SOC) REV 2 of 27 June 1997 

19 

 
 
  
 
                                                 
"The Council requests that the Commission in its report to be submitted pursuant to Article 7, 
also examine the question of the scope of the Directive. 

In  this  report,  due  account  will  be  taken  of  the  rulings  of  the  Court  in  all  areas  of  social 
policy looked at which have a bearing on the general principle of non discrimination. " 

The  present  proposal,  by  putting  together  in  a  single  text  provisions  on  occupational  social 
security  schemes  and  those  relating  to  the  burden  of  proof,  will  also  make  effective  the 
application of the principle of equal treatment in this field and will respond to this declaration 
and the previous request of the European Parliament.  

Another important, practical impact of the current proposal in this context will be the repeal 
of the definition of indirect discrimination in Article 2 paragraph 2 of Directive 97/80/EC in 
order to align it with the definition contained in Directive 2002/73/EC. It should be recalled, 
in  this  respect,  that  the  adoption  of  Directive  2002/73/EC  amending  Directive  76/207/EEC 
introduced  a  new  definition  of  indirect  discrimination  without  the  statistical  element  in  the 
text in accordance with the definition in the Directives adopted on the basis of Article 13 EC. 
In  this  regard  it  should  be  noted  that  during  the  negotiations  for  the  adoption  of  Directive 
2002/73/EC amending Directive 76/207/EEC there were declarations of both the Commission 
and the Council in June 200149, when the Common position was adopted, on the need to align 
the  definition  of  indirect  discrimination  contained  in  Directive  97/80/EC  as  amended  by 
98/52/EC,  with  the  definition  adopted  in  the  Common  position  and  later  in  Directive 
2002/73/EC.50 The present proposal therefore responds to these declarations. It follows up on 
the specific request by Member States to the Commission to propose a modified proposal of 
Directive 97/80/EC in order to adapt its definition on indirect discrimination. A declaration of 
the Commission on this subject was included in the minutes of the Council of Social affairs of 
June  2001.Thus,  this  exercise  regrouping  Directives  2002/73/EC  with  Directive  97/80/EC, 
also responds to the above declarations and seeks to improve the effectiveness of the principle 
of equal treatment as interpreted by the Court of Justice.51  

Chapter 2 Bodies for the promotion of equal treatment - social dialogue 

As with the previous chapter, this chapter contains the new provisions introduced by Directive 
2002/73/EC, which are similar to the provisions existing in the Directives based on Article 13 
i.e. Directives 2000/43/EC and 2000/78/EC. It concerns: 

-The  designation  by  the  Member  States  of  bodies  and  the  role  of  these  bodies  i.e.  the 
promotion  of  equal  treatment,  the  follow  up  of  Community  legislation  and  the  provision  of 
support to victims of discrimination. 

49 
50 

51 

9588/01, SOC 233, CODEC 519 of 6 June 2001 
Commission  statement  to  the  minutes  (Re  amending  Directive  97/80/EC)  "In  the  light  of  the 
amendment  to  the  definition  of  indirect  discrimination,  the  Commission  will  propose  an  appropriate 
amendment  to  Directive  97/80/EC  as  amended  by  Directive  98/52/EC,  as  expeditiously  as  possible." 
Council  statement  to  the  minutes  (Re  Commission  statement  on  amending  Directive  97/80EC)  "The 
Council acknowledges the Commission's intention to make a proposal to amend Directive 97/80/EC in 
the light of the amendment to the definition of indirect discrimination." 
Judgement  of  26  June  2001,  in  Case  C-381/99,  Brunnhofer,  ECR  I  2001  p.4961,  Judgement  of 
27 October 1993 in C-127/92 Enderby, ECR 1993 p. I-5535, see also judgment of 17 October 1989 in 
C-109/88 Danfoss, ECR 1989 p.3199. 

20 

 
 
  
 
                                                 
-The  reinforcement  of  the  role  of  social  partners  and  of  NGOs  in  the  promotion  of  the 
principle of equal treatment. 

As  with  the  previous  chapter,  these  provisions  will,  in  the  context  of  the  present  proposal, 
now  have  horizontal  application  and  will  cover  not  only  matters  relating  to  access  to 
employment,  vocational  training  and  promotion  and  working  conditions,  but  also  matters 
relating to pay, including occupational social security schemes. 

It is reasonable to expect that bodies established for equal treatment between men and women 
in  relation  to  access  to  employment,  vocational  training  and  promotion  and  working 
conditions  should  also  cover  other  aspects  of  working  conditions  such  as  pay  and 
occupational social security schemes. The extension of the scope of such bodies in line with 
the current proposal will not impose a significant burden on Member States. 

TITLE IV 

IMPLEMENTATION 

This part contains the horizontal provisions in relation to the implementation of the Directive. 
It requires Member States to ensure any provisions contrary to the principle of equal pay or 
equal  treatment  (for  example  laws,  collective  agreements,  individual  contracts,  etc.)  are 
abolished  or  are  declared  null  and  void  or  amended  as  appropriate.  It  also  provides  for  the 
protection  of  employees,  including  employees  who  are  employees'  representatives,  from 
victimisation.  

It  requires  Member  States  to  provide  a  system  of  effective,  proportionate  and  dissuasive 
sanctions to be applied in case of infringement of rights granted under this Directive in order 
to guarantee full practical effect (effet utile) of this Directive. Member States are also required 
to notify the Commission of the provisions adopted in this area 

It  requires  Member  States  to  encourage  employers  and  those  responsible  for  vocational 
training  to  proactively  develop  adequate  measures  for  preventing  sex  discrimination  and  in 
particular harassment and sexual harassment at the workplace. 

It contains a standard non-regression clause.  

The proposal for a Directive contains a provision similar to that in Directive 2002/73/EC on 
the  obligation  of  Member  States  to  take  actively  into  account  the  objective  of  equality 
between  men  and  women  when  formulating  and 
laws,  regulations, 
administrative provisions and activities in the areas referred to in the scope of the Directive.  

implementing 

Furthermore the proposal obliges Member States to ensure that the Directive together with the 
transposing national provisions are brought to the attention of all persons concerned. 

TITLE V FINAL PROVISIONS 

This part contains standard provisions adapted to the present proposal for a Directive.  

A  standard  clause  on  the  transposition  of  the  Directive  requires  the  Member  States  to  fulfil 
some  information  requirements,  such  as  regularly  communicating  transposing  national  laws 
and  collective  agreements  as  well  as  appropriate  correlation  tables  to  the  Commission. 
Another  standard  clause  taken  from  Article  2  of  Directive  2002/73/EC  requires  Member 
States to give a reference to this Directive in transposing laws.  

21 

 
 
  
 
It also contains an Article on Directives regrouped in the present proposal, which should be 
repealed once the new Directive becomes applicable in the Member States. 

There is also the "standard review clause" (Article 32) providing that the Commission shall, 
no later than 30 June 2008, review the operation of this Directive with a view of presenting, if 
need be, the necessary modifications.  

It also integrates the specific provision contained in Directive 2002/73/EC on regular reports 
every four years to the Commission by which Member States should inform the Commission 
on positive action measures taken under Article 141(4) of the EC  Treaty and  in accordance 
with Declaration 28 (priority given to positive action measures for women).  

4. LEGAL BASE 

The proposal for a Directive is based on Article 141(3) EC which empowers the Community 
to  adopt  measures  to  ensure  the  application  of  the  principle  of  equal  treatment  of  men  and 
women in matters of employment and occupation. Since all the areas covered by the original 
Directives  75/117/EEC,  86/378/EEC,  as  amended  by  Directive  96/97/EEC,  76/207/EEC  as 
amended  by  Directive  2002/73/EC  and  97/80/EC,  as  amended  by  98/52/EC  fall  within  the 
the  recast  Directive, 
legal  category  of  "matters  of  employment  and  occupation", 
amalgamating the Directives mentioned, can be put on the same legal basis. 

Legislation ensuring equal treatment between men and women in the area of employment and 
occupation adopted under and/or covered by Article 141 EC should, for all areas covered, use 
the  same  concepts  as  those  used  in  the  legislation  adopted  recently  such  as  Directive 
2002/73/EC amending Directive 76/207/EEC, as well as in similar legislation adopted under 
Article 13 EC, to combat discrimination on grounds other than sex, insofar as the latter also 
concerns  the  area  of  employment,  in  order  to  ensure  legal  and  political  coherence  between 
pieces  of  legislation,  which  have  similar  objectives.  It  is  therefore  necessary  to  ensure 
coherence between  secondary  legislation on identical  issues,  such as  the concept of indirect 
discrimination  or  the  need  for  Member  States  to  have  bodies  for  the  promotion  of  equal 
treatment, in broader areas of employment and occupation and not only for matters covered 
by Directive 2002/73/EC, amending Directive 76/207/EEC. 

5. JUSTIFICATION  WITH 
PROPORTIONALITY. 

REGARD 

TO 

SUBSIDIARITY 

AND 

The use of a Community legislative instrument is in keeping with the principle of subsidiarity. 
The recasting of existing directives in the area of equal opportunities and equal treatment of 
men  and  women  in  matters  of  employment  and  occupation  will  help  ensure  that  these 
principles  are  uniformly  and  effectively  applied  at  national  level.  Moreover  there  is  a 
requirement  to  ensure  coherence  at  Community  level  of  legislation  implementing  the 
principle  of  equal  treatment.  In  the  case  of  sex  discrimination  this  can  best  be  achieved 
through the recasting of existing legislation. 

The content of the proposed instrument also complies with the principle of proportionality, as 
it  gives  Member  States  the  greatest  possible  latitude  in  determining  how  the  effective 
application of the principle of equal treatment in this respect is to be applied. 

22 

 
 
  
 
The Community legislation will have no direct impact on enterprises' operations and will not 
impose  any  administrative  or  legal  constraints  which  could  hinder  the  creation  and 
development of SMEs. 

6. COMMENTARY ON THE ARTICLES 

There was a need to make some linguistic corrections to the Finnish, Italian, Portuguese and 
Swedish versions of the texts of the recast directives in order to ensure consistency with other 
linguistic versions. 

TITLE I  

General provisions  

Article 1  

This Article defines the purposes of the Directive.  

The  Directive  covers  the  matters  addressed  in  Directives  76/207/EEC  as  amended  by 
Directive 2002/73/EC, (relating to access to employment, vocational training and promotion, 
and working conditions), and also by Directives 75/117/EEC (equal pay) and 86/378/EEC as 
amended by Directive 96/97/EC (occupational social security schemes). 

The  purpose  of  the  Directive  is  furthermore  to  clarify  the  existing  links  between  Directives 
76/207/EEC  as  amended  and  92/85/EEC  on  matters  relating  to  maternity  and  pregnancy 
covered  by  these  Directives.  It  provides  clear  and  consistent  definitions,  updates  the  text 
through integration of settled caselaw and provides for a clearly structured legal text. 

This  Directive  is  also  designed  to  ensure  the  effective  application  of  the  principle  of  equal 
treatment, including notably the extension of the rules on the reversal of the burden of proof 
to all areas falling within its material scope . 

Article 2 

This Article defines  the concepts of  direct and indirect  discrimination,  harassment based on 
sex  and  sexual  harassment.  The  definitions  are  identical  to  those  contained  in  the  already 
adopted Directive 2002/73/EC. 

It  also  reproduces  the  definition  of  "pay"  as  contained  in  Article  141  EC  as  well  as  the 
definition  of  "occupational  social  security  schemes"  contained  in  Article  2  of  Directive 
86/378/EEC as amended by Article 1 point 1 paragraph 1 of Directive 96/97/EC. 

Article 3 

This  Article  defines  the  personal  scope  of  the  Directive  in  identical  terms  to  those  used  in 
Directive 96/97/EC. 

Paragraph  2  contains  a  standard  formulation  which  exists  in  all  Directives  relating  to  equal 
treatment between men and women. It reflects the well established principle that measures for 
the  protection  of  women  during  pregnancy  and  maternity  are  a  permitted  exception  to  the 
principle  of  equal  treatment.  It  incorporates  a  text  appearing  in  Article  1,  paragraph  2,  of 

23 

 
 
  
 
Directive 2002/73/EC which has a horizontal effect for the Directives (see also Article 5(2) of 
Directive 86/378/EEC). 

Paragraph 3 includes the adapted first sentence of the fourth subparagraph of Article 2(7) of 
Directive 76/207/EEC as amended by paragraph 2 of Article 1 of Directive 2002/73/EC52. 

TITLE II  

Specific provisions 

Chapter 1 

Principle of equal pay 

Article 4 

This  Article  corresponds  to  the  principal  Article  of  Directive  75/117/EEC  on  equal  pay, 
slightly  adapted  to  take  into  account  the  recent  caselaw  of  the  Court  in  particular  its 
Judgement of 17 September 2002 in the Case C-320/00 A. G. Lawrence and Others v Regent 
Office Care Ltd, Commercial Catering Group and Mitie Secure Services Ltd.53 as well as the 
Judgement  of  13  January  2004  in  the  Case  Debra  Allonby  v.  Accrington  /  Rossdendale 
College,  C-256/0154.  According  to  this  caselaw  the  Court  has  introduced  a  new  element 
broader than the same establishment or the same service for the comparison of work of equal 
value, that of a single source. The Court has specified that "there is, in this context nothing in 
the wording of Article 141(1) EC to suggest that the applicability of that provision is limited 
to situations in which men and women work for the same employer". 

Therefore, the principle of equal pay for men and women, implies that remuneration for the 
same  work  or  work  of  equal  value  need  not  necessarily  be  paid  by  one  and  the  same 
employer, but must originate from a single source to which any differences identified in pay 
conditions can be attributed. In the absence of a single source there would be no body which 
was responsible for any inequality and which could restore equal treatment.  

As  far  as  the  question  of  job  classification  is  concerned  the  text  of  the  present  proposal 
remains unchanged by comparison with the text of Article 1 of Directive 75/117/EEC. 

Principal of equal treatment in occupational social security schemes 

Chapter 2 

Article 5 

This Article corresponds to the first paragraph of Article 5 of Directive 86/378/EC, which was 
not modified by Directive 96/97/EC. It provides for the application of the principle of equal 
treatment in occupational social security schemes within the limits as set out in Article 6.  

52 
53 
54 

OJ L 348, 28.11.1992, p.1 
ECR. 2002 I p.7325 
not published in print yet. 

24 

 
 
  
 
                                                 
Article 6 

The  first  paragraph  of  this  Article  integrates  unchanged  Article  4  of  Directive  86/378/EEC 
relating  to  the  material  scope  of  this  chapter  in  relation  to  occupational  schemes  and  risks 
covered.  

The second paragraph is a new provision reflecting the caselaw of the Court of Justice on the 
application of the present Article 141(1) and (2) EC to specific schemes for public servants.55 
By codifying this caselaw, the Directive clarifies that it also applies to social security schemes 
concerning  a  particular  category  of  public  servants,  if  the  benefits  concerned  are  paid  by 
reason of the employment relationship, are directly related to the period of service completed 
and the amount is calculated by reference to the last salary. The fact that a particular scheme 
for a particular category of public servants and other staff recruited by the State is part of a 
general, harmonised framework of a statutory scheme is without prejudice in this respect (see 
in particular judgements in Beune and Niemi). 

Article 7 

This  provision  incorporates,  without  changes,  Article  2,  paragraphs  2  and  3,  of  Directive 
86/378/EEC as amended by Article 1, paragraph 1, of Directive 96/97/EC. 

As with the previous directives: 
(a)  individual  contracts  for  self-employed  workers  (since  these  contracts  are  in  principle 
private); 
(b)  schemes  for  self-employed  workers  having  only  one  member  (as  for  the  previous  point 
these contracts are in principle private); 
(c) insurance contracts to which the employer is not a party, in the case of salaried workers 
are not covered by the current proposal. 

Points (d) and (e) concern private arrangements, between the insured person and the scheme, 
which  do  not  fall  within  the  meaning  of  occupational  social  security  scheme  as  defined  in 
Article 2 of the present proposal. 

The second paragraph reflects the caselaw of the Court in its judgement of 9 November 1993 
in  Case  C-132/92  Birds  Eye  Walls,56  on  "bridging  pensions"  and  is  taken  unchanged  from 
Article  2(3)  of  Directive  86/378/EEC  as  inserted  by  Article  1,  paragraph  1,  of  Directive 
96/97/EC. 

Article 8 

This Article corresponds to Article 6 of Directive 86/378/EEC as amended by Article 1(3) of 
Directive  96/97/EC  in  order  to  take  into  account  the  caselaw  of  the  Court  in  Neath  and 
Coloroll and contains a non-exhaustive list of provisions which are contrary to the principle 
of equal treatment. 

55 

56 

Judgments  of  the  Court  of  28th  September  1994.  Case  C-7/93  Beune,  ECR  1994  page  I-4471  or 
17th April  1997  in  case 147/95  Evrenopoulos  ECR  p.I-02057 of 29th  November  2001,  case  C-366/99 
Griesmar ECR p I-09383, of 13th December 2001 case C-206/00. ECR 2001 I-0201 Henri Mouflin and 
more recently in judgment of 12th September 2002 in C-351/00 Niemi ECR 2002 p. I-07007. 
Birds Eye Walls Ltd. v Friedel M. Roberts. ECR 1993 I p. 5579 

25 

 
 
  
 
 
 
                                                 
The  original  Article  is  slightly  modified  in  that  point  h  of  paragraph  1  does  not  make 
reference to the annex contained in Directive 96/97/EC amending Directive 86/378/EEC. This 
annex  gives  examples  of  certain  elements  in  the  case  of  funded  defined-benefit  schemes, 
which may be unequal where the inequality of the amounts results from the effects of the use 
of  actuarial  factors  differing  according  to  sex  at  the  time  when  the  scheme's  funding  is 
implemented.  

These examples are as follows: 

- conversion into a capital sum of part of a periodic pension, 
- transfer of pension rights, 
-  a  reversionary  pension  payable  to  a  dependant  in  return  for  the  surrender  of  part  of  a 
pension, 
- a reduced pension where the worker opts to take early retirement. 

Article 9 

This Article corresponds to Article 8 of Directive 86/378/EEC, as amended by Article 1(4) of 
Directive 96/97/EC, concerning the application of the Directive to occupational schemes for 
self-employed  workers.  These  provisions  were  not  affected  by  the  caselaw  of  the  Court  in 
Barber and the subsequent judgements. 

Provisions  contrary  to  the  principle  of  equal  treatment  in  occupational  schemes  for  self-
employed must be revised with effect from 1 January 1993 at the latest or for Member States 
whose accession took place after that date, at the date that Directive 86/378/EC as amended 
by Directive 96/97/EC became applicable in their territory.  

The Directive does not preclude rights and obligations relating to a period of membership of 
an  occupational  scheme  for  self-employed  workers  prior  to  revision  of  that  scheme  from 
remaining subject to the provisions of the scheme in force during that period. 

Article 10 

This Article corresponds to Article 9 of Directive 86/378/EEC as amended by Article 1(5) of 
Directive 96/97/EC. It concerns the derogations in relation to the application of the Directive 
to occupational schemes for self-employed workers which, as with the previous Article, were 
not  affected  by  the  caselaw  of  the  Court  in  Barber  and  the  subsequent  judgements.  These 
derogations  concern  the  determination  of  a  pensionable  age,  the  right  to  survivor's  benefits 
and  the  equalisation  of  contributions  to  an  occupational  social  security  scheme  for  self-
employed workers. Point (c) of the former Article 9 of Directive 86/378/EEC as amended by 
Directive  96/97/EC  (paragraph  5  of  Article  1),  contains  a  transitional  period  for  the 
equalisation of contributions of self-employed persons. 

Article 11 

This Article corresponds to Article 2 of Directive 96/97/EC.  

Paragraphs  1  and  2  of  this  Article  reflect  the  caselaw  of  the  Court  on  the  retrospective 
application of current Article 141(1) and (2) (ex Article 119) in occupational social security 
schemes which is integrated in Directive 96/97/EC. Paragraph 3 reflects the application of the 
Directive  in  Member  States,  which  were  former  contracting  parties  to  the  agreement  on  the 
European Economic Area. 

26 

 
 
  
 
 
 
There  is  however  a  new  paragraph  4,  specifying  that  for  other  Member  States  whose 
accession  took  place  after  the  date  of  17  May  1990,  the  date  of  17  May  1990  in  the  above 
mentioned  paragraphs  1  and  2  will  be  replaced  by  the  date  that  Article  141(1)  and  (2)  (ex 
Article 119) became applicable in their territory (in order to cover the situation of acceding 
countries). 

Article 12 

This Article corresponds to Article 9a of Directive 86/378/EEC (which has been inserted by 
Article 1 of  Directive 96/97/EC) on flexible retirement. Accordingly, a flexible  pensionable 
age under the same conditions for men and women will not be deemed incompatible with this 
Directive. 

The principle of equal treatment for men and women as regards access to employment, 
vocational training and promotion and working conditions 

Chapter 3  

Article 13 

The  first  paragraph  of  this  Article  corresponds  to  Article  3,  paragraph  1,  of  Directive 
76/207/EEC as amended by Article 1, paragraph 3, of Directive 2002/73/EC. This new Article 
corresponds  to  similar  formulations  contained  in  Directives  based  on  Article  13  EC  i.e. 
2000/43/EC57 and 2000/78/EC58. 

The  second  paragraph  of  this  Article  corresponds  to  Article  2,  paragraph  6,  of  Directive 
76/207/EEC as amended by Article 1, paragraph 2, of Directive 2002/73/EC. It concerns the 
extent to which derogations from the principle of equal treatment are permitted in the case of 
a job that by its very nature requires a person of a specific sex, and is in conformity with the 
caselaw of the Court on this subject59.  

The  third  paragraph  corresponds  to  Article  9  (2)  of  Directive  76/207/EEC  which  refers  to  the 
exclusion clause in Article 2 (6) of Directive 76/207/EEC as amended by Article 1, paragraph 2, 
6 of Directive 2002/73/EC.  

Article 14 

This Article corresponds to Article 2, paragraph 8, of Directive 76/207/EEC as amended by 
Article  1,  paragraph  2,  of  Directive  2002/73/EC  and  relates  to  the  possibility  under  Article 
141 (4) EC of Member States maintaining or adopting measures with a view to ensuring full 
equality in practice between men and women in working life. 

Article 15 

This Article reflects the caselaw of the Court on maternity and pregnancy (see in particular, 
Case 184/83 Hofmann v. Barmer Ersatzkasse [1984] ECR 3047, paragraph 25, Case C-421/92 
Habermann-Beltermann [1994] ECR I-1657, paragraph 21, and Case C-32/93 Webb v EMO 

57 
58 
59 

OJ L 18019 July 2000 p.22 
OJ.L 303 2 December 2000 p.16 
Judgment  of  15  May  1986  in  Case  C-222/84  Johnston;  judgment  of  26  October  1999,  Sirdar,  [1999] 
ECR I-0000 and judgment of 11 January 2000 in Case C-285/98 Kreil [2000] ECR I-0000. 

27 

 
 
  
 
                                                 
Air  Cargo  [1994] ECR  I-3567,  paragraph  20).  It  clarifies  the  links  between  Directive 
92/85/EEC  and  the  present  proposal  for  a  Directive  in  relation  to  matters  dealt  with  in  this 
chapter  and  covered  by  Article  2,  paragraph  7,  second  and  third  indents,  of  Directive 
76/207/EEC as  amended  by Article 1, paragraph 2,  of  Directive  2002/73/EC,  as  established 
by the caselaw.  

The  proposal  in  the  first  paragraph,  which  specifies  that  "Less  favourable  treatment  of  a 
woman  related  to  pregnancy  or  maternity  leave  shall  constitute  discrimination  within  the 
meaning of this Directive.", reflects the third indent of Article 2 (7) of Directive 76/207/EEC, 
as inserted by paragraph 2 of Article 1 of Directive 2002/73/EC. 

The  second  paragraph  corresponds  to  the  second  indent  of  Article  2(7)  of  Directive 
76/207/EEC, as inserted by paragraph 2 of Article 1 of Directive 2002/73/EC, and integrates 
unchanged the text of that provision which reflects the caselaw of the Court on the right of a 
woman on maternity leave, 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. 

Article 16 

This  Article  integrates  unchanged  the  second  part  of  the  fourth  indent  of  Article  2  (7)  of 
Directive 76/207/EEC as inserted by paragraph 2 of Article 1 of Directive 2002/73/EC, which 
specifies  that  this  Directive  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 are required to take the necessary measures to protect working men and 
women against dismissal due to exercising those rights and to ensure that, at the end of such 
leave, they are 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. 

This  paragraph  on  paternity  and  adoption  leave  was  introduced  by  both  the  European 
Parliament and the Council during the negotiations for the adoption of Directive 2002/73/EC. 

TITLE III  

Horizontal Provisions 

Chapter 1  

Defence of Rights 

Section1 

Remedies 

Article 17 

This Article corresponds to (Article 6 (1), (3) and (4) of Directive 76/207/EEC, as amended 
by Article 1, paragraph 5, of Directive 2002/73/EC, adapted in order to also cover equal pay. 

28 

 
 
  
 
In  conformity  with  the  caselaw  of  the  Court  60,  paragraph  3  specifies  that  the  previous 
paragraphs are without prejudice to national rules relating to time limits for bringing actions 
as  regards  the  principle  of  equal  treatment.  This  corresponds  to  paragraph  4  of  Article  6  of 
Directive 76/207/EEC, introduced by Article 1, paragraph 5, of Directive 2002/73/EC. 

Article 18 

This Article corresponds to Article 6 (2) of Directive 76/207/EEC as amended by Article 1, 
paragraph 5, of Directive 2002/73/EC, and relates to compensation in case of infringement of 
the principle of equal treatment in accordance with the caselaw of the Court. 

Section 2 

Burden of proof 

Article 19 

This  Article  corresponds  to  the  principal  Article  of  Directive  97/80/EC  on  the  burden  of 
proof, i.e. Article 4. 

Article 20 

This  Article  corresponds  to  Article  3  of  Directive  97/80/EC  relating  to  the  scope  of  that 
Directive. This Article is also slightly adapted in order to cover all situations covered by the 
present proposal for a Directive (see supra). 

The exception relating to criminal procedures (Article 3 (2) of Directive 97/80) is reflected in 
paragraph 2. 

Chapter 2 

Bodies for the promotion of equal treatment – social dialogue 

Article 21 

This  Article  concerns  the  establishment,  role  and  competencies  of  equality  bodies  already 
provided for under Article 8a of Directive 76/207/EEC (introduced by Article 1, paragraph 7, 
of Directive 2002/73/EC). This provision will apply under the present proposal to all matters 
covered by the Directives forming part of the present recast.  

Article 22 

This Article concerns the obligation on Member States, in accordance with national traditions 
and practice, to promote social dialogue and to encourage equality plans at the workplace.  

This  Article  corresponds  to  Article  8b  of  Directive  76/207/EEC  (introduced  by  Article  1, 
paragraph  7,  of  Directive  2002/73/EC)  and  will  apply  to  all  matters  covered  by  the  present 
proposal for a Directive.  

60 

Judgement of 16th May 2000 in case C-78/98 Preston ECR 2000 p. I-03201. 

29 

 
 
  
 
                                                 
Article 23 

This  Article  concerns  the  obligation  on  Member  States  to  encourage  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.  This  provision 
which already exists in Directive 76/207/EEC (Article 8c, introduced by Article 1, paragraph 
7,  of  Directive  2002/73/EC),  should  legitimately  have  a  horizontal  effect  and  apply  to  all 
matters covered by the present proposal. A similar Article also exists in the recently adopted 
Directives based on Article 13 EC (Directive 2000/43/EC and 2000/78/EC). 

TITLE IV 

Implementation 

Article 24 

This  Article  is  a  classic  provision,  contained  in  Article  3  (2)  of  Directive  76/207/EEC  as 
amended  by  paragraph  3  of  Article  1  of  Directive  2002/73/EC,  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. 

Article 25 

This  provision  comes  from  Directive  2002/73/EC  and  applies  horizontally  to  all  situations 
within  the  material  scope  of  the  Directive  (Article  1,  paragraph  6,  replacing  Article  7  of 
Directive  76/207/EEC).  It  concerns  the  obligation  of  Member  States  to  introduce  into  their 
national legal systems such measures as are necessary to protect employees, including those 
who  are  employees'  representatives  provided  for  by  national  laws  and/or  practices,  against 
dismissal or other adverse treatment by the employer as a reaction to a complaint within the 
undertaking or to any legal proceedings aimed at enforcing compliance with the principles of 
equal treatment.  

Article 26 

This Article is a standard provision dealing with sanctions for breach of the principle of equal 
treatment. Equivalent provisions are found in Article 8d of Directive 76/207/EEC, introduced 
by  Article  1,  paragraph  7,  of  Directive  2002/73/EC.  Article  26  regroups  all  the  provisions 
relating to sanctions and makes them applicable to the matters covered by this Directive. 

Article 27 

This  Article  comes  from  Article  2  (5)  of  Directive  76/207/EEC,  as  inserted  by  Article  1, 
paragraph 2, of Directive 2002/73/EC, recommending that Member States shall encourage the 
taking of preventive measures against sex discrimination, harassment and sexual harassment. 

30 

 
 
  
 
Article 28 

This is again a standard provision which provides that there should be no lowering of the level 
of  protection  against  discrimination  on  grounds  of  sex  already  afforded  by  Member  States 
when implementing the Directive. 

Article 29 

This  Article  concerning  gender  mainstreaming  reflects  the  spirit  of  Article  3(2)  EC  and  is 
identical  to  Article  1(1a)  of  Directive  76/207/EEC  as  inserted  by  Article  1,  paragraph  1,  of 
Directive 2002/73/EC. This provision has horizontal effect and will apply to matters covered 
by all the Directives forming part of the present recast.  

Article 30 

This provision comes from Directive 97/80/EC (Article 5)  as well as Directive 75/117/EEC 
(Article  7)  and  concerns  the  obligation  of  Member  States  to  take  care  that  the  provisions 
adopted pursuant to this Directive, together with the relevant provisions already in force, are 
brought  to  the  attention  of  persons  concerned  by  all  appropriate  means,  for  example  at  the 
workplace.  This  important  provision  has  a  horizontal  effect  and  will  apply  to  all  matters 
covered by the present proposal for a Directive. 

TITLE V 

Final provisions 

Article 31 

Paragraph  1  requires  Member  states  to  report  to  the  Commission  on  implementation  of  the 
Directive by ……at the latest, to enable the Commission to draw up a report to the European 
Parliament and the Council.  

Paragraph  2  corresponds,  to  the  provision  contained  in  Article  2,  paragraph  3,  of  Directive 
2002/73/EC on reporting every four years on measures taken by Member States pursuant to 
Article 141(4) EC. 

Article 32 

The Article provides for a possible revision of the Directive and exists in other Directives in 
similar terms. The impact of the Directive will be carefully assessed by the Commission and 
any adjustments deemed necessary may then be proposed as appropriate. 

Article 33 

Paragraph 1 of this Article specifies the date for transposition of this Directive by the Member 
States. In line with recently agreed practice, it also requires the Member States to notify the 
text of the provisions adopted in transposing the Directive 

Paragraph 2 is a standard provision requiring provisions adopted to implement the Directive 
to  include  a  reference  to  this  Directive  or  to  be  accompanied  by  such  a  reference.  This 
paragraph  also  includes  a  further  provision  requiring  such  reference  to  include  a  statement 

31 

 
 
  
 
that  references  in  existing  laws,  regulations  and  administrative  provisions  to  Directives 
repealed by this Directive shall be construed as references to this Directive. 

Article 34 

This Article concerns the repeal of the Directives forming part of the present recast once this 
Directive  has  been  adopted  by  the  Council  and  the  European  Parliament.  This  provision  is 
without  prejudice  to  the  obligations  on  the  Member  States  relating  to  the  time-limits  for 
transposition into national law and the application dates of the existing Directives. 

Article 35 

This is a standard Article specifying that the Directive shall enter into force on the [twentieth] 
day following that its publication in the Official Journal of the European Union. 

Article 36 

This is a standard Article specifying that the Directive is addressed to the Member States.  

32 

 
 
  
 
2004/0084 (COD) 

Proposal for a 

DIRECTIVE OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL 

on the implementation of the principle of equal opportunities and equal treatment of 
men and women in matters of employment and occupation 

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 Commission61, 

Having regard to the opinion of the European Economic and Social Committee62, 

Having regard to the opinion of the Committee of the Regions63, 

Acting in accordance with the procedure laid down in Article 251 of the Treaty, 

Whereas: 

(cid:216) new 

(1) 

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  conditions64,  and  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 schemes65 have been substantially 
amended. 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  women66 and Council Directive 97/80/EC  of  15  December  1997  on  the 
burden  of  proof  in  cases  of  discrimination  based  on  sex67  also  contain  provisions 
which  have  as  their  purpose  the  implementation  of  the  principle  of  equal  treatment 
between  men  and  women.  Since  further  amendments  are  to  be  made  to  these 
Directives,  they  should  be  recast  in  the  interests  of  clarity  and  in  order  to  bring 
together  in  a  single  text  the  main  provisions  existing  in  this  field  as  well  as  certain 

OJ C , , p.  
OJ C , , p. . 
OJ C , , p. . 

61 
62 
63 
64 OJ L 39, 14.2.1976, p. 40, Directive as amended by Directive 2002/73/EC (OJ L 269, 5.10.2002, p.15). 
65 OJ L 225, 12.8.1986, p. 40, Directive as amended by Directive 96/97/EC (OJ L 46, 17.2.1997, p. 20). 
66 OJ L 45, 19.2.1975, p. 19. 
67 OJ L 14, 20.1.1998, p. 6, Directive as amended by Directive 98/52/EC (OJ L 205, 22.7.1998, p. 66). 

33 

 
 
  
 
 
                                                 
developments  arising  out  of  the  caselaw  of  the  Court  of  Justice  of  the  European 
Communities. 

(cid:208) 2002/73/EC, Recital 4(adapted) 
(adapted) 

(2) 

Equality  ⌦ treatment ⌫  between  women  ⌦ men ⌫  and  men  ⌦ women ⌫  is  a 
fundamental  principle,  ⌦ of  Community  law  which  according ⌫  to  under  Article 
⌦ s ⌫ 2 and Article 3(2) of the EC Treaty the Community must and the case-law of 
the Court of  Justice. These Treaty provisions proclaim  equality  between women and 
men  as  a  'task'  and  an  'aim'  of  the  Community  and  impose  a  positive  obligation  to 
'promote' it in all its activities. 

(cid:208) 2002/73/EC, 
(adapted) 

Recital 

5 

(3) 

Article 141 ⌦ (3) ⌫ of the Treaty, and in particular paragraph 3, addresses ⌦ now 
provides a ⌫ specifically ⌦ legal base for the adoption of Community measures to 
ensure the application of the principle of ⌫ equal opportunities and equal treatment 
of  men  and  women  in  matters  of  employment  and  occupation  ⌦ ,  including  the 
principle of equal pay for equal work and work of equal value ⌫ . 

(cid:208) 2002/73/EC, 
(adapted) 

Recital 

3 

(4)  ⌦ Articles  21  and  23  of ⌫  This  Directive  respects  the  fundamental  rights  and 
observes the principles recognised in particular by the Charter of Fundamental Rights 
of  the  European  Union  ⌦ also  prohibit  any  discrimination  on  grounds  of  sex  and 
enshrine the right to equal treatment between men and women in all areas, including 
employment, work and pay ⌫. 

(5) 

For  reasons  of  coherence,  it  is  necessary  to  provide  a  single  definition  of  direct  and 
indirect discrimination. 

(cid:216) new  

Whereas it is all the more difficult to prove discrimination when it is indirect; it is therefore 

important to define indirect discrimination. 

(cid:208) 97/80/EC, Recital 19 (adapted) 

34 

 
 
  
 
 
 
 
 
 
(6) 

(7) 

(8) 

(9) 

(cid:208) 2002/73/EC, 
(adapted) 

Recital 

8 

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

(cid:208) 2002/73/EC, 
(adapted) 

Recital 

9 

In  this  context,  employers  and  those  responsible  for  vocational  training  should  be 
encouraged  to  take  measures  to  combat  all  forms  of  sexual  discrimination  ⌦ on 
grounds of sex ⌫ and, in particular, to take preventive measures against harassment 
and  sexual  harassment  in  the  workplace,  in  accordance  with  national  legislation  and 
practice. 

(cid:216) new 

The  principle  of  equal  pay  for  equal  work  or  work  of  equal  value  as  laid  down  by 
Article  141  of  the  Treaty  constitutes  an  important  aspect  of  the  principle  of  equal 
treatment  between  men  and  women.  It  is  therefore  appropriate  to  make  further 
provision for its implementation. 

It  is  well-established  that  the  principle  of  equal  pay  is  not  limited  to  situations  in 
which  men  and  women  work  for  the  same  employer. According to the judgments of 
the  Court  of  Justice  in  Case  C-320/00:  A.G.  Lawrence  and  Others  v  Regent  Office 
Care Ltd, Commercial Catering Group and Mitie Secure Services Ltd68 and Case C-
256/01:  Debra  Allonby  v  Acccrington  &  Rossendale  College,  Education  Lecturing 
Services  and  The  Secretary  of  State  for  Education  and  Employment69,  there  must 
nevertheless be a single source to which any differences  identified in pay conditions 
can  be  attributed  since  otherwise  there  is  no  body  which  is  responsible  for  any 
inequality and which could restore equal treatment. 

68 [2002] ECR I-7325. 
69 Judgment of 13.1.2004. 

35 

 
 
  
 
 
 
 
                                                 
(cid:208) 86/378/EEC, 
(adapted) 

Recital 

1 

Whereas  the  Treaty  provides  that  each  Member  State  shall  ensure  the  application  of  the 
principle  that  men  and  women  should  receive  equal  pay  for  equal  work;  whereas 
«pay» should be taken to mean the ordinary basic or minimum wage or salary and any 
other consideration, whether in cash or in kind, which the worker receives, directly or 
indirectly, from his employer in respect of his employment; 

(cid:208) 86/378/EEC, 
(adapted) 

Recital 

2 

Whereas,  although  the  principle  of  equal  pay  does  indeed  apply  directly  in  cases  where 
discrimination can be determined solely on the basis of the criteria of equal treatment 
and  equal  pay,  there  are  also  situations  in  which  implementation  of  this  principle 
implies the adoption of additional measures which more clearly define its scope. 

Whereas  implementation  of  the  principle  that  men  and  women  should  receive  equal  pay 
contained  in  Article  119  of  the  Treaty  is  an  integral  part  of  the  establishment  and 
functioning of the common market; 

(cid:208) 75/117/EEC, 
(adapted) 

Recital 

1 

Whereas  it  is  primarily  the  responsibility  of  the  Member  States  to  ensure  the  application  of 
this principle by means of appropriate laws, regulations and administrative provisions; 

(cid:208) 75/117/EEC, 
(adapted) 

Recital 

2 

(cid:208) 75/117/EEC, 
(adapted) 

Recital 

3 

Whereas the Council resolution of 21 January 197470 concerning a social action programme, 
aimed  at  making  it  possible  to  harmonise  living  and  working  conditions  while  the 
improvement  is  being  maintained  and  at  achieving  a  balanced  social  and  economic 
development  of  the  Community,  recognised  that  priority  should  be  given  to  action 
taken  on  behalf  of  women  as  regards  access  to  employment  and  vocational  training 
and advancement, and as regards working conditions, including pay; 

70 

OJ No C 13, 12.2.1974, p. 1. 

36 

 
 
  
 
 
 
 
 
 
                                                 
Whereas  it  is  desirable  to  reinforce  the  basic  laws  by  standards  aimed  at  facilitating  the 
practical application of the principle of equality in such a way that all employees in the 
Community can be protected in these matters; 

(cid:208) 75/117/EEC, 
(adapted) 

Recital 

4 

(cid:208) 75/117/EEC, 
(adapted) 

Recital 

5 

Whereas differences continue to exist in the various Member States despite the efforts made 
to apply the resolution of the conference of the Member States of 30 December 1961 
on  equal  pay  for  men  and  women  and  whereas,  therefore,  the  national  provisions 
should be approximated as regards application of the principle of equal pay; 

(10)  Specific measures should be adopted to ensure the implementation of the principle of 
equal treatment in occupational social security schemes and to define its scope more 
clearly. 

(cid:216) new 

(cid:208) 86/378/EEC, 
(adapted) 

Recital 

3 

Whereas,  Article  1(2)  of  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  conditions71 
provides that, with a view to ensuring the progressive implementation of the principle 
of equal treatment in matters of social security, the Council, acting on a proposal from 
the  Commission,  will  adopt  provisions  defining  its  substance,  its  scope  and  the 
arrangements  for  its  application;  whereas  the  Council  adopted  to  this  end  Directive 
79/7/EEC of 19 December 1978 on the progressive implementation of the principle of 
equal treatment for men and women in matters of social security72. 

Whereas  Article  3  (3)  of  Directive  79/7/EEC  provides  that,  with  a  view  to  ensuring 
implementation  of  the  principle  of  equal  treatment  in  occupational  schemes,  the 

(cid:208) 86/378/EEC, 
(adapted) 

Recital 

4 

71 
72 

OJ No L 39, 14. 2. 1976, p. 40. 
OJ No L 6, 10. 1. 1979, p. 24. 

37 

 
 
  
 
 
 
 
 
 
                                                 
Council, acting on a proposal from the Commission, will adopt provisions defining its 
substance, its scope and the arrangements for its application; 

(cid:208) 86/378/EEC, 
(adapted) 

Recital 

5 

Whereas  the  principle  of  equal  treatment  should  be  implemented  in  occupational  social 
security schemes which provide protection against the risks specified in Article 3 (1) 
of  Directive  79/7/EEC  as  well  as  those  which  provide  employees  with  any  other 
consideration in cash or in kind within the meaning of the Treaty; 

Whereas implementation of the principle of equal treatment does not prejudice the provisions 

relating to the protection of women by reason of maternity, 

(cid:208) 86/378/EEC, 
(adapted) 

Recital 

6 

(11) 

In  its  judgement  of  17  May  1990,  in  Case  C-262/88:  Barber  v.  Guardian  Royal 
Exchange  Assurance  Group73,  the  Court  of  Justice  of  the  European  Communities 
acknowledges ⌦ determined ⌫ that all forms of occupational pension constitute an 
element of pay within the meaning of Article ⌦ 141 ⌫ 119 of the Treaty. 

(cid:208) 96/97/EC, Recital 2 (adapted) 

(cid:216) new 

(12)  Although the concept of pay within the meaning of Article 141 of the Treaty does not 
encompass social security benefits, it is now clearly established that a pension scheme 
for public servants falls within the scope of the principle of equal pay if the benefits 
payable  under  the  scheme  are  paid  to  the  worker  by  reason  of  his  employment 
relationship with the public employer, notwithstanding the fact that such scheme forms 
part of a general statutory scheme. According to the judgments of the Court of Justice 
in Case C-7/93: Bestuur van het Algemeen Burgerlijk Pensioenfonds v G. A. Beune74 
and  Case  C-351/00:  Pirkko  Niemi75,  this  condition  will  be  satisfied  if  the  pension 
scheme concerns a particular category of workers and its benefits are directly related 
to the period of service and calculated by reference to the public servant’s final salary. 
For  reasons  of  clarity,  it  is  therefore  appropriate  to  make  specific  provision  to  this 
effect. 

1990 ECR I-1889 

73 
74 [1994] ECR I-4471.  
75 [2002] ECR I-7007. 

38 

 
 
  
 
 
 
 
 
                                                 
(cid:208) 96/97/EC, Recital 10 (adapted) 

(13)  Moreover  in  its  judgements  in  Case  C-152/91  and  Case  C-200/91),  the  ⌦ The ⌫ 
Court ⌦ of Justice has confirmed ⌫ specifies that ⌦ whilst ⌫ the contributions of 
male and female workers to a defined-benefit pension scheme must be the same, since 
they  are  covered  by  Article  ⌦ 141 ⌫  119  of  the  Treaty,  whereas  ⌦ any ⌫ 
inequality  ⌦ in ⌫  of  employers'  contributions  paid  under  funded  defined-benefit 
schemes, which is due to the use of actuarial factors differing according to sex, is not 
to be assessed in the light of that same provision. 

(cid:208) 96/97/EC, Recital 4 (adapted) 

(14)  Whereas in accordance with Protocol 2 concerning Article 119 of the Treatyu annexed 
to the Treaty establishing the European Community, ⌦ It is well-established that ⌫ 
benefits  ⌦ payable ⌫  under  occupational  social  security  schemes  shall  ⌦ are ⌫ 
not ⌦ to ⌫ be considered as remuneration if and in so far ⌦ insofar ⌫ as they are 
attributable  to  periods  of  employment  prior  to  17th  May  1990,  except  in  the  case  of 
workers  or  those  claiming  under  them  who,  have  before  that  date,  initiated  legal 
proceedings or raised ⌦ brought ⌫ an equivalent claim under the applicable national 
law; ⌦ before  that  date.  It  is  therefore  necessary  to  limit  the  implementation  of  the 
principle of equal treatment accordingly ⌫ . 

(cid:208) 2002/73/EC, 
(adapted) 

Recital 

11 

(15)  ⌦ Ensuring equal access to employment and the vocational training leading thereto is 
fundamental to the application of the principle of equal treatment of men and women 
in  matters  of  employment  and  occupation.  Any  exception  to  this  principle  should 
therefore be limited to those ⌫ 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 ⌦ a particular ⌫ sex by reason of the 
⌦ their ⌫  nature  of  the  particular  occupational  activities  concerned  ⌦ or  the 
context  in  which  they  are  carried  out ⌫  ,provided  that  the  objective  sought  is 
legitimate, and subject to ⌦ and complies with ⌫ the principle of proportionality as 
laid down by the case-law of the Court of Justice76. 

Whereas  the  Council,  in  its  resolution  of  21  January  1974  concerning  a  social  action 
programme77,  included  among  the  priorities  action  for  the  purpose  of  achieving 

(cid:208) 76/207/EEC, 
(adapted) 

Recital 

1 

76 

77 

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 
OJ No C 13, 12. 2. 1974, p. 1. 

39 

 
 
  
 
 
 
 
 
                                                 
equality  between  men  and  women  as  regards  access  to  employment  and  vocational 
training and promotion and as regards working conditions, including pay; 

Whereas, with regard to pay, the Council adopted on 10 February 1975 Directive 75/117/EEC 
on the approximation of the laws of the Member States relating to the application of 
the principle of equal pay for men and women78; 

(cid:208) 76/207/EEC, 
(adapted) 

Recital 

2 

(cid:208) 76/207/EEC, 
(adapted) 

Recital 

3 

Whereas Community action to achieve the principle of equal treatment for men and women in 
respect of access to employment and vocational training and promotion and in respect 
of other working conditions also appears to be necessary; whereas, equal treatment for 
male and female workers constitutes one of the objectives of the Community, in so far 
as  the  harmonisation  of  living  and  working  conditions  while  maintaining  their 
improvement  are  inter  alia  to  be  furthered;  whereas  the  Treaty  does  not  confer  the 
necessary specific powers for this purpose; 

Whereas the definition and progressive implementation of the principle of equal treatment in 
matters of social security should be ensured by means of subsequent instruments, 

(cid:208) 76/207/EEC, 
(adapted) 

Recital 

4 

(cid:208) 2002/73/EC, 
(adapted) 

Recital 

14 

(16)  Member  States  may,  under  ⌦ In  accordance  with ⌫  Article  141(4)  of  the  Treaty, 
⌦ the  principle  of  equal  treatment  does  not  prevent  Member  States  from 
maintaining ⌫  maintain  or  ⌦ adopting ⌫  adopt  measures  providing  for  specific 
advantages,  in  order  to  make  it  easier  for  the  under-represented  sex  to  pursue  a 
vocational  activity  or  to  prevent  or  compensate  for  disadvantages  in  professional 
careers.  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. 

78 

OJ No L 45, 19. 2. 1975, p. 19. 

40 

 
 
  
 
 
 
 
 
                                                 
(cid:208) 2002/73/EC, 
(adapted) 

Recital 

12 

(17)  ⌦ It  is  clear  from  the caselaw  of  the ⌫  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 ⌦ a woman ⌫ related to pregnancy 
or  maternity  constitutes  direct  sex  discrimination  ⌦ on  grounds  of  sex.  Such 
treatment should therefore be expressly included in this Directive ⌫.  

(18)  ⌦ The  Court  of  Justice  has  consistently  recognised  the  legitimacy,  as  regards  the 
principle  of  equal  treatment,  of  protecting  a  woman's  biological  condition  during 
pregnancy and maternity. ⌫ This Directive is therefore without prejudice to Council 
Directive 92/85/EEC of 19 October 1992 on the introduction of measures to encourage 
improvements in the safety and health at work of pregnant workers and workers who 
have recently given birth or are breastfeeding79.(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. 

(19)  ⌦ For reasons of clarity, it is also appropriate to make express provision for ⌫ The 
Court  of  Justice  has  recognised  the  protection  of  ⌦ the ⌫  employment  rights  of 
women, ⌦ on maternity leave and ⌫ in particular their right to return to the same or 
an equivalent job, ⌦ post and to suffer no detriment in their terms and conditions as a 
result of taking such leave. ⌫with no less favourable working conditions, as well as 
to  benefit  from  any  improvement  in  working  conditions  to  which  they  would  be 
entitled during their absence. 

(cid:216) new 

(20)  The effective implementation of the principle of equal treatment requires appropriate 

procedures to be put in place by the Member States. 

(21)  The provision of adequate judicial or administrative procedures for the enforcement of 
the obligations imposed by this Directive is essential to the effective implementation 
of the principle of equal treatment.  

79 

OJ L 348, 28.11.1992, p. 1. 

41 

 
 
  
 
 
 
                                                 
(cid:208) 97/80/EC, Recitals 13, 14 16 & 
18 (adapted) 

(22)  ⌦ The  adoption  of  rules  on  the  burden  of  proof  plays  a  significant  role  in  ensuring 
that the principle of equal treatment can be effectively enforced. As ⌫ Whereas the 
Court  of  Justice  of  the  European  Communities  has  therefore  held  ⌦ , ⌫  that  the 
rules  on  the  burden  of  proof  must  be  adapted  when  there  is  a  prima  facie  case  of 
discrimination and that, for the principle of equal treatment to be applied effectively, 
⌦ provision  should  therefore  be  made  to  ensure  that ⌫  the  burden  of  proof  must 
shift  ⌦ shifts ⌫  back  to  the  respondent  when  ⌦ there  is  a  prima  facie  case ⌫ 
evidence of such discrimination ⌦ , ⌫ is brought. Whereas Member States need not 
apply the rules on the burden of proof to ⌦ except in relation to ⌫ proceedings in 
which it is for the court or other competent body to investigate the facts. of the case.; 
whereas the procedures thus referred to are those in which the plaintiff is not required 
to prove the facts, which it is for the court or competent body to investigate. ⌦ It is 
however necessary to clarify that ⌫ Whereas the appreciation of the facts from which 
it  may  be  presumed 
indirect  discrimination 
⌦ remains ⌫ is a matter for ⌦ the relevant ⌫ national judicial or other competent 
bodies,  ⌦ body ⌫ 
law  or  practice.  Whereas 
⌦ Further, ⌫ it is for the Member States to introduce, at any appropriate stage of the 
proceedings, rules of evidence which are more favourable to plaintiffs. 

in  accordance  with  national 

there  has  been  direct  or 

that 

Whereas,  on  the  basis  of  the  Protocol  on  social  policy  annexed  to  the  Treaty,  the  Member 
States,  with  the  exception  of  the  United  Kingdom  of  Great  Britain  and  Northern 
Ireland  (hereinafter  called  «the  Member  States»),  wishing  to  implement  the  1989 
Social Charter, have concluded an Agreement on social policy; 

(cid:208) 97/80/EC, Recital 1 (adapted) 

Whereas the Community Charter of the Fundamental Social Rights of Workers recognises the 
importance  of  combating  every  form  of  discrimination,  including  discrimination  on 
grounds of sex, colour, race, opinions and beliefs; 

(cid:208) 97/80/EC, Recital 2 (adapted) 

(cid:208) 97/80/EC, Recital 3 (adapted) 

Whereas  paragraph  16  of  the  Community  Charter  of  the  Fundamental  Social  Rights  of 
Workers  on  equal  treatment  for  men  and  women,  provides,  inter  alia,  that  «action 
should be intensified to ensure the implementation of the principle of equality for men 
and  women  as  regards,  in  particular,  access  to  employment,  remuneration,  working 
conditions, social protection, education, vocational training and career development»; 

42 

 
 
  
 
 
 
 
 
Whereas, in accordance with Article 3(2) of the Agreement on social policy, the Commission 
has consulted management and labour at Community level on the possible direction of 
Community action on the burden of proof in cases of discrimination based on sex; 

(cid:208) 97/80/EC, Recital 4 (adapted) 

Whereas  the  Commission,  considering  Community  action  advisable  after  such  consultation, 
once  again  consulted  management  and  labour  on  the  content  of  the  proposal 
contemplated  in  accordance  with  Article  3(3)  of  the  same  Agreement;  whereas  the 
latter have sent their opinions to the Commission; 

(cid:208) 97/80/EC, Recital 5 (adapted) 

Whereas,  after  the  second  round  of  consultation,  neither  management  nor  labour  have 
informed the Commission of their wish to initiate the process — possibly leading to an 
agreement — provided for in Article 4 of the same Agreement; 

(cid:208) 97/80/EC, Recital 6 (adapted) 

Whereas,  in  accordance  with  Article  1  of  the  Agreement,  the  Community  and  the  Member 
States  have  set  themselves  the  objective,  inter  alia,  of  improving  living  and  working 
conditions;  whereas  effective  implementation  of  the  principle  of  equal  treatment  for 
men and women would contribute to the achievement of that aim; 

(cid:208) 97/80/EC, Recital 7 (adapted) 

(cid:208) 97/80/EC, Recital 8 (adapted) 

Whereas the principle of equal treatment was stated in Article 119 of the Treaty, in 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 
women80  and  in  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 conditions81; 

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 

(cid:208) 97/80/EC, Recitals 9 (adapted) 

80 
81 

OJ L 45, 19. 2. 1975, p. 19. 
OJ L 39, 14. 2. 1976, p. 40. 

43 

 
 
  
 
 
 
 
 
 
 
                                                 
workers  who  have  recently  given  birth  or  are  breastfeeding  also  contributes  s  to  the 
effective  implementation  of  the  principle  of  equal  treatment  for  men  and  women; 
whereas  that  Directive  should  not  work  to  the  detriment  of  the  aforementioned 
Directives  on  equal  treatment;  whereas  therefore,  female  workers  covered  by  that 
Directive  should  likewise  benefit  from  the  adaptation  of  the  rules  on  the  burden  of 
proof. 

Whereas Council Directive 96/34/EC of 3 June 1996 on the framework agreement on parental 
leave  concluded  by  UNICE,  CEEP  and  ETUC82,  is  also  based  on  the  principle  of 
equal treatment for men and women. 

(cid:208) 97/80/EC, Recital 10 (adapted) 

Whereas the references to 'judicial process` and 'court` cover mechanisms by means of which 
disputes may be submitted for examination and decision to independent bodies which 
may hand down decisions that are binding on the parties to those disputes. 

(cid:208) 97/80/EC, Recital 11 (adapted) 

Whereas  the  expression  'out-of-court  procedures`  means  in  particular  procedures  such  as 

conciliation and mediation. 

(cid:208) 97/80/EC, Recital 12 (adapted) 

Whereas it is necessary to take account of the specific features of certain Member States' legal 
systems, inter alia where an inference of discrimination is drawn if the respondent fails 
to produce evidence that satisfies the court or other competent authority that there has 
been no breach of the principle of equal treatment. 

(cid:208) 97/80/EC, Recital 15 (adapted) 

Whereas,  plaintiffs  could  be  deprived  of  any  effective  means  of  enforcing  the  principle  of 
equal  treatment before the  national  courts if the effect of introducing evidence  of an 
apparent discrimination were not to impose upon the respondent the burden of proving 
that his practice is not in fact discriminatory. 

(cid:208) 97/80/EC, Recital 17 (adapted) 

82 

OJ L 145, 19.6.1996, p.4 

44 

 
 
  
 
 
 
 
 
 
                                                 
(cid:208) 2002/73/EC, 
(adapted) 

Recital 

20 

(23)  Persons who have been subject to discrimination based on sex should have adequate 
means  of  legal  protection.  To  provide  a  more  effective  ⌦ With  a  view  to  further 
improving  the ⌫  level  of  protection  ⌦ offered  by  this  Directive ⌫,  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 ⌦ a 
complainant ⌫  any  victim,  without  prejudice  to  national  rules  of  procedure 
concerning representation and defence before the courts. 

(cid:208) 2002/73/EC, 
(adapted) 

Recital 

17 

(24)  The Court of Justice has ruled that, having ⌦ Having ⌫ regard to the fundamental 
nature of the right to effective judicial ⌦ legal ⌫ protection, employees enjoy ⌦ it 
is appropriate to ensure that workers continue to enjoy ⌫ such protection even after 
the  employment  relationship  ⌦ giving  rise  to  an  alleged  breach  of  the  principle  of 
equal treatment ⌫ has ended83. An employee defending or giving evidence on behalf 
of a person protected under this Directive should be entitled to the same protection. 

(cid:208) 2002/73/EC, 
(adapted) 

Recital 

18 

(25)  ⌦ It  has  been  clearly  established  by  the ⌫  The  Court  of  Justice  has  ruled  that,  in 
order  to  be  effective,  the  principle  of  equal  treatment  implies  that,  whenever  it  is 
breached,  the  compensation  awarded  ⌦ for  any  breach ⌫  to  the  employee 
discriminated  against  must  be  adequate  in  relation  to  the  damage  sustained.  It  ⌦is 
therefore  appropriate  to  exclude  the ⌫  has  furthermore  specified  that  fixing  ⌦ of 
any ⌫ a prior upper limit ⌦ for such ⌫ may preclude effective compensation. and 
that  excluding  an  award  of  interest  to  compensate  for  the  loss  sustained  is  not 
allowed84. 

(cid:208) 2002/73/EC, 
(adapted) 

Recital 

21 

(26)  ⌦ In  order  to  enhance  the  effective  implementation  of  the  principle  of  equal 
treatment, ⌫  Member  States  should  promote  dialogue  between  the  social  partners 
and, within the framework of national practice, with non-governmental organisations. 
to  address  different  forms  of  discrimination  based  on  sex  in  the  workplace  and  to 
combat them. 

83 
84 

Case C-185/97 Coote [1998] ECR 1-5199 
Case C-180/95, Draehmpaehl, [1997] ECR I-2195, Case C-271/91, Marshall [1993] ECR I-4367 

45 

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

case of breaches of the obligations under ⌦ this ⌫ Directive 76/207/EEC. 

(cid:208) 2002/73/EC, 
(adapted) 

Recital 

22 

(cid:208) 2002/73/EC, 
(adapted) 

Recital 

23 

(28) 

In accordance with the principle of subsidiarity as set out in Article 5 of the Treaty, 
⌦ Since ⌫ the objectives of the proposed action cannot be sufficiently achieved by 
the Member States and can therefore be better achieved by the ⌦ at ⌫ Community. 
⌦ level,  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 ⌫. for that purpose. 

(cid:208) 97/80/EC, Recital 20 (adapted) 

Whereas  the  aim  of  adequately  adapting  the  rules  on  the  burden  of  proof  has  not  been 
achieved satisfactorily  in all Member States and, in accordance with the principle of 
subsidiarity stated in Article 3b of the Treaty and with that of proportionality, that aim 
must  be  attained  at  Community  level;  whereas  this  Directive  confines  itself  to  the 
minimum action required and does not go beyond what is necessary for that purpose, 

(cid:216) new 

(29)  The obligation to transpose this Directive into national law should be confined to those 
provisions  which  represent  a  substantive  change  as  compared  with  the  earlier 
Directives.  The  obligation  to  transpose  the  provisions  which  are  substantially 
unchanged arises under the earlier Directives. 

(30)  This  Directive  should  be  without  prejudice  to  the  obligations  of  the  Member  States 
relating  to  the  time  limits  for  transposition  into  national  law  and  application  of  the 
Directives set out in Annex 1, Part B, 

46 

 
 
  
 
 
 
 
 
HAVE ADOPTED THIS DIRECTIVE: 

(cid:216) new 

TITLE I 

GENERAL PROVISIONS 

Article 1 

The  purpose  of  this  Directive  is  to  ensure  the  application  of  the  principle  of  equal 
opportunities  and  equal  treatment  of  men  and  women  in  matters  of  employment  and 
occupation. 

To that end, it contains provisions to implement the principle of equal treatment in relation to: 

(a) access to employment, including promotion, and to vocational training; 

(b) working conditions, including pay; 

(c) occupational social security schemes. 

It also contains provisions to ensure that such implementation is made more effective by the 
establishment of appropriate procedures. 

(cid:208) 76/207/EEC (adapted) 

Article 1 

1.  The  purpose  of  this  Directive  is  to  put  into  effect  in  the  Member  States  the  principle  of 
equal treatment for men and women as regards access to employment, including promotion, 
and to vocational training and as regards working conditions and on the conditions referred to 
in  paragraph  2,  social  security.  This  principle  is  referred  to  hereinafter  as  the  'principle  of 
equal treatment'. 

2. With a view to ensuring the progressive implementation of the principle of equal treatment 
in  matters  of  social  security,  the  Council,  acting  on  a  proposal  from  the  Commission,  will 
adopt provisions defining its substance, its scope and the arrangements for its application. 

47 

 
 
  
 
 
 
 
 
 
(cid:208) 86/378/EEC (adapted) 

Article 1 

The  object  of  this  Directive  is  to  implement,  in  occupational  social  security  schemes,  the 
principle of equal treatment for men and women, hereinafter referred to as «the principle of 
equal treatment». 

(cid:208) 97/80/EC (adapted) 

Article 1 

Aim 

The aim of this Directive shall be to ensure that the measures taken by the Member States to 
implement  the principle  of  equal  treatment  are  made  more  effective,  in  order  to  enable  all 
persons  who  consider  themselves  wronged  because  the  principle  of  equal  treatment  has not 
been applied to them to have their rights asserted by judicial process after possible recourse to 
other competent bodies. 

(cid:208) 2002/73/EC,  Article  1  pt.  2 
(adapted) 

Article 2 

2. ⌦ 1. ⌫ For the purposes of this Directive, the following definitions shall apply: 

(cid:208) 2002/73/EC,  Article  1  pt.  2 
(adapted) 

⌦ (a) ⌫ - 
of sex than another is, has been or would be treated in a comparable situation, ⌦ ; ⌫ 

direct discrimination: where one person is treated less favourably on grounds 

⌦ (b) ⌫ - 
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, ⌦ ; ⌫ 

48 

 
 
  
 
 
 
 
 
(cid:208) 97/80/EC, 
(adapted) 

Article 

2(2) 

– 

For purposes of the principle of equal treatment referred to in paragraph 1, indirect 
discrimination shall exist where an apparently neutral provision, criterion or practice 
disadvantages a substantially higher proportion of the members of one sex unless that 
provision,  criterion  or  practice  is  appropriate  and  necessary  and  can  be  justified  by 
objective factors unrelated to sex, 

(cid:208) 2002/73/EC,  Article  1  pt.  2 
(adapted) 

⌦ (c) ⌫ - 
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, ⌦ ; ⌫ 

⌦ (d) ⌫ - 
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  intimidating,  hostile,  degrading,  humiliating  or 
offensive environment. ⌦ ; ⌫ 

(e) pay: the ordinary basic or minimum wage or salary and any other consideration, whether 
in  cash  or  in  kind,  which  the  worker  receives  directly  or  indirectly,  in  respect  of  his 
employment from his employer; 

(cid:216) new  

(cid:208) 96/97/EC,  Article  1  pt.  1 
(adapted) 

⌦ (f) ⌫ 
1.  «occupational  social  security  schemes»  means  ⌦ : ⌫  schemes  not 
governed by Directive 79/7/EEC whose purpose is to provide workers, whether employees or 
self-employed,  in  an  undertaking  or  group  of  undertakings,  area  of  economic  activity, 
occupational  sector  or  group  of  sectors  with  benefits  intended  to  supplement  the  benefits 
provided by statutory social security schemes or to replace them, whether membership of such 
schemes is compulsory or optional. 

(cid:208) 2002/73/EC,  Article  1  pt.  2 
(adapted) 

3. ⌦ 2. For the purposes of this Directive, discrimination includes: ⌫  

⌦ (a) ⌫ 
harassment  and  sexual  harassment  within  the  meaning  of  this  Directive  shall 
be deemed to be discrimination on the grounds of sex and therefore prohibited. ⌦ , as well as 

49 

 
 
  
 
 
 
 
 
 
any less favourable treatment based on a person's rejection of or submission to such conduct; 
⌫  

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

-  4.  An  ⌦ (b) ⌫  instruction  to  discriminate  against  persons  on  grounds  of  sex.shall  be 
deemed to be discrimination within the meaning of this Directive.  

(cid:208) 96/97/EC,  Article  1  pt.  2 
(adapted) 

Article 3 

⌦ 1. ⌫  This  Directive  shall  apply  to  members  of  the  working  population,  including  self-
employed  persons,  persons  whose  activity  is  interrupted  by  illness,  maternity,  accident  or 
involuntary  unemployment  and  persons  seeking  employment,  ⌦ and ⌫  to  retired  and 
disabled workers ⌦ , ⌫ and to those claiming under them, in accordance with national law 
and/or practice. 

(cid:208) 2002/73/EC,  Article  1  pt.  2 
(adapted) 

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

⌦ 3. ⌫ This Directive shall also be without prejudice to the provisions of Council Directive 
96/34/EC  of  3  June  1996  on  the  framework  agreement  on  parental  leave  concluded  by 
UNICE, CEEP and the ETUC85 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)86. 

The principle of equal treatment shall not prejudice the provisions relating to the protection of 
women by reason of maternity. 

(cid:208) 86/378/EEC,  Article 
(adapted) 

5(2) 

85 
86 

OJ L 145, 19.6.1996, p. 4. 
OJ L 348, 28.11.1992, p. 1. 

50 

 
 
  
 
 
 
 
 
                                                 
(cid:208) 75/117/EEC, Article 1(adapted) 
(adapted) 
(cid:214) new 

⌦ TITLE II⌫ 

⌦ SPECIFIC PROVISIONS ⌫ 

⌦ Chapter 1 ⌫ 

⌦ Principle of equal pay ⌫ 

Article 4  

The  principle  of  equal  pay  for  men  and  women  outlined  in  Article  119  of  the  Treaty, 
hereinafter called «principle of equal pay», means, for ⌦ For ⌫ the same work or for work 
to which equal value is attributed, the elimination of all discrimination on grounds of sex with 
regard  to  all  aspects  and  conditions  of  remuneration  (cid:214) attributable  to  a  single  source (cid:213) 
⌦ shall be eliminated ⌫. 

In  particular,  where  a  job  classification  system  is  used  for  determining  pay,  it  must 
⌦ shall ⌫  be  based  on  the  same  criteria  for  both  men  an  women  and  so  drawn  up  as  to 
exclude any discrimination on grounds of sex. 

(cid:208) 75/117/EEC, 
(adapted) 

Article 

1 

(cid:208) 86/378/EEC (adapted) 

⌦ Chapter 2⌫ 

⌦ Principle of equal treatment in occupational social security schemes ⌫  

Article 5 

1.  Under  the  conditions  laid  down  in  the  following  provisions,  ⌦  Without  prejudice  to 
Article  4, ⌫  the  principle  of  equal  treatment  implies  that  there  shall  be  no  ⌦ direct  or 
indirect ⌫discrimination  on  the  basis  ⌦ grounds ⌫  of  sex  ⌦  in  occupational  social 
security  schemes,  in  particular ⌫either  directly  or  indirectly,  by  reference  in  particular  to 
marital or family status, especially as regards: 

-  ⌦ (a) ⌫ the scope of the ⌦ such ⌫ schemes and the conditions of access to them; 

51 

 
 
  
 
 
 
 
-  ⌦(b) ⌫ the obligation to contribute and the calculation of contributions; 

-  ⌦(c) ⌫ the calculation of benefits, including supplementary benefits due in respect 
of  a  spouse  or  dependants,  and  the  conditions  governing  the  duration  and  retention  of 
entitlement to benefits. 

(cid:208) 86/378/EEC, 
(adapted) 

Article 

4 

Article 6  

⌦ 1. ⌫ This Directive ⌦ Chapter ⌫ shall apply ⌦ applies ⌫ to: 

(a) 

occupational schemes which provide protection against the following risks: 

- ⌦ (i) ⌫  sickness, 

- ⌦ (ii) ⌫  invalidity, 

- ⌦ (iii) ⌫  old age, including early retirement, 

- ⌦ (iv) ⌫  industrial accidents and occupational diseases, 

- ⌦ (v) ⌫  unemployment; 

occupational schemes which provide for other social benefits, in cash or in kind, and 
(b) 
in  particular  survivors'  benefits  and  family  allowances,  if  such  benefits  are  accorded  to 
employed persons and thus constitute a consideration paid by the employer to the worker by 
reason of the latter's employment.  

(cid:216) new 

2. This Chapter also applies to pension schemes for a particular category of worker such as 
that  of  public  servants  if  the  benefits  payable  under  the  scheme  are  paid  by  reason  of  the 
employment  relationship  with  the  public  employer  in  that  they  are  directly  related  to  the 
period  of  service  and  their  amount  is  calculated  by  reference  to  the  public  servant’s  final 
salary.  The  fact  that  such  a  scheme  forms  part  of  a  general  statutory  scheme  is  without 
prejudice in this respect. 

(cid:208) 96/97/EC,  Article  1  pt.  1 
(adapted) 

2. ⌦ 1. ⌫ This Directive ⌦ Chapter ⌫ does not apply to: 

⌦Article 7⌫ 

52 

 
 
  
 
 
 
 
(a) 

(b) 

(c) 

(d) 

individual contracts for self-employed workers; 

schemes for self-employed workers having only one member; 

(cid:208) 96/97/EC, Article 1 pt. 1 

(cid:208) 96/97/EC,  Article  1  pt.  1 
(adapted) 
(cid:214) new 

insurance  contracts  to  which  the  employer  is  not  a  party,  in  the  case  of  salaried 
(cid:214) employed (cid:213) workers; 

optional  provisions  of  occupational  schemes  offered  to  participants  individually  to 
guarantee them: 

- ⌦ (i) ⌫  either additional benefits, or, 

- ⌦ (ii) or ⌫  a  choice  of  date  on  which  the  normal  benefits  for  self-employed 

workers will start, or a choice between several benefits; 

(e) 

occupational  schemes  in  so  far  as  benefits  are  financed  by  contributions  paid  by 
workers on a voluntary basis. 

3. ⌦ 2. ⌫ This Directive ⌦ Chapter ⌫ does not preclude an employer granting to persons 
who have already reached the retirement age for the purposes of granting a pension by virtue 
of an occupational scheme, but who have not yet reached the retirement age for the purposes 
of granting a statutory retirement pension, a pension supplement, the aim of which is to make 
equal or more nearly equal the overall amount of benefit paid to these persons in relation to 
the amount paid to persons of the other sex in the same situation who have already reached 
the  statutory  retirement  age,  until  the  persons  benefiting  from  the  supplement  reach  the 
statutory retirement age. 

(cid:208) 96/97/EC,  Article  1  pt.  3 
(adapted) 

Article 6 ⌦ 8 ⌫ 

1.  Provisions  contrary  to  the  principle  of  equal  treatment  shall  include  those  based  on  sex, 
either directly or indirectly, in particular by reference to marital or family status, for: 

(a) 

determining the persons who may participate in an occupational scheme; 

(cid:208) 96/97/EC, Article 1 pt. 3 

53 

 
 
  
 
 
 
 
 
(b) 

(c) 

(d) 

(e) 

(f) 

(g) 

(h) 

fixing the compulsory or optional nature of participation in an occupational scheme; 

laying  down  different  rules  as  regards  the  age  of  entry  into  the  scheme  or  the 
minimum period of employment or membership of the scheme required to obtain the 
benefits thereof; 

(cid:208) 96/97/EC,  Article  1  pt.  3 
(adapted) 

laying  down  different  rules,  except  as  provided  for  in  points  (h)  ⌦ , ⌫  and  (i) 
⌦ and  (j) ⌫,  for  the  reimbursement  of  contributions  when  a  worker  leaves  a 
scheme without having fulfilled the conditions guaranteeing a deferred right to long-
term benefits; 

setting different conditions for the granting of benefits or restricting such benefits to 
workers of one or other of the sexes; 

(cid:208) 96/97/EC, Article 1 pt. 3 

fixing different retirement ages; 

suspending the retention or acquisition of rights during periods of maternity leave or 
leave for family reasons which are granted by law or agreement and are paid by the 
employer; 

(cid:208) 96/97/EC,  Article  1  pt.  3 
(adapted) 

setting  different  levels  of  benefit,  except  in  so  far  as  may  be  necessary  to  take 
account of actuarial calculation factors which differ according to sex in the case of 
defined-contribution  schemes.  In  ⌦ ;  in ⌫  the  case  of  funded  defined-benefit 
schemes, certain elements (examples of which are annexed) may be unequal where 
the inequality of the amounts results from the effects of the use of actuarial factors 
differing according to sex at the time when the scheme's funding is implemented; 

(i) 

setting different levels for workers' contributions; 

(cid:208) 96/97/EC, Article 1 pt. 3 

⌦ (j) ⌫ 

setting different levels for employers' contributions, except: 

(cid:208) 96/97/EC,  Article  1  pt.  3 
(adapted) 

54 

 
 
  
 
 
 
 
 
 
-  ⌦ (i) ⌫ in the case of defined-contribution schemes if the aim is to equalise 
the  amount  of  the  final  benefits  or  to  make  them  more  nearly  equal  for  both 
sexes, 

-  ⌦ (ii) ⌫ in the case of funded defined-benefit schemes where the employer's 
contributions  are  intended  to  ensure  the  adequacy  of  the  funds  necessary  to 
cover the cost of the benefits defined; 

(j ) ⌦ (k) ⌫  laying  down  different  standards  or  standards  applicable  only  to  workers  of  a 
specified sex, except as provided for in points (h) ⌦ , ⌫ and (i) ⌦ and (j) ⌫ , as 
regards the guarantee or retention of entitlement to deferred benefits when a worker 
leaves a scheme. 

2. Where the granting of benefits within the scope of this Directive ⌦ Chapter ⌫ is left to 
the discretion of the scheme's management bodies, the latter must ⌦ shall ⌫ comply with 
the principle of equal treatment. 

(cid:208) 96/97/EC,  Article  1  pt.  4 
(adapted) 
(cid:214) new 

Article 8 ⌦ 9 ⌫ 

1. Member States shall take the necessary steps to ensure that the provisions of occupational 
schemes  for  self-employed  workers  contrary  to  the  principle  of  equal  treatment  are  revised 
with effect from 1 January 1993 at the latest (cid:214) or for Member States whose accession took 
place after that date, at the date that Directive 86/378/EEC as amended by Directive 96/97/EC 
became applicable in their territory (cid:213) . 

2. This ⌦ Chapter ⌫ Directive shall not preclude rights and obligations relating to a period 
of membership of an occupational scheme for self-employed workers prior to revision of that 
scheme from remaining subject to the provisions of the scheme in force during that period. 

(cid:208) 96/97/EC,  Article  1  pt.  5 
(adapted) 
(cid:214) new 

Article 9 ⌦ 10 ⌫ 

As  regards  ⌦ occupational ⌫  schemes  for  self-employed  workers,  Member  States  may 
defer compulsory application of the principle of equal treatment with regard to: 

(a) 

determination of pensionable age for the granting of old-age or retirement pensions, 
and the possible implications for other benefits: 

55 

 
 
  
 
 
 
 
- ⌦ (i) ⌫  either  until  the  date  on  which  such  equality  is  achieved  in  statutory 

schemes, 

- ⌦ (ii) ⌫  or, at the latest, until such equality is prescribed by a directive; 

(b) 

(c) 

survivors' pensions until Community law establishes the principle of equal treatment 
in statutory social security schemes in that regard; 

the application of the first subparagraph of point (i) of Article ⌦ 8(1)(i) in relation 
to the use ⌫ to take account of the different ⌦ of ⌫ actuarial calculation factors, 
at the latest until 1 January 1999 (cid:214) or for Member States whose accession took place 
after  that  date  until  the  date  that  Directive  86/378/EEC  as  amended  by  Directive 
96/97/EC became applicable in their territory (cid:213) . 

(cid:208) 96/97/EC, Article 2 (adapted) 

Article ⌦ 11 ⌫ 

implementing 

this  ⌦ Chapter ⌫  Directive,  as 

1.  Any  measure 
regards  paid 
⌦ employed ⌫ workers, must ⌦ shall ⌫ cover all benefits ⌦ under occupational social 
security  schemes ⌫  derived  from  periods  of  employment  subsequent  to  17  May  1990  and 
shall  apply  retroactively  to  that  date,  without  prejudice  to  workers  or  those  claiming  under 
them  who  have,  before  that  date,  initiated  legal  proceedings  or  raised  an  equivalent  claim 
under  national  law.  In  that  event,  the  implementation  measures  must  ⌦ shall ⌫  apply 
retroactively to 8 April 1976 and must ⌦ shall ⌫ cover all the benefits derived from periods 
of employment after that date. For Member States which acceded to the Community after 8 
April 1976, and before 17 May 1990, that date shall be replaced by the date on which Article 
119 ⌦ 141 ⌫ of the Treaty became applicable on their territory. 

2. The second sentence of paragraph 1 shall not prevent national rules relating to time limits 
for bringing actions under national law from being relied on against workers or those claiming 
under them who initiated legal proceedings or raise ⌦ raised ⌫ an equivalent claim under 
national law before 17 May 1990, provided that they are not less favourable for that type of 
action than for similar actions of a domestic nature and that they do not render the exercise of 
Community law impossible in practice. 

3.  For  Member  States  whose  accession  took  place  after  17  May  1990  and  who  were  on  1 
January 1994 Contracting Parties to the Agreement on the European Economic Area, the date 
of 17 May 1990 in the first sentence of paragraph 1 of this Article is replaced by 1 January 
1994. 

4. For other Member States whose accession took place after 17 May 1990 the date of 17 May 
1990 in paragraph 1 and 2 is replaced by the date on which Article 141 of the Treaty became 
applicable in their territory.  

(cid:216) new 

56 

 
 
  
 
 
 
 
(cid:208) 96/97/EC,  Article  1  pt.  6 
(adapted) 

Article 9a ⌦ 12 ⌫ 

Where men and women may claim a flexible pensionable age under the same conditions, this 
shall not be deemed to be incompatible with this Directive ⌦ Chapter ⌫ . 

(cid:208) 2002/73/EC,  Article  1  pt.  2 
(adapted) 

⌦ Chapter 3⌫ 

⌦ The principle of equal treatment for men and women as regards access to 
employment, vocational training and promotion and working conditions ⌫  

Article 2  

1. For the purposes  of  the  following  provisions, the principle  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. 

(cid:208) 97/80/EC, 
(adapted) 

Article 

2(1) 

Definitions 

1.  For  the  purposes  of  this  Directive,  the  principle  of  equal  treatment  shall  mean  that  there 
shall be no discrimination whatsoever based on sex, either directly or indirectly. 

(cid:208) 2002/73/EC,  Article  1  pt.  3 
(adapted) 

Article 3 ⌦ 13 ⌫ 

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

57 

 
 
  
 
 
 
 
 
(cid:208) 2002/73/EC, Article 1 pt. 3 

(a) 

(b) 

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

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

(c) 

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

(cid:208) 2002/73/EC,  Article  1  pt.  3 
(adapted) 

(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. 

(cid:208) 2002/73/EC, Article 1 pt. 3 

(cid:208) 2002/73/EC,  Article  1  pt.  2 
(adapted) 

6.  ⌦ 2. ⌫  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 ⌦ its ⌫ objective is legitimate and the requirement is proportionate. 

(cid:208) 76/207/EEC,  Article 
(adapted) 

9(2) 

2.  ⌦ 3. ⌫  Member  States  shall  periodically  assess  the  occupational  activities  referred  to 
⌦ in  paragraph  2 ⌫  Article  2(2)  in  order  to  decide,  in  the  light  of  social  developments, 
whether there is justification for maintaining the exclusions concerned. They shall notify the 
Commission of the results of this assessment. 

58 

 
 
  
 
 
 
 
 
 
(cid:208) 2002/73/EC,  Article  1  pt.  2 
(adapted) 

⌦Article 14 ⌫ 

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 ⌦, in 
working life ⌫. 

(cid:208) 2002/73/EC,  Article  1  pt.  2 
(adapted)  

⌦Article 15⌫ 

⌦ 1. ⌫  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. 

⌦ 2. ⌫  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 ⌦ have been ⌫ be entitled during her absence. 

(cid:208) 2002/73/EC,  Article  1  pt.  2 
(adapted)  

⌦ Article 16 ⌫ 

⌦ This Directive ⌫ 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 exercising 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. 

59 

 
 
  
 
 
 
 
(cid:208) 2002/73/EC,  Article  1  pt.  5 
(adapted) 

⌦ TITLE III ⌫ 

⌦ HORIZONTAL PROVISIONS ⌫ 

⌦ Chapter 1 ⌫ 

⌦ Defence of rights ⌫ 

⌦ Section 1 ⌫ 

⌦ Remedies ⌫ 

Article 6 ⌦ 17 ⌫  

1.  Member  States  shall  ensure  that ⌦ ,after  possible  recourse  to  other  competent 
authorities, ⌫judicial and/or  administrative  procedures,  including  where  they  deem  it 
appropriate  conciliation  procedures,  for  the  enforcement  of  obligations  under  this  Directive 
are available to all persons who consider themselves wronged by failure to apply the principle 
of equal treatment to them, even after the relationship in which the discrimination is alleged to 
have occurred has ended. 

3. ⌦ 2. ⌫ 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 
interest in ensuring that the provisions of this Directive are complied with, may engage, either 
on behalf or in support of the complainants, with his or her approval, in any judicial and/or 
administrative procedure provided for the enforcement of obligations under this Directive. 

4. ⌦ 3. ⌫  Paragraphs  1  and  3 ⌦ 2 ⌫  are  without  prejudice  to  national  rules  relating  to 
time limits for bringing actions as regards the principle of equal treatment. 

(cid:208) 75/117/EEC (adapted) 

Article 2 

Member  States  shall  introduce  into  their  national  legal  systems  such  measures  as  are 
necessary to enable all employees who consider themselves wronged by failure to apply the 
principle  of  equal  pay  to  pursue  their  claims  by  judicial  process  after  possible  recourse  to 
other competent authorities. 

60 

 
 
  
 
 
 
(cid:208) 86/378/EEC (adapted) 

Article 10 

Member  States  shall  introduce  into  their  national  legal  systems  such  measures  as  are 
necessary  to  enable  all  persons  who  consider  themselves  injured  by  failure  to  apply  the 
principle of equal treatment to pursue their claims before the courts, possibly after bringing 
the matters before other competent authorities. 

(cid:208) 2002/73/EC,  Article  1  pt.  5 
(adapted) 

⌦Article 18⌫ 

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

(cid:208) 97/80/EC, Article 4 (adapted) 

⌦ Section 2 ⌫ 

⌦ Burden of proof ⌫ 

Article 19  

Burden of proof 

1. Member States shall take such measures as are necessary, in accordance with their 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. 

2. This Directive ⌦ Paragraph 1 ⌫ shall not prevent Member States from introducing rules 
of evidence which are more favourable to plaintiffs. 

61 

 
 
  
 
 
 
 
3.  Member  States  need  not  apply  paragraph  1  to  proceedings  in  which  it  is  for  the  court  or 
competent body to investigate the facts of the case. 

(cid:208) 97/80/EC, Article 4 

(cid:208) 97/80/EC, Article 3 (adapted) 

Article 20  

Scope 

1. This Directive ⌦Article 19 ⌫ shall ⌦ also ⌫ apply to: 

(a) 

the  situations  covered  by  Article  119  ⌦ 141 ⌫  of  the  Treaty  and  by  Directives 
75/117/EEC, 76/207/EEC and, insofar as discrimination based on sex is concerned, 
⌦ by Directives ⌫ 92/85/EEC and 96/34/EC; 

(b) 

any civil or administrative procedure concerning the public or  private  sector which 
provides for means of redress under national law pursuant to the measures referred to 
in (a) with the exception of out-of-court procedures of a voluntary nature or provided 
for in national law. 

(cid:208) 97/80/EC, Article 3 

2.  This  Directive  ⌦  Chapter ⌫  shall  not  apply  to  criminal  procedures,  unless  otherwise 
provided by the Member States. 

(cid:208) 97/80/EC, Article 3 (adapted) 

(cid:208) 2002/73/EC,  Article  1  pt.  7 
(adapted) 

⌦ Chapter 2 ⌫ 

⌦ Bodies for the promotion of equal treatment – social dialogue ⌫ 

Article 8a ⌦ 21 ⌫ 

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  charged 

62 

 
 
  
 
 
 
 
 
 
⌦ with responsibility ⌫ at national level with ⌦ for ⌫ the defence of human rights or the 
safeguard of individuals' rights. 

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

(a) 

(b) 

(c) 

without prejudice  to  the  right  of victims  and  of  associations,  organisations or other 
legal  entities  referred  to  in  Article  6(3) ⌦ 17 (2) ⌫,  providing  independent 
assistance  to  victims  of  discrimination  in  pursuing  their  complaints  about 
discrimination; 

(cid:208) 2002/73/EC, Article 1 pt. 7 

conducting independent surveys concerning discrimination; 

publishing independent reports and making recommendations on any issue relating to 
such discrimination. 

(cid:208) 2002/73/EC,  Article  1  pt.  7 
(adapted) 

Article 8b ⌦ 22 ⌫ 

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

(cid:208) 2002/73/EC, Article 1 pt. 7 

(cid:208) 2002/73/EC,  Article  1  pt.  7 
(adapted) 

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

63 

 
 
  
 
 
 
 
 
(cid:208) 2002/73/EC, Article 1 pt. 7 

3.  Member  States  shall,  in  accordance  with  national  law,  collective  agreements  or  practice, 
encourage employers to promote equal treatment for men and women in the workplace in a 
planned and systematic way. 

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

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

(cid:208) 2002/73/EC,  Article  1  pt.  7 
(adapted) 

Article 8c ⌦ 23 ⌫ 

Member  States  shall  encourage  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. 

(cid:208) 2002/73/EC,  Article  1  pt.  3 
(adapted) 

⌦ TITLE IV ⌫ 

⌦ IMPLEMENTATION ⌫ 

⌦ Article 24 ⌫ 

2. To that end, Member States shall take the ⌦ all ⌫ necessary measures to ensure that: 

(a) 

(b) 

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

any  provisions  contrary  to  the  principle  of  equal  treatment  which  are  included  in 
contracts or collective agreements, ⌦ wage scales, wage agreements, staff rules of 
undertakings, ⌫  internal  rules  of  undertakings  or  rules  governing  the  independent 
employers' 
occupations 
organisations ⌦, individual  contracts  of  employment or  any  other  arrangements⌫ 
shall be, or may be declared, null and void or are amended. ⌦ ; ⌫ 

professions 

workers' 

and 

and 

and 

64 

 
 
  
 
 
 
 
(cid:208) 86/378/EEC (adapted) 

Member States shall take all necessary steps to ensure that: 

Article 7 

(a) 
provisions contrary to the principle of equal treatment in legally compulsory collective 
agreements,  staff  rules  of  undertakings  or  any  other  arrangements  relating  to  occupational 
schemes are null and void, or may be declared null and void or amended;  

(b)  ⌦ (c) ⌫  schemes  containing  such  provisions  may  not  be  approved  or  extended  by 

administrative measures.  

(cid:208) 75/117/EEC (adapted) 

Article 3 

Member  States  shall  abolish  all  discrimination  between  men  and  women  arising  from  laws, 
regulations or administrative provisions which is contrary to the principle of equal pay. 

(cid:208) 75/117/EEC (adapted) 

Article 4 

Member  States  shall  take  the  necessary  measures  to  ensure  that  provisions  appearing  in 
collective agreements, wage scales, wage agreements or individual contracts or employment 
which are contrary to the principle of equal pay shall be, or may be declared, null and void or 
may be amended.  

(cid:208) 75/117/EEC (adapted) 

Article 6 

Member States shall, in accordance with their national circumstances and legal systems, take 
the measures necessary to ensure that the principle of equal pay is applied. They shall see that 
effective means are available to take care that this principle is observed. 

65 

 
 
  
 
 
 
 
 
(cid:208) 2002/73/EC,  Article  1  pt.  6 
(adapted)  

Article 7 ⌦ 25 ⌫  

Member  States  shall  introduce  into  their  national  legal  systems  such  measures  as  are 
necessary to protect employees, including those who are employees' representatives provided 
for  by  national  laws  and/or  practices,  against  dismissal  or  other  adverse  treatment  by  the 
employer  as  a  reaction  to  a  complaint  within  the  undertaking  or  to  any  legal  proceedings 
aimed at enforcing compliance with the principle of equal treatment. 

(cid:208) 86/378/EEC (adapted) 

Article 11 

Member States shall take all the necessary steps to protect worker against dismissal where this 
constitutes a response on the part of the employer to a complaint made at undertaking level or 
to  the  institution  of  legal  proceedings  aimed  at  enforcing  compliance  with  the  principle  of 
equal treatment. 

(cid:208) 75/117/EEC (adapted) 

Article 5 

Member  States  shall  take  the  necessary  measures  to  protect  employees  against  dismissal  by 
the employer as a reaction to a complaint within the undertaking or to any legal proceedings 
aimed at enforcing compliance with the principle of equal pay. 

(cid:208) 2002/73/EC,  Article  1  pt.  7 
(adapted) 
(cid:214) new 

Article 8d ⌦ 26 ⌫ 

Member  States  shall  lay  down  the  rules  on  sanctions  applicable  to  infringements  of  the 
national provisions adopted pursuant to this Directive, and shall take all measures necessary 
to  ensure  that  they  are  applied.  The  sanctions,  which  may  comprise  the  payment  of 
compensation  to  the  victim,  must  be  effective,  proportionate  and  dissuasive.  The  Member 
States  shall  notify  those  provisions  to  the  Commission  by  5  October  2005  (cid:214) the  date 
specified  in  Article  33 (cid:213)at  the  latest  and  shall  notify  it  without  delay  of  any  subsequent 
amendment affecting them.  

66 

 
 
  
 
 
 
 
 
(cid:208) 2002/73/EC,  Article  1  pt.  2 
(adapted) 

⌦ Article 27 ⌫ 

5. Member States shall encourage, in accordance with 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 
harassment at the workplace. 

(cid:208) 97/80/EC, Article 6 (adapted) 

Article ⌦ 28 ⌫ 

Non-Regression 

Implementation  of  this  Directive  shall  under  no  circumstances  be  sufficient  grounds  for  a 
reduction in the general level of protection of workers in the areas to which it applies, without 
prejudice  to  the  Member  States'  right  to  respond  to  changes  in  the  situation  by  introducing 
laws,  regulations  and  administrative  provisions  which  differ  from  those  in  force  on  the 
notification  of  this  Directive,  provided  that  the  minimum  requirements ⌦ provisions ⌫  of 
this Directive are complied with. 

(cid:208) 2002/73/EC,  Article  1  pt.  7 
(adapted) 

Article 8e  

1.  Member  States  may  introduce  or  maintain  provisions  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. 

67 

 
 
  
 
 
 
 
(cid:208) 2002/73/EC  Article  1  pt.  1 
(adapted) 

⌦ Article 29 ⌫ 

1a. Member States shall actively take into account the objective of equality between men and 
women  when  formulating  and  implementing  laws,  regulations,  administrative  provisions, 
policies and activities in the areas referred to in paragraph 1 ⌦ this Directive⌫. 

(cid:208) 97/80/EC, Article 5 (adapted) 

Article ⌦ 30 ⌫ 

Information 

Member States shall ensure that measures taken pursuant to this Directive, together with the 
provisions  already  in  force,  are  brought  to  the  attention  of  all  the  persons  concerned  by  all 
appropriate means ⌦, for example at the workplace ⌫.  

(cid:208) 76/207/EEC (adapted) 

Article 8 

Member States shall take care that the provisions adopted pursuant to this Directive, together 
with the relevant provisions already in force, are brought to the attention of employees by all 
appropriate means, for example at their place of employment. 

(cid:208) 75/117/EEC (adapted) 

Article 7 

Member States shall take care that the provisions adopted pursuant to this Directive, together 
with the relevant provisions already in force, are brought to the attention of employees by all 
appropriate means, for example at their place of employment. 

68 

 
 
  
 
 
 
 
 
(cid:208) 2002/73/EC, 
(adapted) 

Article 

2 

⌦ TITLE V ⌫ 

⌦ FINAL PROVISIONS ⌫ 

Article⌦ 31 ⌫ 

2.  ⌦ 1.  By  ……  at  the  latest,  the  ⌫  The  Member  States  shall  communicate  to  the 
Commission,  within  three years  of  the entry into force of  this Directive, all the information 
necessary for the Commission to draw up a report to the European Parliament and the Council 
on the application of this Directive.  

3⌦2. ⌫Without  prejudice  to  paragraph  2  ⌦ 1 ⌫,  Member  States  shall  communicate  to 
the Commission, every four years, the texts of laws, regulations and administrative provisions 
any  measures  adopted  pursuant  to  Article  141(4)  of  the  Treaty,  as  well  as  reports  on  these 
measures  and  their  implementation.  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  N°  28  annexed  to  the  Final  Act  of  the  Treaty  of 
Amsterdam. 

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

(cid:208) 97/80/EC, Article 7 (adapted) 

(2)  Member  States  shall  communicate  to  the  Commission,  at  the  latest  two  years  after  the 
entry into force of this Directive, all information necessary to enable the Commission to draw 
up a report on the application of this Directive. 

(cid:208) 96/97/EC,  Article  3  pt.  2 
(adapted) 

2.  Member  States  shall  communicate  to  the  Commission  at  the  latest  five  years  after 
notification of this Directive all information necessary to enable the Commission to draw up a 
report on the application of this Directive for submission to the Council. 

(cid:208) 86/378/EEC, 
(adapted) 

Article 

12 

69 

 
 
  
 
 
 
 
 
(cid:208) 76/207/EEC (adapted) 

Article 10 

Within two years following expiry of the 30-month period laid down in the first subparagraph 
of Article 9(1), Member States shall forward all necessary information to the Commission to 
enable it to draw up a report on the application of this Directive for submission to the Council. 

(cid:208) 75/117/EEC (adapted) 

Article 9 

Within two years of the expiry of the one-year period referred to in Article 8, Member States 
shall forward all necessary information to the Commission to enable it to draw up a report on 
the application of this Directive for submission to the Council. 

(cid:216) new 

Article 32 

By 30 June 2008 at the latest, the Commission shall review the operation of this Directive and 
if appropriate, propose any amendments it deems necessary. 

(cid:216) new 

Article 33 

Member  States  shall  bring  into  force  the  laws,  regulations  and  administrative  provisions 
necessary to comply with this Directive by …at the latest or shall ensure, by that date at the 
latest,  that  management  and  labour  introduce  the  requisite  provisions  by  way  of  agreement. 
Member  States  shall  take  all  necessary  steps  to  be  able  to  guarantee  the  results  imposed  by 
this  Directive.  They  shall  forthwith  communicate  to  the  Commission  the  texts  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 reference on the occasion of their official publication. They shall 
also  include  a  statement  that  references  in  existing  laws,  regulations  and  administrative 
provisions to the Directives repealed by this Directive shall be construed as references to this 
Directive.  Member  States  shall  determine  how  such  reference  is  to  be  made  and  how  that 
statement is to be formulated. 

70 

 
 
  
 
 
 
 
 
Member  States  shall  communicate  to  the  Commission  the  text  of  the  main  provisions  of 
national law which they adopt in the field covered by this Directive 

(cid:208) 97/80/EC (adapted) 

Article 7 

Implementation 

The Member States shall bring into force the laws, regulations and administrative provisions 
necessary for them to comply with this Directive by 1 January 2001.They shall immediately 
inform the Commission thereof. 

When the Member States adopt those measures they shall contain a reference to this Directive 
or shall be accompanied by such a reference on the occasion of their official publication. The 
methods of making such references shall be laid down by the Member States.  

As regards the United Kingdom of Great Britain and Northern Ireland, the date of 1 January 
2001 in paragraph 1 shall be replaced by 22 July 2001. 

(cid:208) 98/52/EC, Article 2 (adapted) 

(cid:208) 86/378/EEC (adapted) 

Article 12 

1. Member States shall bring into force such laws, regulations and administrative provisions 
as  are  necessary  in  order  to  comply  with  this  Directive  at  the  latest  three  years  after 
notification thereof87. They shall immediately inform the Commission thereof. 

(cid:208) 76/207/EEC (adapted) 

Article 9 

1.  Member  States  shall  put  into  force  the  laws,  regulations  and  administrative  provisions 
necessary in order to comply with this Directive within 30 months of its notification and shall 
immediately inform the Commission thereof. 

87 

This Directive was notified to the Member States on 30 July 1986. 

71 

 
 
  
 
 
 
 
 
                                                 
However,  as  regards  the  first  part  of  Article  3(2)(c)  and  the  first  part  of  Article  5(2)(c), 
Member States shall carry out a first examination and if necessary a first revision of the laws, 
regulations and administrative provisions referred to therein within four years of notification 
of this Directive. 

3.  Member  States  shall  also  communicate  to  the  Commission  the  texts  of  laws,  regulations 
and administrative provisions which they adopt in the field covered by this Directive. 

(cid:208) 75/117/EEC (adapted) 

Article 8 

1.  Member  States  shall  put  into  force  the  laws,  regulations  and  administrative  provisions 
necessary in order to comply with this Directive within one year of its notification and shall 
immediately inform the Commission thereof.  

2. Member States shall communicate to the Commission the texts of the laws, regulations and 
administrative provisions which they adopt in the field covered by this Directive. 

(cid:216) new 

Article 34 

1.  Directives  75/117/EEC,  76/207/EEC,  86/378/EEC  and  97/80/EC,  as  amended  by  the 
Directives  in  Annex  1,  Part  A,  are  repealed  with  effect  from  the  date  set  out  in  the  first 
paragraph of Article 33 of this Directive, without prejudice to the obligations of the Member 
States  relating  to  the  time-limits  for  transposition  into  national  law  and  application  of  the 
Directives set out in Annex 1, Part B. 

2. References to the repealed Directives shall be construed as references to this Directive and 
shall be read in accordance with the correlation table in Annex 2. 

(cid:216) new 

Article 35 

This Directive shall enter into force on the [twentieth] day following that of its publication in 
the Official Journal of the European Union. 

72 

 
 
  
 
 
 
 
(cid:208) . 

Article 36  

This Directive is addressed to the Member States. 

Done at Brussels,  

For the European Parliament 
The President 

For the Council 
The President 

73 

 
 
  
 
 
 
(cid:208) 96/97/EC,  Article  1  pt.  7 
(adapted) 

ANNEX  

Examples of elements which may be unequal, in respect of funded defined-benefit schemes, 
as referred to in Article 6 (h): 

– 

– 

– 

– 

conversion into a capital sum of part of a periodic pension, 

transfer of pension rights, 

a reversionary pension payable to a dependant in return for the surrender of part of a 
pension, 

a reduced pension where the worker opts to take early retirement 

74 

 
 
  
 
 
 
(cid:207) 

ANNEX 1 

Part A 

Repealed Directives with their successive amendments 
(referred to in Article 34(1)) 

Council Directive 75/117/EEC  

OJ L 45, 19.2.1975 

Council Directive 76/207/EEC 

OJ L 39, 14.2.1976 

Directive  2002/73/EC  of 
Parliament and of the Council 

the  European 

OJ L 269, 2.10.2002 

Council Directive 86/378/EEC  

OJ L 225, 12.8.1986 

Directive 96/97/EC 

OJ L 46, 17.2.1997 

Council Directive 97/80/EC 

OJ L 14, 20.1.1998 

Directive 98/52/EC 

OJ L 205, 22.7.1998 

Part B 

List of time-limits for transposition into national law and application dates  
(referred to in Article 34(1)) 

Directive 

Time-limit 
transposition 

for 

Date of application  

Directive 75/117/EEC 

19.2.1976 

Directive 76/207/EEC 

14.8.1978 

Directive 86/378/EEC 

1.1.1993 

Directive 96/97/EC 

1.7.1997  

17.5.1990  in  relation  to 
paid  workers,  except  for 
those  workers  or 
those 
claiming  under  them  who 
that  date 
had  before 
initiated  legal  proceeding 
or  raised  an  equivalent 

75 

 
 
  
 
 
 
 
 
 
 
 
claim under national law.  

Article  8  of  Directive 
86/378/EEC  as  amended 
by  Directive  96/97/EC  - 
1.1.1993 at the latest. 

Article 6(1)(i) , first indent 
of  Directive  86/378/EEC 
as  inserted  by  Directive 
96/97/EC  -1.1.1999  at  the 
latest.  

regards 

As 
the  United 
Kingdom  of  Great  Britain 
and  Northern 
Ireland 
22.7.2001 

Directive 97/80/EC 

1.1.2001 

Directive 98/52/EC 

22.7.2001 

Directive 2002/73/EC 

5.10.2005 

76 

 
 
  
 
 
 
ANNEX 2 
Correlation Table 

Directive 
75/117 

Directive 
76/207 

Directive 
86/378 

Directive 
97/80 

This 
Directive 

Article 1 (1) 

Article 1 

Article 1 

Article 1  

- 

- 

- 

- 

- 

- 

- 

- 

- 

- 

- 

Article 1 

- 

- 

- 

- 

- 

- 

- 

Article 1(2) 

Article  2(2), 
first indent 

Article  2(2), 
second indent 

Article  2(2), 
third 
and 
fourth indents 

- 

- 

- 

- 

- 

- 

- 

Article 
2(1) 

Article 2(3) & 
(4) 

- 

- 

Article 3 

Article  2(7), 
first 
subparagraph 

Article 
5(2) 

Article  2(7), 
fourth 
subparagraph, 
first sentence 

- 

- 

Article 
5(1) 

Article 4 

- 

Article 

77 

- 

- 

- 

Article  2(1), 
first indent 

Article 2(2)  Article  2(1), 

- 

- 

- 

- 

- 

- 

- 

- 

- 

- 

- 

second 
indent 

Article  2(1), 
third 
and 
fourth 
indents  

Article  2(1), 
fifth indent 

Article  2(1), 
sixth indent 

Article 2(2) 

Article 3(1) 

Article 3(2) 

Article 3(3) 

Article 4 

Article 5 

Article 6(1) 

Article 6(2) 

Article 7(1) 

 
 
  
 
 
 
 
- 

- 

- 

- 

- 

- 

- 

- 

- 

- 

- 

- 

- 

- 

- 

- 

- 

- 

- 

2(2) 

Article 
2(3) 

Article 6 

Article 8 

Article 9  

- 

Article 9a 

- 

- 

- 

- 

- 

- 

Article 7(2) 

Article 8 

Article 9 

Article 10  

Article 11 

Article 12 

Article 2(1)  Article 

- 

- 

- 

- 

- 

- 

- 

Articles  2(1) 
& 3(1) 

Article 2(6) 

Article 9(2) 

Article 2(8) 

Article  2(7), 
third 
subparagraph 

Article  2(7), 
second 
subparagraph 

Article  2(7), 
fourth 
subparagraph, 
second 
and 
third sentence 

13(1) 

Article 
13(2) 

Article 
13(3) 

Article 14 

Article 
15(1)  

Article 
15(2) 

Article 16 

Article 
17(1) 

Article 
17(2) 

Article 
17(3) 

Article 18 

- 

- 

- 

- 

- 

- 

- 

- 

- 

Article 2 

Article 6(1) 

Article 10 

- 

 - 

- 

- 

- 

Article 6(3)  

Article 6(4) 

Article 6(2) 

- 

- 

- 

- 

- 

Article 4 

Article 19 

78 

 
 
  
 
- 

- 

- 

- 

- 

Article 8a 

Article 8b 

Article 8c 

- 

- 

- 

- 

Articles 3 & 
6 

Article 
(2)(a) 

3 

- 

Article 4 

Article 
(2)(b) 

3 

Article 
7(a) 

- 

- 

Article 
7(b) 

Article 5 

Article 7 

Article 11 

Article 6 

- 

- 

- 

- 

- 

Article 8d 

Article 2(5) 

Article 8e (1) 

Article 8e (2) 

Article 1 (1a) 

Article 7 

Article 8 

Article 9 

Article 10  

- 

- 

- 

- 

- 

- 

Article 3 

Article 20  

- 

- 

- 

- 

- 

- 

- 

- 

- 

- 

Article 21 

Article 22 

Article 23 

Article 24(a) 

Article 
24(b) 

Article 24(c) 

Article 25 

- 

Article 26 

Article 27 

- 

Article 6 

Article 28 

- 

Article 29 

Article 5 

Article 30 

Article 
12(2) 

Article 
7, 
fourth  sub-
paragraph  

Article 31 

- 

- 

- 

- 

Article 8  

- 

- 

- 

Article  9(1), 
first 
subparagraph
and  9(2)  & 
(3) 

Article  9(1), 
second 
subparagraph 

- 

- 

Article 
12(1) 

Article 
7, 
first,  second 
and 
third 
sub-
paragraphs 

- 

- 

- 

- 

- 

- 

79 

Article 32 

Article 33 

- 

Article 34 

Article 35 

 
 
  
 
 
 
 
- 

- 

- 

- 

- 

Annex 

- 

- 

Article 36 

- 

80