Opinion of the European Economic and Social Committee on the Proposal for a Council Directive implementing the principle of equal treatment between women and men in the access to and supply of goods and services (COM(2003) 657 final – 2003/0265 (CNS))
Date: 2004-06-03
Institutions: European Economic and Social Committee
Subjects: European social policy, anti-discriminatory measure, equal treatment, gender equality, goods and services, insurance

28.9.2004

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Official Journal of the European Union

C 241/41

8.6 With respect to regional integration the EU cooperation
programmes, in particular those that concern regional integra-
tion with the developing countries and LDCs, must therefore
place special emphasis on the various dimensions of sustain-

ability, i.e. economic, social and environmental. The EESC can
contribute greatly to the success of these efforts, since it is the
EU body with the most appropriate remit to address these
questions within civil society.

Brussels, 2 June 2004.

The President

of the European Economic and Social Committee

Roger BRIESCH

Opinion of the European Economic and Social Committee on the ‘Proposal for a Council Directive
implementing the principle of equal treatment between women and men in the access to and
supply of goods and services’

(COM(2003) 657 final – 2003/0265(CNS))

(2004/C 241/13)

On 31 March 2004 the European Economic and Social Committee decided to draw up an own-initiative
opinion, under Article 29(2) of its Rules of Procedure, on the ‘Proposal for a Council Directive imple-
menting the principle of equal treatment between women and men in the access to and supply of goods
and services’.

The Section for Employment, Social Affairs and Citizenship, which was responsible for preparing the
Committee's work on the subject, adopted its opinion on 5 May 2004. The rapporteur was Mrs Carroll.

At its 409th plenary session of 2/3 June 2004 (meeting of 3 June 2004), the European Economic and
Social Committee adopted the following opinion by 120 votes to 49 with 15 abstentions:

reasons of pregnancy and maternity. Harassment and sexual
harassment, as defined in the proposal, are deemed to be discri-
mination on grounds of sex and,
therefore, prohibited. A
person's rejection of, or submission to, such conduct may not
be used as a basis for a decision affecting that person. Incite-
ment
to discriminate is also deemed to be discrimination
within the meaning of the Directive.

1. Legal basis, content and scope of the proposal

1.1
The Commission's proposal is based on Article 13(1) of
the Treaty establishing the European Community, which has
already been the basis for the Directives combating discrimina-
tion in employment or occupation on grounds of religion or
belief, disability, age or sexual orientation (1) and, in relation to
both employment and occupation and access to and the supply
of goods and services, on grounds of racial or ethnic origin (2).

1.2
The proposed Directive lays down a framework for
combating discrimination based on sex in access to and the
supply of goods and services, with a view to putting into effect
in the Member States the principle of equal treatment between
men and women. It has no retrospective effect.

Direct and indirect discrimination based on sex are
1.2.1
prohibited, including less favourable treatment of women for

(1) Council Directive 2000/78/EC of 27 November 2000 establishing
a general framework for equal treatment in employment and occu-
pation.

(2) Council Directive 2000/43/EC of 29 June 2000 implementing the
principle of equal treatment between persons irrespective of racial
or ethnic origin.

1.3
The scope of the proposal is wide, although there are
certain significant limitations. Broadly it covers access to and
supply of goods and services available to the public, including
housing. It covers both the public and private sectors, including
public bodies. Transactions of a purely private nature are
excluded, for example the renting of a holiday home to a
family member or the letting of a room in a private house.

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1.3.1
available to the public:

The Commission gives examples of goods and services

— access to premises into which the public are permitted to

enter;

— all types of housing, including rented and hotel accommo-

dation;

— services such as banking,

insurance and other financial

services;

— transport;

— the services of any profession or trade (1).

The range of services involved is wide.

1.3.2
Important
areas include pensions, life and health insurance, general insur-
ance and access to finance and housing.

1.3.3
The use of sex as a factor in the calculation of
premiums and benefits for the purpose of insurance and related
financial services will be prohibited from the date on which the
Directive comes into force. Member States are permitted,
however, to defer implementation of this provision for up to a
further six years. If they do so, they must immediately inform
the Commission and are required to compile, publish and regu-
larly update comprehensive tables on the mortality and life
expectancy of women and men.

1.4
There are certain exclusions. The proposed Directive
would not preclude differences related to goods or services for
which men and women are not in a comparable situation
because goods or services are intended exclusively or primarily
for the members of one sex or to skills which are practised
differently for each sex. Examples include single-sex sessions in
a swimming pool and private membership clubs.

1.5
Specifically excluded from the scope of the Directive are
education and the content of media and advertising, in particu-
lar advertising and television advertising, as defined in Article
1(b) of Council Directive 89/552/EEC.

1.6

Positive action is permitted under the Directive.

1.7
The Directive contains provisions on minimum rights
and remedies, enforcement and monitoring common to the
two directives referred to in paragraph 1.1.

2.2.1
The Committee is concerned that the definition of
‘services’ is contained only in Article 10 of the Preamble to the
draft Directive. To avoid ambiguity, given the wide range of
public and other services available to the public (for example,
those provided by NGOs), the term ‘services’ should be defined
clearly in the text. The Committee favours a broad definition.

2.3
The exclusion of education from the scope of the Direc-
tive is regrettable. However, it is recognised that there may be
problems of Community competence in this area. Education,
however, is a key factor in equality between women and men
and can result in boys and girls following traditional career
paths, thus affecting their future in a significant way. There are
concerns in some Member States concerning limitations on
choice and lack of adequate guidance in education, which have
ongoing and significant implications both for the individuals
concerned, for attainment of social inclusion targets and for the
competitiveness of the EU itself.

The Commission has

2.3.1
stated that only privately-
provided education would come within the scope of services, if
this sector was not excluded from the Directive. This could
have resulted in the application of different standards in the
implementation of the principle of equal treatment.

The Member States have already begun to take action
2.3.2
the Lisbon Agenda. The
in the area of education under
Committee, therefore, urges the Commission to do whatever is
within its powers, to encourage the Member States to ensure
that there is equality of access to and provision of educational
opportunities for both boys and girls.

The existing equal treatment Directive covers access to
2.3.3
vocational training, including third-level education of a voca-
tional nature. This is, however, insufficient. The means of bene-
fiting from third-level education, whether in university or a
vocational institution, are acquired at primary and secondary
level.

2. General comments

2.1
The Committee would stress the importance of the prin-
ciple of banning sex discrimination in relation to men's and
women's access to and supply of goods and services.

2.2
The Committee welcomes the consistency of wording
and definition in this proposal with that in the two previous
Directives and that on the burden of proof in equality cases.

(1) COM(2003) 657 final, Explanatory memorandum.

The Committee understands that

2.4
the proposal only
covers the media and advertising in their role as service indus-
tries. It accepts that the current proposal
is not the correct
vehicle for action on the content of media and advertising.
However, as the media and advertising exert powerful influence
on public attitudes and opinions, they cannot be ignored in the
EU's efforts to remove discrimination from employment and
everyday life. There is, however, a fine line between appropriate
action and censorship. The Commission should,
therefore,
continue its consultations on these issues, bearing these factors
in mind and take appropriate action, within a reasonable time-
frame. The Committee looks forward to taking its part in this
process.

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2.5
The Committee welcomes the fact that men and women
would have equal access to finance — particularly important
for them both, whether as entrepreneurs or as persons seeking
housing finance.

2.6
Since education, the media and advertising are excluded
from the Directive, the Committee feels that non-discrimination
on the basis of gender in access to insurance is the most deli-
cate aspect of the proposal. No new discriminatory criteria
should be created in any area covered by the proposal,
including insurance.

2.6.1
The Committee has serious doubts about the claim
that unisex rates — which are actually applied in certain coun-
tries of the Union — always increase insurance premiums in
general and that spreading risks more evenly between men and
women tends to push up insurance costs. It is unwise and
inconsistent with the purpose of the proposal to allow Member
States to defer implementation of equal treatment for six years
in the general context of free provision of services and freedom
of establishment in the field of insurance.

2.6.2
On the matter of universal access to rights to insur-
ance complementing social protection, the Committee calls for
the abolition of direct and indirect discrimination. This request
is especially urgent given that the second and third pillars of
social protection (supplementary insurance) are currently the
fastest growing components of social protection in the Union.
In this regard the Committee would refer to the proposals set
out in its Opinion on Supplementary health insurance (1).

3. Specific comments

3.1
The Committee supports equalisation of access to finan-
cial services, many of which are essential to everyday life and
the equalisation of benefits and premiums for men and women.
However, the Directive covers a wide range of financial services
that are very different in nature — e.g., motor insurance, health
and disability insurance and pensions and annuities. This raises
complex and difficult issues, that vary from one Member State
to another.

3.1.1
It must, however, be recognised that there will be
some adverse as well as positive effects in the equalisation of
benefits and premiums for consumers of these services, the
effects for men and women varying, depending on the financial
service involved.
‘no-claim’
bonuses for individuals arise only after several years of insur-
ance experience. There is a distinct possibility that, in order to
insurance costs could rise for
cover uncertainties arising,
everyone.

In the case of motor insurance,

3.1.2
The European Court of Justice in the Colorell judge-
ment (2) accepted that the use of actuarial statistics based on
sex was valid for the purposes of calculation of pension contri-
butions and benefits. It required, however, the contributions
made by employees and the benefits received by them to be
equal. Higher contributions on the part of the employer were
held to be valid. The Court has in effect recognised that equali-
sation of benefit costs more. In occupational pension schemes,
the employer paid the higher contribution. In private pension
and insurance provision, there is no employer to absorb any
higher premium or contribution: this will fall on the consumers
of the service. However, this does not only apply to pensions
where men have to pay for female longevity, but to all types of
insurance. Women may have to pay, for example, for men's
increased accident risk, etc.

3.1.3
The Commission in its Extended Impact Assessment
recognises that there will be specific costs for insurance provi-
ders, that will ultimately be passed on to the consumers but
considers that this will end once the adjustment period has
passed. The EESC takes the same view.

3.1.4
The Committee would also refer here to the Treaty
principle on equal treatment for women and men. If this prin-
ciple is used as a basis, the insurance industry must — over a
time, naturally — amend its calculation
certain period of
systems so that sex is no longer a factor in calculating car
insurance premiums, for example. Since accident frequency and
longevity are clearly not affected by calculation methods,
consumers' overall premium payments
in theory,
remain unchanged

should,

3.1.5
The Committee considers that more specific assess-
ment (including independent simulations on effects of alterna-
tive bases) of the insurance/pensions industry are required in
order to assess the long-term impact of the proposals. The
Committee believes it is important to monitor events — parti-
cularly in the insurance industry — after the directive has
entered into force. The overall aim of the directive must be to
protect people's right not to suffer discrimination.

3.2
In relation to the provision of housing, the Committee
is of the opinion that the Directive should not apply to private
arrangements, i.e., lease, sale or donation, made between family
members.

3.3
The Committee is of the opinion that exclusions should
be clearly defined. They must not jeopardise equality between
women and men.

(1) OJ C 204, 18.7.2000, p. 51 (rapporteur: Jean-Michel Bloch-Lainé).

(2) Coloroll Pension Trustees Ltd v Russell & Others C-200/91, 28

September 1994.

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3.4
The Committee welcomes Article 5, which permits posi-
tive action. This provision should not, however, endanger vital
services provided both by the public service and by NGOs for
men and women, such as single-sex housing for disadvantaged
persons and shelters for women who have been subject to
domestic or other forms of violence.

Brussels, 3 June 2004.

The Committee approves the provision on dialogue with
3.5
non-governmental
provision must,
however, guarantee regular contact with organised civil society.

organisations.

This

3.6
Information and publicity of the Directive when adopted
will be vital to ensure that consumers are fully aware of their
rights and that providers of goods and services understand
their obligations under it.

The President

of the European Economic and Social Committee

Roger BRIESCH

Opinion of the European Economic and Social Committee on the ‘Communication from the
Commission to the Council and the European Parliament — Stimulating technologies for sustain-
able development: an environmental technologies action plan for European Union’

(COM(2004) 38 final)

(2004/C 241/14)

On 28 January 2004 the Commission decided to consult the European Economic and Social Committee,
under Article 262 of the Treaty establishing the European Community, on the ‘Communication from the
Commission to the Council and the European Parliament — Stimulating technologies for sustainable devel-
opment: an environmental technologies action plan for European Union’.

The Section for Agriculture, Rural Development and the Environment, which was responsible for preparing
the Committee's work on the subject, adopted its opinion on 6 May 2004. The rapporteur was Mr Buffe-
taut.

At its 409th plenary session (meeting of 2 June 2004) the European Economic and Social Committee
adopted the following opinion by 177 votes to one with five abstentions.

1. Introduction

The Commission lists three:

1.1
This communication is one in a long line of non-legisla-
tive Commission texts which take stock of past initiatives and
future options in a particular sector. It forms a sort of general
framework for Commission thinking on environmental tech-
nologies.

— to remove the obstacles so as to tap the full potential of

environmental technologies,

— to ensure that the EU takes a leading role in developing and

applying environmental technologies, and

From the very start, the communication is set in the
1.2
context of the EU sustainable development strategy and the
Lisbon strategy, pointing out — in the words of the now
familiar refrain — that the aim is to make the EU ‘the most
competitive and dynamic knowledge-based economy in the
world, capable of sustainable economic growth with more and
better jobs and greater social cohesion’.

— to mobilise all stakeholders in support of these objectives,

with the ultimate aim being to reduce pressures on our natural
resources, improve the quality of life for Europe's population
and promote economic growth.

1.3
But after this now ritual reminder, the real question is
raised, namely what are the aims of this environmental technol-
ogies action plan (ETAP)?

The Commission thinks that politically the time is right
1.4
for launching this action plan, but the question is how is this
to be done and what concrete actions are to be taken. It is the
responses to these two questions which structure the text.