Opinion of the European Economic and Social Committee on the ‘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’(COM(2004) 279 final — 2004/0084 (COD))
Date: 2004-12-15
Institutions: European Economic and Social Committee
Subjects: EU policy, employment policy, equal treatment, gender equality

28.6.2005

EN

Official Journal of the European Union

C 157/83

4.6
The EESC believes that sectoral analyses can and will
contribute positively to a better understanding of developments
at stake. These will also favour a closer cooperation between
public and private parties as well as tailor-made approaches
and desirable adjustment of policies at EU-level and national
level
in order to promote the creation of new opportunities
and, consequently, to contribute to the realisation of the Lisbon
Strategy. Sectoral frameworks are also an appropriate vehicle
social dialogues aiming at promoting broadly shared
for
commitment and at promoting the quality of human resources.

4.7
A sectoral approach of this type increasingly requires
knowledge of world trends and industrial change within the

services of the Commission. The EESC recommends strongly
that Commission officials deepen their practical knowledge of
what is at stake in the private sector. The CCMI and the Euro-
pean Monitoring Centre on Change can contribute to sectoral
analyses as consultative partners without encroaching upon the
role of the social players.

4.8
Taking into account the developments in the other big
world regions — costs, competences and the combination of
both — the decisive factors for European competitiveness are
knowledge, quality, both of companies as such and of human
resources and skills, and adequate organisation. Future-oriented
policies and measures in these fields will be crucial.

Brussels, 15 December 2004.

The President

of the European Economic and Social Committee

Anne-Marie SIGMUND

Opinion of the European Economic and Social Committee on the ‘Proposal for a Directive of the
European Parliament and of the Council on the implementation of the principle of equal opportu-
nities and equal treatment of men and women in matters of employment and occupation’

(COM(2004) 279 final — 2004/0084 (COD))

(2005/C 157/14)

On 18 May 2004, the Council decided to consult the European Economic and Social Committee, under
Article 262 of the Treaty establishing the European Community, on the abovementioned proposal.

The Section for Employment, Social Affairs and Citizenship, which was responsible for preparing the
Committee's work on the subject, adopted its opinion on 25 November 2004 The rapporteur was
Mrs Sharma.

At its 413th plenary session on 15/16 December 2004 (meeting of 15 December 2004), the European
Economic and Social Committee adopted the following opinion by 147 votes in favour, one vote against
and six abstentions.

1. Introduction

1.1
The proposal's principal objective is to enhance trans-
parency and clarity of equal treatment legislation and to facili-
tate effective application by reinforcing the acquis and avoiding
regression. A single piece of legislation is needed with a clear
structure, easily accessible and legible to support the achieve-
ment of socio-economic Community policy goals for more and
better jobs for women.

1.2
Regrouping the provisions of the Directives on access to
employment, equal pay, occupational social security and the
burden of proof opens the chance to present a single coherent
text
is free of contradicting definitions. The proposal
accounts for recent developments in European case law by

that

updating existing secondary legislation in line with judgements
of the European Court of
Justice which have clarified and
further developed the concept of equality. It also serves to guar-
antee a high level of legal certainty by putting together provi-
sions of Directives linked by their subject — all this in the
context of the new political environment which presents the
Union as being open, understandable and relevant to daily life.

applies

The Directive

1.3
to the working population,
including self-employed persons, persons whose activity is
interrupted by illness, maternity, accident or involuntary unem-
ployment and persons seeking employment, and to retired and
disabled workers, and to those claiming under them, in accord-
ance with national law and/or practice.

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2. Background

— In 1978, a Directive relating to statutory security schemes

was adopted. (5)

2.1
The Treaty of Amsterdam reinforced Community
competence concerning equality between men and women and
introduced the objective to eliminate inequalities in all fields of
life and to promote gender equality. Unequal treatment
civil
not only violates a fundamental principle of
the European
Union, but it is also a limiting factor for economic growth and
prosperity of national economy.

2.2
Equal treatment is a prerequisite for the EU to succeed
in reaching the objectives for growth and sustainable economic,
social and environmental development. Europe will more than
ever before have to rely on a much higher proportion of
women in the working population which can only be achieved
by creating a floor of equal rights granted to all.

Research has

2.3
shown that discrimination based on
gender as well as the lack of specific support for employees
with family responsibilities is a significant barrier which inhi-
bits the growth of female employment in the first place.

2.4 Evolution of the legislation on equal treatment between men and

women

Equal treatment for men and women is fundamental to the
social concept of the European Community. As early as 1976,
the principle of equal pay for men and women as laid down in
Article 119 EEC (Article 141 EC) was described as one of the
fundamental principles of Community law by the European
Court of Justice. (1)

— The first equal treatment Directive adopted in 1975 deals

with equal pay. (2)

— In 1976, the Directive on equal treatment in employment
followed. (3) This Directive was substantially amended in
2002 by Directive 2002/73 that defined ‘harassment’ and
‘sexual harassment’. (4)

(1) ECJ 8.4.1976 – C-43/75 Defrenne II, ECR 1976, p. 455.
(2) Council Directive 75/117/EEC of 10.2.1975 on the approximation
of the laws of the Member States relating to the application of the
principle of equal pay for men and women.

(3) Council Directive 76/207/EEC of 9.2.1976 on the implementation
of the principle of equal treatment for men and women as regards
access to employment, vocational
training and promotion, and
working conditions.

(4) Directive 2002/73/EC of

the European Parliament and of

the
Council of 23.9.2002 amending Council Directive 76/207/EEC on
the implementation of the principle of equal treatment for men and
women as regards access to employment, vocational training and
promotion, and working conditions.

— In 1986, a Directive introducing the principle of equal
for men and women in occupational social
adopted. (6) This Directive was
later

treatment
schemes was
amended. (7)

— In 1986 a Directive on equal treatment of men and women
engaged in an activity in a self-employed capacity including
agriculture was introduced with provisions on protection of
self-employed women during pregnancy and mother-
hood. (8)

— In 1992 a Directive on protection of pregnant workers was
adopted as a health and safety measure, including a statu-
tory right to maternity leave of at least 14 weeks, time off
for
against
dismissal. (9)

examinations

protection

ante-natal

and

— In 1995 the framework agreement on parental leave was
concluded between the European level cross industry orga-
nisations and this was subsequently adopted as a Directive;
it points out that equal
treatment also means applying
measures to men and recognises the importance of fathers
in child care. (10) This Directive was later amended and
extended to cover the UK. (11)

— In 1997 the burden of proof Directive was adopted. (12)
This Directive was also later extended to cover the UK. (13)

(5) Council Directive 79/7/EEC of 19.12.1978 on the progressive
implementation of the principle of equal treatment for men and
women in matters of social security.

(6) Council Directive 86/378/EEC of 24.7.1986 on the implementation
of the principle of equal treatment for men and women in occupa-
tional social security schemes.

(7) Council Directive 96/97/EC of 20.12.1996 amending Directive
86/378/EEC of 24 July 1986 on the implementation of the principle
of equal
treatment for men and women in occupational social
security schemes.

(8) Council Directive 86/613/EEC of 11.12.1986 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.

(9) Council Directive 92/85/EEC of 19.10.1992 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.

(10) Council Directive 96/34/EC of 3.6.1996 on the framework of

parental leave concluded by UNICE, CEEP and the ETUC.
(11) Council Directive 97/75/EC of 15.12.1997 amending

and
extending, to the United Kingdom of Great Britain and Northern
Ireland, Directive 96/34/EC on the framework agreement on
parental leave concluded by UNICE, CEEP and the ETUC.

(12) Council Directive 97/80/EC of 15.12.1997 on the burden of proof

in cases of discrimination based on sex.

(13) Council Directive 98/52/EC of 13.7.1998 on the extension of
Directive 97/80/EC on the burden of proof in cases of discrimina-
tion based on sex to the United Kingdom of Great Britain and
Northern Ireland.

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The European Court of Justice has always played an important
role in contributing to diminish effectively discrimination of
women in employment. The Court interprets Community Law
and naturally develops the incomplete legal concepts of rela-
tively young Community Law to a coherent system of law (1).
In the field of equal opportunities, the court has predominantly
used the construction of direct and indirect discrimination in
pursuing the efficient application of equal treatment legisla-
tion (2) and has made clear that protection against sex discrimi-
nation relates also to men. (3)

treatment;

employee organisations and are not considered to fall under
equal
the Directive on maternity and nursing
mother rights, which fall under health and safety legislation;
the Directive on equal treatment in matters of social security
and the Directive on protection of women's rights in self-
employment, including agriculture.

3. Specific comments

3.1
The EESC congratulates the Commission on its work
towards simplifying and making more accessible the bulk of
the gender directives. Gender equality is a fundamental right in
all aspects of social and economic life and therefore legislation
must be clear and easy for everybody to read.

A 30-year process of gender legislation has created 12
3.2
directives and the Committee notes that the Commission is
now amalgamating seven of these directives with the common
theme of equal treatment into a single recast version. (4) The
Commission has chosen to recast these seven directives since
there are many common threads throughout the Directives
causing repetition and overlapping, but also a certain lack of
coherence in the definitions.

3.3
The recast process modernises, clarifies and simplifies
the seven into one by reducing the overall length of the texts
and incorporating one set of definitions, including definitions
on direct and indirect discrimination and harassment. The
Committee welcomes this move in the light of the enlargement
and the Commission's commitment to better regulation.

3.4
The Committee notes that five gender directives have
been omitted from the recasting exercise through lack of
commonality. (5) These include the two parental rights' Direc-
tives, which were framed in conjunction with employer and

(1) Streinz, Europarecht, 4th ed., Heidelberg 1999, para. 494.
(2) Since ECJ Case C-96/80 Jenkins, Case C-170/84 Bilka v Weber von
Hartz, Case C-171/88 Rinner-Kühn and Case C-184/89 Nimz v
Freie und Hansestadt Hamburg.

(3) ECJ Case C-450/93 Kalanke; ECJ Case C-409/95 Marschall.
(4) Council Directive 75/117/EEC, Council Directive 76/207/EEC,
Council Directive 86/378/EEC, Council Directive 96/97/EC, Council
Directive
98/52/EC, Directive
2002/73/EC of the European Parliament and of the Council.

97/80/EC, Council Directive

(5) Council Directive 79/7/EEC, Council Directive 86/613/EEC, Council
Directive 92/85/EEC, Council Directive 96/34/EC, Council Directive
97/75/EC.

3.5
The Committee supports the Commission's view that
inclusion of these directives would complicate and lengthen the
recast Directive. However, the EESC wishes to highlight Direc-
tive 86/613/EEC (6) as being in need of an immediate review in
the female self-employed and
the light of
women employed in agriculture. It is the EESC view that this
particular piece of legislation is weak in content, providing
insufficient protection for women. Given its relevance to the
Lisbon objectives, an urgent update is therefore necessary.

the numbers of

3.6
The Commission has made two additions to the Direc-
tives that directly reflects well established case law and there-
fore just clarifies legislation already in place. These additions
concern equal pay (Article 4) and occupational pensions for
civil servants (Article 6). (7) The EESC notes that the European
Court of Justice is instrumental in strengthening European law.
Inclusion of case law in the recast directive adds clarity and
purpose.

3.7
The codification exercise is technical and the Commis-
sion has stated that the substance of the directives have not
been added to, excepting Article 21 the provision on the
bodies for the promotion of equal treatment in the ‘Horizontal
Provisions’ of Title III. The inclusion of the ‘Horizontal Provi-
sions’ across the whole directive now increases, albeit margin-
ally, the powers of equality bodies by broadening the scope of
application. This may open the door for further extension of
powers at a later date. The EESC points out that whilst the
substance has not changed, updating and modernising the
Directives,
together with the resulting case law may imply
changes in the long term.

(6) Council Directive 86/613/EEC of 11.12.1986 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.

(7) Article 4 in the new Directive reflects that there, according to the
Court,
is ‘(nothing) in the wording of Article 141(1) EC (…) to
suggest that the applicability of that provision is limited to situa-
tions in which men and women work for the same employer’ while
Article 6 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.

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4. Conclusion

4.1
Gender equality has been supported by 30 years of legis-
lation and whilst the EESC commends the Commission for its
move to simplify and make the directive easier to read, true
equality across Europe cannot be achieved without positive
action on the part of all Member States in demanding equal
treatment for men and women. The Committee believes that
exchanging and promoting good practices and increasing social
dialogue in this field are a concrete way of delivering progress
and fully recognizes the fundamental role of the social partners,
highlighting their activities within the ‘Work Programme of the

European Social Partners 2003-2005’. The Commission must
do more in promoting equal treatment, equal opportunities
and the value of women to the European economy in order to
achieve the Lisbon goals.

4.2
The EESC would request the Commission to consider
encouraging Member States to produce a guideline booklet
highlighting the main features of European gender directives as
they have been transposed into national legislation, the obliga-
tions of employers and the rights of employees, to remove the
ignorance surrounding equal treatment and enhance the bene-
fits to the economy.

Brussels, 15 December 2004.

The President

of the European Economic and Social Committee

Anne-Marie SIGMUND

Opinion of the European Economic and Social Committee on the ‘Communication from the
the European Economic and Social
Commission to the Council,
Committee and the Committee of the Regions’ — ‘Study on the links between legal and illegal
migration’

the European Parliament,

(COM(2004) 412 final)

(2005/C 157/15)

On 4 June 2004, the European Commission decided to consult the European Economic and Social
Committee, under Article 262 of the Treaty establishing the European Community, on the abovementioned
communication.

The Section for Employment, Social Affairs and Citizenship, which was responsible for preparing the
Committee's work on the subject, adopted its opinion on 24 November 2004. The rapporteur was Mr
Pariza Castaños.

At its 413th plenary session on 15 and 16 December 2004 (meeting of 15 December 2004), the European
Economic and Social Committee adopted the following opinion by 138 votes, with 8 abstentions.

1. Summary of the Communication

The Thessaloniki European Council of

1.1
July 2003
stressed the need for the EU to explore legal means for third
country nationals to migrate to the Union, taking into account
the reception capacity of the Member States, within the frame-
work of an enhanced co-operation with the countries of origin.
The Commission has presented the results of a study requested
by the European Council on the links between legal and illegal
migration. It asks whether or not legal avenues for the admis-
illegal migration.
sion of migrants
Following this Communication, the Commission will present a
Green Paper on legal channels for immigration.

reduce incentives

for

country nationals for the purpose of employment is governed
by the legislation in force in each Member State and this varies
considerably. Some States have closed their doors to labour
migration, whilst others have policies that allow immigrant
workers to enter the country if they have a job offer, with due
respect for the principle of national preference. Some States
also admit self-employed workers. Most economic migrants are
initially admitted on a temporary residence permit, which may
last from between one to five years.

1.2
In the first part, the Commission examines existing
legal channels for labour migration. The admission of third-

The number of economic immigrants admitted by States
1.3
in any given year is also determined by very different methods.
Some States only accept highly skilled workers (for example
the German Green Card system) and the United Kingdom's