Amended proposal for a Directive of the European Parliament and of the Council on the implementation of the principle of equal treatment of men and women in matters of employment and occupation (recast version) (presented by the Commission pursuant to Article 250 (2) of the EC Treaty
Date: 2005-08-25
Institutions: European Commission
Subjects: employment policy, equal treatment, gender equality, job access, labour market, vocational training, working conditions

COMMISSION OF THE EUROPEAN COMMUNITIES 

Brussels, 25.8.2005 
COM(2005) 380 final 

2004/0084 (COD) 

Amended proposal for a 

DIRECTIVE OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL 

on the implementation of the principle of equal treatment of men and women in matters 
of employment and occupation (recast version) 

(presented by the Commission pursuant to Article 250 (2) of the EC Treaty 

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2004/0084 (COD) 

Amended proposal for a 

DIRECTIVE OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL 

on the implementation of the principle of equal treatment of men and women in matters 
of employment and occupation (recast version) 

1. 

BACKGROUND 

The  Commission  adopted,  on  21  April  2004,  a  proposal  for  a  Directive  of  the 
European  Parliament  and  of  the  Council  on  the  implementation  of  the  principle  of 
equal treatment of men and women in matters of employment and occupation (recast 
version)1.  The  specific  legal  base  is  Article  141(3)  EC  requiring  the  co-decision 
procedure. 

The  objective  of  the  proposal  is  to  contribute  to  legal  certainty  and  clarity  in  the 
implementation of the principle of equal treatment between men and women in the 
area  of  employment  and  occupation,  by  bringing  together  in  a  single  text  the  main 
provisions existing in this field, as well as certain developments arising out of well-
settled case-law of the European Court of Justice.  

This  simplification  and  streamlining  of  the  Community  acquis  will  facilitate  the 
accessibility  and  readability  of  Community  legislation  both  for  legal  practitioners 
and  the  general  public  and  is,  as  such,  an  important  step  in  the  work  on  better 
regulation.  

The proposal merges the following six existing Directives on equal treatment of men 
and women in the field of employment into one single coherent instrument: 

•  Directive 75/117 on equal pay; 

•  Directive 76/207 as amended by Directive 2002/73 on equal treatment as regards 
training  and  promotion,  and  working 

to  employment,  vocational 

access 
conditions; 

•  Directive  86/378  as  amended  by  Directive  96/97  on  equal  treatment  in 

occupational security schemes; 

•  Directive 97/80 on the burden of proof in cases of discrimination based on sex. 

The  proposal  is  not  simply  an  exercise  of  consolidation.  Some  substantive 
amendments have been introduced. These changes constitute a cautious approach to 
updating and modernising Community law. For example, the text incorporates some 
well-established case law of the European Court of Justice with a view to clarifying 

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COM (2004) 279 final. 

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key  concepts  of  equal  treatment  law.  Furthermore,  the  scope  of  some  horizontal 
provisions  contained  in  the  most  recent  Directives  –  for  example  on  the  burden  of 
proof  –  has  been  explicitly  made  applicable  to  the  area  of  occupational  social 
security  schemes.  In  practice,  the  jurisprudence  of  the  Court  has  already  extended 
these  provisions  to  the  principal  features  of  occupational  schemes.  The  principal 
value of the proposal in that respect is thus to clarify the legal situation.  

At its December 2004 session, the European Economic and Social Committee issued 
its  Opinion  on  the  proposal2.  At  its  plenary  session  of  6  July  2005,  the  European 
Parliament  adopted  98  amendments  to  the  Commission’s  proposal  (the  numbers  of 
the  amendments  extend  to  108  but  ten  amendments  within  that  range  were 
withdrawn,  superseded  by  other  amendments  or  rejected  by  the  European 
Parliament). 

2. 

EXAMINATION OF THE AMENDMENTS 

The  Commission  accepts  entirely,  subject  to  reformulations  or  in  spirit  the 
amendments 1, 2, 4, 6, 8, 9, 11, 14 - 23, 25 - 28, 31 - 35, 37 - 43, 45, 47 - 52, 54, 55 - 
62, 64 - 66, 68 - 70, 74, 75, 77 - 80, 82, 83, 85, 87, 88 - 93, 101 and 106 - 108. 

The  Commission  accepts  in  part  amendments  5,  24,  71  -  73,  76,  81,  84  and  102  - 
105. 

It cannot accept amendments 3, 12, 13, 29, 30, 36, 53, 63, 67, 86 and 100. 

2.1. 

Amendments accepted or accepted in spirit by the Commission 

2.1.1 

Amendments 27, 28, 33, 37, 39, 41 - 43, 48 - 52, 57 - 60, 62, 64 - 66, 68, 74, 75, 78 - 
80, 82, 85, 87, 89 – 93 

These  amendments  add  titles  for  the  individual  Articles  and  change  the  heading  of 
Title III, Chapter 1 with a view to making the Directive more easily readable. This is 
entirely acceptable with a need for reformulation only with regard to very few of the 
titles.  To  be  more  precise  and  concise  as  well  as  consistent  with  the  wording  used 
throughout  the  Directive  Article  8  is  to  be  called  "Examples  of  discrimination", 
Article 9 "Implementation as regards self-employed persons", and Article 10 is to be 
renamed  "Possibility  of  deferral  as  regards  self-employed  persons".  For  greater 
clarity,  Article  15  should  be  callled  "Return  from  maternity  leave"  and  Article  20 
"Scope of the rule on the burden of proof". Finally, titles have to be introduced for 
provisions  where  that  was  omitted  by  the  European  Parliament,  i.e.  for  Articles  5a 
("Personal  scope"),  28a  ("Relationship  with  other  Community  and  national 
provisions") and 30 ("Dissemination of information"). 

2.1.2 

Amendment 1 

This  modification  is  intended  to  avoid  the  potential  misunderstanding  that  specific 
further amendments going beyond the recasting exercise are already envisaged. The 
amendment  can  be  accepted  subject  to  a  reformulation  that  completes  the 

2 

OJ C 157, 28.6.2005, p.83. 

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clarification by stating in addition in the same sentence that "further amendments are 
made" instead of "are to be made". 

2.1.3 

Amendments 2 and 32 

The reintroduction of recital 4 of Directive 2002/73 quoting the Treaty provisions on 
gender equality at the end of recital 2 as well as the replacement of the term "equal 
treatment" by "equality" and the reference to the case-law of the Court of Justice can 
be accepted as they stand. 

The  new  language  in  the  last  sentence  of  the recital  and  in  Article  2  is  intended  to 
spell  out  that  less  favourable  treatment  on  the  grounds  of  gender  reassignment  is 
covered and prohibited by this Directive. The Commission endorses the initiative of 
drawing attention to the fact that the discrimination of transsexuals is discrimination 
on  the  grounds  of  sex  prohibited  by  the  Directive  according  to  the  case-law  of  the 
Court of Justice. It has to be taken into consideration, however, that unlike in other 
cases of discrimination on the grounds of sex one does not compare members of one 
sex with members  of the  other  sex. This type of discrimination  does not  always fit 
neatly  into  the  general  framework  of  sex-based  discrimination.  It  raises  special 
problems  that  may  require  special  solutions.  In  particular,  it  is  doubtful  if  the 
wording  of  amendment  2  covering  those  "undergoing  gender  reassignment"  would 
adequately  deal  with  the  specific  discrimination  of  transsexuals.  It  would  not  take 
into  account  the  fact  that  in  some  cases  no  discrimination  can  exist  before  the 
conditions for the recognition of the new sex are met and that in other cases it may 
not even be necessary to have begun reassignment and adverse treatment based on a 
mere  declaration  of  such  an  intention  would  have  to  be  considered  a  sex-based 
discrimination. Accordingly, in the context of amendment 32 it is not equally clear as 
in other forms of sex-based discrimination what actually amounts to discrimination, 
especially in those cases that are related to the recognition of a reassignment. 

For  those  reasons,  instead  of  these  two  amendments  which  the  Commission  can 
accept in spirit it is preferable to include a separate recital following current recital 2 
that  is  specifically  dedicated  to  this  issue  and  clarifies  that  the  discrimination  of 
transsexuals falls within the scope of this Directive. This lends a higher profile to the 
issue than just adding a sentence to a long and very general recital. It also avoids the 
potential ambiguities inherent in the language used in the amendment and the Article 
as  set  out  above.  The  new  recital,  quoting  what  the  Court  of  Justice  held  in  the 
judgment P v S (Case 13/94) reads: 

"The Court has held that the scope of the principle of equal treatment for men and 
women cannot be confined to the prohibition of discrimination based on the fact that 
a person is of one or other sex. In view of its purpose and the nature of rights which 
it  seeks  to  safeguard  it  also  applies  to  discrimination  arising  from  the  gender 
reassignment of a person"  

2.1.4 

Amendment 4 

This amendment is intended to clarify the language and put a special emphasis on the 
prohibition  of  harassment  and  sexual  harassment  which  have  to  be  subject  to 
dissuasive and proportionate sanctions. It can be accepted subject to the removal of 
the  terms  "before  the  courts"  at  the  very  end  of  the  recital  since  sanctions  do  not 

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necessarily  have  to  be  imposed  by  courts;  their  application  can  fall  within  the 
responsibility of administrative authorities, for example. 

2.1.5 

Amendment 6 

It  is  the  purpose  of  this  amendment  to  bring  this  recital  closer  to  the  language  of 
recital  16  of  Directive  2002/73  with  a  view  to  emphasising  the  crucial  role  of  the 
Court of Justice with regard to the interpretation of the principle of equal pay. The 
Commission  can  accept  the  amendment  subject  to  the  following  reformulation  that 
better responds to this intention: 

"The principle of equal pay for equal work or work of equal value as laid down by 
Article 141 of the Treaty and consistently upheld in the jurisprudence of the Court of 
Justice  constitutes  an  important  aspect  of  the  principle  of  equal  treatment  between 
men  and  women  and  an  essential  and 
the  acquis 
communautaire, including the case-law of the Court, concerning sex discrimination. 
It is therefore appropriate to make further provision for its implementation" 

indispensable  part  of 

2.1.6 

Amendment 8 

The  amendment  correctly  summarises  the  jurisprudence  of  the  Court  of  Justice  on 
the criteria for the assessment of whether or not work is of equal value and adds to 
the  clarification  of  the  meaning  of  the  Directive.  It  is  therefore  acceptable  to  the 
Commission. 

2.1.7 

Amendments 9, 38 

These amendments delete the reference to the concept of a "single source" to which 
pay differences can be attributed as developed by the Court of Justice, on the basis of 
the argument that the cases decided concerned specific circumstances that cannot be 
generalised and that the Court of Justice, unlike in the language of the proposal, used 
this concept only as a negative criterion to exclude the application of the principle of 
equal pay in the absence of a single source. The Commission is convinced that the 
initial  proposal  accurately  summarises  settled  case-law  but  it  can  accept  both 
amendments  as  they stand based on the consideration that the Court  of Justice  will 
continue to apply and further refine its case-law in that respect in the future whether 
or  not  this  aspect  is  explicitly  mentioned  in  the  Directive.  The  new  language 
replacing the general term 'discrimination' by a more precise reference to "direct and 
indirect" discrimination is also acceptable.  

2.1.8 

Amendment 11 

The amendment aims at retaining in a recital the illustrative examples for admissible 
unequal  levels  of  benefits  in  defined-contribution  schemes  funded  by  capital 
accumulation  that  are  currently  provided  in  an  Annex  to  Directive  96/97.  This 
modification adds to the transparency and comprehensibility of the legislation on the 
complicated  issue  of  occupational  social  security  and  can  therefore  be  accepted, 
provided  that  it  is  made  unequivocally  clear  that  one  is  dealing  with  examples  by 
adding the clause "by way of example" at the beginning ("By way of example, in the 
case of …"). 

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2.1.9 

Amendments 14, 15 

These amendments are intended to reinsert recital 5 of Directive 96/97 and recital 7 
of Directive 2002/73. These changes contribute to the clarity of the Directive and are 
thus acceptable for the Commission. 

2.1.10  Amendment 16 

This  amendment  reintroducing  recital  15  of  Directive  2002/73  is  acceptable  in 
principle but two minor corrections have to be made to bring the wording into line 
with that of  Directive  2002/73.  The terms "by Member States"  need to be removed 
and "objective" needs to be replaced by "object".  

2.1.11  Amendment 17 

The first part of the amendment reproduces parts of Article 141 (4) EC Treaty which 
can be accepted subject to correctly quoting the Treaty by mentioning full equality in 
practice  in  working  "life"  instead  of  using  the  narrower  term  of  working 
"conditions". The new last sentence is the reintroduction of the text of recital 14 of 
Directive 2002/73 which can be accepted as it stands. 

2.1.12  Amendment 18 

The first part of the amendment, stating that the Court of Justice has held pregnancy 
and  maternity  protection  measures  to  be  a  means  to  achieve  substantive  gender 
equality is in line with ECJ case-law and can thus be accepted. As in the rest of the 
recital,  however,  which  addresses  the  principle  of  equal  treatment  without  spelling 
out that the Directive is concerned with the equal treatment of men and women one 
should remove the term "gender" and simply refer to "substantive equality".  

The  change  in  the  last  sentence  is  unacceptable  in  the  wording  proposed  since 
parental  leave  is  unrelated  to  the  specific  protection  of  the  biological  condition  of 
women  and  maternity  protection  measures  which  can  by  definition  only  apply  to 
women.  Parental  leave  is  available  for  men  as  well.  The  clarification  that  this 
Directive is without prejudice to the parental leave Directive can be accepted but it 
has to be added in a separate new last sentence as follows: 

"This Directive is further without prejudice to Council Directive 96/34/EC of 3 June 
1996 on the framework agreement on parental leave". 

2.1.13  Amendment 19 

The  amendment  is  intended  to  reintroduce  the  final  part  of  recital  12  of  Directive 
2002/73 which essentially reproduces the text of Article 15 (2) infine. This adds to 
the clarity and the consistency of the language used throughout the Directive. It can 
be accepted as it stands. 

2.1.14  Amendments 20, 21 

Amendment 20 repeats recital 13 of Directive 2002/73 relating to the explanation of 
the legal situation concerning paternity leave and amendment 21 inserts a new recital 
essentially  extending  the  same  considerations  to  adoption  leave.  The  Commission 

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can accept in spirit both amendments that are closely interrelated due to the fact that 
paternity and adoption leave are jointly dealt with in Article 16. In order to avoid a 
cumbersome repetition, to streamline the text and clarify the language with regard to 
adoptions, the two recitals are to be merged by adding the following text at the end of 
recital 19a whilst deleting its current last sentence: 

"Similar considerations apply to the granting by Member States to women and men 
of an individual and non-transferable right to leave subsequent upon the adoption of 
a  child.  In  this  context,  it  is  important  to  stress  that  it  is  for  the  Member  States  to 
determine  whether  or  not  to  grant  such  a  right  to  paternity  and/or  adoption  leave 
and also to determine any conditions, other than dismissal and return to work, which 
are outside the scope of this Directive." 

2.1.15  Amendment 22 

This amendment contains a clarifying additional reference to the "national" character 
of the bodies investigating cases of alleged discrimination dealt with in the recital, in 
conformity  with  mention  being  already  made  of  "national"  bodies  in  the  following 
sentence. It is acceptable to the Commission. 

2.1.16  Amendment 23 

This  amendment  re-introduces  the  second  sentence  of  recital  17  of  Directive 
2002/73. It makes the significant clarification not explicitly  spelt out by the text of 
the corresponding Article 25 that employees defending or giving evidence on behalf 
of a person protected under this Directive should be entitled to the same protection 
against adverse treatment. It can therefore be accepted as it stands.  

2.1.17  Amendment 25 

This  amendment  is  aimed  at  introducing  a  new  recital  accurately  highlighting  the 
importance  of  the  collection,  analysis  and  publication  of  gender-specific  data  for  a 
better  understanding  of  equal treatment  issues.  It  can  thus  be  accepted  without  any 
changes to the wording. 

2.1.18  Amendment 26 

This new recital calls upon Member States and social partners to do more to promote 
awareness of the inequality in remuneration and the changing of attitudes with a view 
to  giving  fresh  impetus  to  the  battle  against  the  gender  pay  gap  by  non-legislative 
means. The Commission can endorse that statement and accept the amendment as it 
stands. 

2.1.19  Amendment 31 

It  is  the  purpose  of  this  amendment  to  move  the  clarification  that  less  favourable 
treatment  of  a  woman  related  to  pregnancy  or  maternity  leave  constitutes 
discrimination  on  the  grounds  of  sex  from  Article  15  to  where  it  belongs  as  an 
element of the definition of discrimination. It can therefore be accepted subject to the 
corresponding deletion of Article 15 (1) omitted by the European Parliament.  

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2.1.20  Amendments 34, 40 

These amendments move the text of Article 3 (1) from a horizontal section back to 
the  chapter  on  occupational  social  security  schemes  where  it  originates  (Directive 
96/97) This relocation can be accepted since the wording of this provision is tailor-
made to the specific area of occupational schemes and does not imply a value added 
outside that realm. No other equal treatment Directive comprises a provision on the 
personal scope and no problems related to this issue have been raised which proves 
that  such  a  clarification  is  apparently  not  necessary  elsewhere.  The  new  Article  5a 
has to be given a heading ("Personal scope") as the other provisions. 

In the light of the deletion of Article 3 (1), however, the remaining paragraphs 2 and 
3,  typical  "without  prejudice"  clauses,  do  not  merit  such  a  prominent  place  in  the 
Directive  on  their  own  any  more  and  have  to  be  moved  to  a  general  horizontal 
provisions  towards  the  end  of  the  Directive  where  one  usually  expects  this  type  of 
clause. The new Article 28a is the appropriate place for such a provision (see point 
2.2.5 below). 

2.1.21  Amendments 35, 56 

These amendments move the text of Article 14 of the proposal from the chapter on 
access  to  employment  etc.  to  the  horizontally  applicable  new  Article  3a  under  the 
title "Positive action". Apart from the use of the word "shall" instead of "may", they 
are in line with both Article 141 (4) EC Treaty that applies to working life in general 
and  the  comparable  equal  treatment  and  anti-discrimination  Directives  2004/113, 
2000/43  and  2000/78  which  include  a  horizontal  provision  on  positive  action. 
Therefore the Commission can accept this modification, subject to replacing "shall" 
with "may". 

2.1.22  Amendments 45, 47 

These amendments are intended to remove the reference to point (i) in Article 8 (1) 
(d) and (k). They rectify a technical mistake in the initial proposal. After the split of 
the old Article 6 (1) (i) of Directive 96/97 into two points – Article 8 (1) (i) and (j) of 
the  recast  proposal  –  point  (i)  does  not  allow  any  derogation  from  the  principle  of 
equal treatment any more and can thus no longer be referred to as an exception in the 
context  of  Article  8  (1)  (d)  and  (k).  The  amendments  are  thus  acceptable  as  they 
stand. 

2.1.23  Amendment 54 

The objective of this amendment to make clear by a reference to Article 141 of the 
Treaty  that  there  are  no  different  notions  of  pay  in  this  Directive  and  in  the  EC 
Treaty  and  that  therefore  the  recast  will  not  imply  any  changes  to  the  principle  of 
equal  pay  or  invalidate  the  Court's  case-law  or  parts  of  it  in  that  respect  can  be 
accepted in principle. But in that case the additional self-reference to "this Directive" 
becomes  superfluous  and  rather  confusing  and  thus  needs  to  be  removed.  The  text 
has to be reformulated to read as follows: 

"…as well as pay as provided for in Article 141 of the Treaty". 

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2.1.24  Amendment 55 

This amendment, together with amendment 88 (see point 2.1.29 below) is intended to 
move  the  paragraph  that  imposes  on  Member  States  the  obligation  to  report  on  the 
assessment  of  exceptions  to  the  principle  of  equal  treatment  based  on  sex  being  a 
genuine  and  determining  occupational  requirement  to  Article  31.  This  relocation  is 
justified  as  that  latter  provision  generally  deals  with  periodical  reports  by  Member 
States on the implementation of the Directive. It can therefore be entirely accepted. 

2.1.25  Amendment 61 

The  amendment  is  intended  to  delete  a  reference  to  possible  recourse  to  other 
competent bodies prior to judicial and/or administrative procedures. It further newly 
introduces mediation and arbitration in addition to the notion of conciliation already 
in the text as other forms of amicably settling disputes. 

The Commission can subscribe to the objective of clarifying the text and removing 
redundancies  in  principle  subject  to  a  reformulation.  The  deleted  terms  "after 
possible recourse to other competent authorities" were originally an element of the 
guarantee of access to judicial review (" … to pursue their claims by judicial process 
after  possible  recourse  to  other  competent  authorities")  in  Directives  76/207,  79/7 
and 86/378. This reference was then replaced by a more general formulation used in 
Directives  2000/43,  2000/78,  2002/73  and  2004/113  which  guarantees 
the 
availability of "judicial and/or administrative procedures, including where they deem 
it appropriate conciliation procedures, for the enforcement of obligations under this 
Directive". The combination of these two approaches is redundant and the deletion of 
one  of  these  elements  thus  justified.  But  the  reference  to  judicial  and/or 
administrative procedures is unfortunately worded in that it tends to create the wrong 
impression that Member States have a choice between granting access to one or the 
other or both and could thus restrict judicial review on the grounds of the possibility 
to  launch  an  administrative  complaints  procedure.  Therefore,  the  deletion  should 
extend  to  this  ambiguous  wording  whilst  keeping  the  more  precise  formulation 
removed by the amendment. Furthermore, no value added is brought about by going 
into more detail as regards the different types of efforts to find an amicable solution. 
This would also imply the introduction of an unnecessary discrepancy as compared 
to other Directives in this field. The text as reworded thus reads as follows: 

"Member  States  shall  ensure  that,  after  possible  recourse  to  other  competent 
authorities  including  where  they  deem  it  appropriate  conciliation  procedures, 
judicial  procedures  for  the  enforcement  of  obligations  under  this  Directive  are 
available …"  

2.1.26  Amendments 69, 70 

These amendments broaden the reference to the workplace to include issues related 
to  access  to  employment,  vocational  training  and  promotion.  They  also  add  a 
reference  to  research  being  based  on  gender-specific  data.  The  latter  element 
highlights  again  the  importance  of  comparable  gender-specific  data  in  that  it 
specifies the existing notion of research as one of the potential activities of the social 
partners  which  are  to  be  encouraged  by  Member  States.  It  can  be  accepted  as  it 

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stands. The broadened reference to workplace practices is acceptable subject to the 
following reformulation that improves the unclear structure of the sentence: 

"… through the monitoring of practices in the workplace, in access to employment, 
in vocational training  and promotion at work as well  as through the  monitoring of 
collective agreements …" 

2.1.27  Amendment 77 

The  purpose  to  clarify  the  reference  to  "schemes"  –  a  notion  that  was  sufficiently 
precise  in  Directive  96/97  exclusively  dealing  with  occupational  social  security 
schemes but is slightly vague in this broader Directive – can be accepted in spirit but 
the  text  as  suggested  is  redundant  and  potentially  confusing  since  "occupational 
schemes" and "social security schemes" have an identical meaning in the context of 
this  subparagraph  that  exclusively  applies  to  occupational  social  security  schemes. 
The text has to be reworded as follows: 

"occupational social security schemes containing …".  

2.1.28  Amendment 83 

The  text  of  this  amendment  introducing  the  standard  clause  on  the  possibility  for 
Member States to go beyond the minimum standards laid down in a Directive can be 
accepted as it stands but subject to the reversal of the order of the two paragraphs in 
order  to  stay  consistent  with  all  other  comparable  equal  treatment  and  anti-
discrimination  Directives.  This  means  that  Member  States  may,  for  example,  go 
beyond the minimum standards set for the burden of proof rule. 

2.1.29  Amendment 88 

The move of the obligation to report on the assessment of exceptions to the principle 
of  equal  treatment  based  on  sex  being  a  genuine  and  determining  occupational 
requirement from Article 13 to Article 31 can be endorsed (see point 2.1.24 above). 
It is also acceptable in principle to newly introduce, as suggested, the same rhythm 
for this individual element of review as for the general reporting mechanism pursuant 
to  Article  31  (2).  To  bring  out  this  integration  more  clearly  and  avoid  duplications 
the last two sentences of Article 31 (2a) are to be reworded as follows: 

"They  shall  notify  the  Commission  of  the  results  of  this  assessment  in  their  reports 
pursuant to paragraph 2. The Commission shall include this aspect in the reports to 
be adopted and published pursuant to paragraph 2". 

2.1.30  Amendment 101 

This  amendment  is  intended  to  introduce  a  political  appeal  to  Member  States  and 
social partners that responds to calls to give a new impulse to the issues of equal pay 
and parental leave as well as the availability of care facilities. The Commission can 
endorse this initiative and accept the amendment in its entirety. 

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2.1.31  Amendments 106 

This  amendment  aims  at  inserting  a  new  paragraph  to  make  clear  that,  as  in  every 
recast,  the  obligation  to  transpose  only  extends  to  those  provisions  that  imply  a 
the  predecessor  Directives.  The 
substantive  modification  as  compared 
Commission  can  accept  this  clarification,  subject  to  amending  the  wording  in  line 
with recital 29.  

to 

2.1.32  Amendment 107 

The new recital suggested in this amendment, taken together with the deletion of the 
reference to correlation tables in Article 33 (1) by amendment 105 (see point  2.2.6 
below), accurately reflects the legal situation under the inter-institutional agreement 
on better law-making whereby Member States are encouraged to supply correlation 
tables  with  the  transposing  legislation  without  being  legally  obliged  to  do  so.  It  is 
therefore acceptable for the Commission. 

2.1.33  Amendment 108 

This  amendment  restricts  the  language  of  this  paragraph  aimed  at  integrating  ECJ 
case-law to the criterion that was referred to as being solely decisive by the Court of 
Justice in all its decisions on the matter in question. The deleted text was of further 
assistance  in  the  cases  decided  but  it  may  be  considered  overly  restrictive  in  some 
respects, particularly with regard to the calculation of the pension by reference to the 
last  salary.  The  amendment  preserves  the  essence  of  the  Court's  jurisprudence  by 
requiring  that  the  benefits  are  paid  by  reason  of  the  employment  relationship  but 
leaves  sufficient  flexibility  to  the  Court  of  Justice  to  develop  the  criteria  further  if 
necessary. It can therefore be accepted as it stands. 

2.2. 

Amendment partially acceptable to the Commission 

2.2.1 

Amendment 5 

The clarification at the end of the recital that harassment also occurs in the context of 
access to employment, vocational training and promotion is in line with several other 
amendments accepted by the Commission (e.g. point 2.1.26). 

The  highlighting  of  ethnic  minority  women  as  a  particularly  vulnerable  group, 
however,  cannot  be  accepted.  Although  this  is  undoubtedly  a  possible  scenario  for 
multiple discrimination, the reference to this group as such does not imply any value 
added and raises the question why other situations of multiple discrimination are not 
mentioned.  

2.2.2 

Amendment 24 

The  new  last  sentence  on  the  exceptional  admissibility  of  prior  upper  limits  on 
compensation  is  acceptable  as  it  brings  the  text  of  the  recital  into  line  with  the 
wording  of  the  corresponding  Article  18  and  with  the  case-law  of  the  Court  of 
Justice.  

The  new  language  on  the  relationship  between  compensation  and  sanctions  is 
rejected. This proposal confuses compensation (awarded to the victim individually) 

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with sanctions (deterrence and penalisation of discrimination by the Member States). 
Two different provisions (Articles 18 and 26) deal with these two different issues. It 
would  be  misleading  to  create  the  impression  -  as  does  the  amendment  -  that 
compensation  is  not  itself  obligatory  and  that  Member  States  have  a  choice  of 
whether  or  not  they  want  to  guarantee  full  compensation  for  damages.  Article  18 
does not leave them such a choice. 

2.2.3 

Amendments 71, 72, 73, 81, 102 

These amendments have in common the objective of transforming the obligation of 
Member  States  to  encourage  certain  measures  to  be  taken  either  by  the  social 
partners  (promote  equality  between  women  and  men,  conclude  agreements  laying 
down anti-discrimination rules) or by employers (planned and systematic promotion 
of  equality,  prevention  of  discrimination)  into  an  obligation  to  ensure  that  such 
measures  are  taken..  This  modification  cannot  be  endorsed  as  it  would  amount  to 
considerable substantive changes going beyond what can be reasonably done within 
the  framework  of  a  recasting  exercise.  Besides,  all  the  provisions  in  question  were 
newly introduced by Directive 2002/73 which only enters into application in October 
2005  and  should  be  given  an  opportunity  to  apply  in  practice  before  the  regime  is 
changed.  As  far  as  the  social  partners  are  concerned  these  amendments  are  hardly 
reconcilable  with  the  fundamental  principle  of  the  autonomy  of  social  partners. 
Therefore, the terminology "ensure that" in amendments 71, 72 and 81 and "shall be 
required" in amendment 73 cannot be accepted. Only with regard to amendment 73 
this particular modification can partly be endorsed to the extent that the language is 
assimilated to those of the neighbouring paragraphs. Article 22 (4) should thus read: 

"To this end employers shall be encouraged … .  

Such information should include…" 

The  rest  of  the  new  language  in  the  second  sub-paragraph  of  Article  22  (4) 
introduced by amendment 73 can be accepted; it adds some more detail and precision 
to  the  description  of  the  information  whose  supply  would  be  desirable  but  is  not 
mandatory. 

With  regard  to  amendment  71  the  added  reference  to  the  promotion  of  flexible 
working arrangements can be accepted as an important field in which social partners 
are encouraged to take action. 

Concerning amendment 72, the language broadening the reference to the workplace 
can be accepted in principle but it should be worded in the same way as in parallel 
cases (see, e.g. points 2.1.26, 2.2.1), i.e. "in the workplace, in access to employment, 
vocational  training  and  promotion  at  work".  The  new  last  sentence  creating  an 
obligation  for  Member  States  to  conduct  awareness-raising  campaigns  is  rejected 
since such a new obligation exceeds the scope of a recast and is furthermore outside 
the context of this provision. 

Out of amendments 81 and 102 the use of the term "effective" can be taken on board 
as well as the enlarged reference to the workplace, the latter again subject to the same 
reformulation as indicated above for amendment 72 ("in the workplace, in access to 
employment, vocational training and promotion at work"). 

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2.2.4 

Amendment 76 

The new section incorporating "individual and collective" into the text is acceptable 
as  it  contributes  to  the  clarification  and  streamlining  of  the  wording.  A  broad 
reference to individual and collective contracts and agreements makes redundant the 
reference  to  some  other  items  in  the  original  text  that  are  clearly  covered  by  these 
terms and can thus be deleted. 

The reference to "full-time or part-time employment" and "job titles" does not serve 
any purpose in what is a list of types of legal sources which can be at the origin of 
discrimination and can therefore not be accepted. 

The deletion of the words "or may be" at the end of Article 24 (b) has to be rejected. 
The suggested wording departs from the established language in the predecessor or 
parallel  Directives  (2002/73,  2000/43,  2000/78).  The  difference  between  "shall  be" 
and  "may  be"  is  that  some  provisions  are  to  be  declared  as  being  invalid  ex  officio 
whilst  others  require  an  initiative  to  be  taken  by  a  complainant.  Provisions  of 
individual  contracts  in  breach  of  the  principle  of  equal  treatment  will  escape  the 
attention  of  courts  and  other  authorities  unless  a  victim  of  discrimination  lodges  a 
complaint or brings court action. It is sufficient and in fact the only realistic scenario 
to give citizens the opportunity ("may be") to have such provisions invalidated. The 
amendment would impose the obligation, impossible to honour, on Member States to 
detect  and  declare  the  nullity  of  all  discriminatory  provisions  including  in  all 
individual contracts of their own motion. 

In the light of the above Article 24 (b) should read as follows:  

"provisions  contrary  to  the  principle  of  equal  treatment  in  individual  or  collective 
contracts  or  agreements,  internal  rules  of  undertakings  or  rules  governing  the 
independent occupations and professions and workers' and employers' organisations 
or  any  other  arrangements  shall  be,  or  may  be,  declared  null  and  void  or  are 
amended;"  

2.2.5 

Amendment 84 

The  new  review  clause  of  the  parental  leave  Directive  in  paragraph  2  cannot  be 
accepted by the Commission. This modification would imply a substantive change to 
the parental leave Directive which does not form part of the recasting exercise and 
which  contains  a  different  provision  on  its  review.  It  would  also  give  rise  to 
difficulties concerning the specific role of the social partners in the review procedure 
pursuant to Articles 138 and 139 of the Treaty. 

Paragraph 1 of this new provision partially moves Article 3 (3) of the proposal to the 
horizontal provisions at the end of the Directive where one would usually expect this 
type  of  "without  prejudice"  clause.  The  Commission  can  accept  this  relocation  in 
principle  but  extends  this  reasoning  to  the  rest  of  Article  3  (2)  and  (3)  which  no 
longer  deserve  the  same  prominent  place  in  the  Directive  as  a  consequence  of  the 
deletion of Article 3 (1) (see point 2.1.20 above). 

As a result of the above considerations, Article 28a should read as follows: 

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"Relationship with Community and national provisions 

This  Directive  shall  be  without  prejudice  to  provisions  concerning  the 

1. 
protection of women, particularly as regards pregnancy and maternity. 

This  Directive  shall  be  without  prejudice  to  the  provisions  of  Directive 

2. 
96/34/EC and Directive 92/85/EEC." 

2.2.6 

Amendments 103, 104, 105 

These  amendments  set  the  deadlines  for  transposition,  communication  by  Member 
States of the information necessary for the Commission to draw up a report and for a 
review  of  the  operation  of  the  Directive.  These  deadlines  have  to  be  considered 
together  as  they  are  closely  interrelated  and  represent  the  different  steps  of  the 
transposition  and  review  mechanism.  It  can  be  accepted  to  keep  the  period  for 
transposition  to  two  years  (amendment  105)  given  the  limited  number  of 
modifications that need to be transposed as a result of this recast. It is not sufficient, 
however,  to  allow  only  one  further  year  for  Member  States  to  report  on  the 
application  of  the  Directive.  In  a  period  that  short  it  will  not  be  possible  to  collect 
practical experience to the extent that is indispensable with a view to drawing up a 
report that can make a significant contribution; the presentation of the reports is to be 
pushed back by one year. Therefore Article 31 (1) (amendment 103) has to read "By 
four years after the date of entry into force of this Directive …" and the period until a 
review  pursuant  to  Article  32  (amendment  104)  needs  to  be  extended  accordingly 
("By six years after the date of entry into force of this Directive …"). As far as the 
wording of the provisions in question is concerned, it needs to be taken into account 
that  concrete  dates  will  be  inserted  after  the  formal  adoption  of  the  Directive.  To 
make that clear the date should be left blank in the text of the Articles (e.g. "By …, 
the  Member  States  shall  communicate…"  in  the  case  of  amendment  103)  and 
accompanied by the footnote "two/four/six years after the date of the entry into force 
of this Directive" respectively. 

The  text  adopted  by  the  European  Parliament  in  amendment  105  deletes  the 
reference to correlation tables from Article 33 (1) without this being clearly indicated 
in  the  text  as  the  wording  of  the  initial  proposal  is  not  correctly  reproduced.  The 
Commission  can  accept  this  modification  in  connection  with  the  introduction  of  a 
new recital 31 (see point 2.1.32 above). 

2.3. 

Amendments not acceptable to the Commission 

2.3.1 

Amendment 3 

This amendment is intended to add the right to parental leave to the recital recalling 
the provisions of the Charter of Fundamental Rights of the European Union dealing 
with  gender  equality  (Articles  21  and  23).  Apart  from  the  fact  that  the  suggested 
additional text makes reference to a matter which is not dealt with in this Directive it 
is out of place in this recital which essentially paraphrases the material provisions of 
the  Charter  of  Fundamental  Rights.  Those  Articles,  however,  make  no  mention  of 
parental  leave  and  no  such  wrong  impression  should  be  created.  Therefore  the 
amendment is not acceptable.  

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2.3.2 

Amendments 12, 13, 100 

It  is  the  express  purpose  of  recitals  12  and  13  to  align  the  rules  governing 
information  on  the  use  of  sex-based  actuarial  factors  in  occupational  systems  of 
social  security  with  those  adopted  for  private  insurance  contracts  in  Directive 
2004/113. But the legal situation on the permissibility of such factors is not identical 
in those  two  areas. Unlike in Directive 2004/113 (that only  permits the use of sex-
based  actuarial  factors  on  the  condition  of  the  existence  of  relevant  and  accurate 
statistical data which has to be compiled, published and regularly updated) there are 
no  obligations  corresponding  to  these  recitals  in  the  enacting  terms.  Amendments 
aiming  at  introducing  the  same  regime  or  even  outright  prohibiting  the  use  of  sex-
based actuarial factors were rejected by the European Parliament. As a consequence, 
the  recitals  at  issue  here  do  not  serve  any  purpose.  The  same  must  be  said  for 
amendment 100 which recognises the value of the rules of Directive 2004/113 on the 
use of data but is unrelated to the content of this Directive. These amendments can 
thus not be accepted. 

2.3.3 

Amendment 29 

The  reasoning  underpinning  the  deletion  of  the  reference  to  non-verbal  conduct  in 
the  definition  of  sexual  harassment  that  there  is  no  difference  between  non-verbal 
and  physical  conduct  cannot  be  accepted.  Physical  conduct  could  be  interpreted  as 
requiring  physical  contact  not  including,  for  examples,  gestures.  The  current 
definition  is  the  result  of  negotiations  with  the  EP  on  Directive  2002/73  and 
consistent with that of Directive 2004/113 and should be retained. 

2.3.4 

Amendment 30 

This amendment that aims to newly introduce a definition of the term "promotion at 
work"  is  not  acceptable.  This  term  has  not  given  rise  to  any  difficulties  as  to  its 
interpretation.  It  is  superfluous  and  would  not  imply  any  value  added  to  define 
concepts  that  are  self-explanatory  such  as  this  one  and  the  other  areas  to  which 
Directive  76/207  applies  and  for  which  no  definition  exists  or  has  been  suggested 
('access to employment', 'vocational training' and 'working conditions'). 

2.3.5 

Amendment 36 

The  amendment  is  intended  to  transform  the  possibility  of  taking  measures  of 
positive action as defined in Article 141 (4) EC Treaty into an obligation of Member 
States and adds specific examples of areas  where such measures are to be taken as 
well as new language replacing the reference to "working life".  

Article 141 (4) EC Treaty makes it very clear that positive measures are admissible 
but not mandatory. Where primary law stipulates a discretionary power of Member 
States,  secondary  law  based  on  the  same  Article  cannot  impose  obligations  going 
beyond the Treaty text. Such a far-reaching substantive change would also go beyond 
what can be done within the framework of a recasting exercise. 

As  concerns  the  references  to  childcare  the  scope  of  application  of  this  Directive 
limited to employment and occupation excludes the field of childcare except in the 
relatively  few  cases  where  the  employer  offers  childcare  facilities.  Even  in  those 

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cases  the  promotion  of  affordable  childcare  and  care  for  other  dependent  persons 
does  not  qualify  as  a  positive  measure  as  defined  in  Article  141  (4)  as  long  as  no 
preferential  access  is  given  specifically  to  members  of  one  sex.  Keeping  this 
modification  would  thus  imply  a  risk  of  confusion  as  to  the  meaning  of  positive 
action.  

As  regards  the  new  wording  at  the  end  it  is  not  advisable  to  introduce  new 
terminology  in  an  Article  that  only  points  to  the  Treaty  which  uses  different 
language. Unlike the term "workplace" which was complemented in several places in 
the Directive (see points 2.1.26, 2.2.1) the reference to "working life" of Article 141 
(4) is sufficiently broad not to require further clarifying terminology. 

As  a  result,  the  wording  of  Article  14  of  the  initial  proposal  should  be  moved  to  a 
new Article 3a (see point 2.1.21 above) without any changes to its wording. 

2.3.6 

Amendment 53 

The amendment adds new language intended to refine the description on the scope of 
the principle of equal treatment with regard to access to employment and promotion. 
The new terminology has no value added; it would amount to duplication as well as 
to  an  overburdened  and  confusing  wording  of  the  paragraph.  It  is  therefore  not 
acceptable to the Commission. 

2.3.7 

Amendment 63 

The  amendment  newly  introduces  the  term  "remedies"  in  the  provision  on 
compensation  and  reparation  and  adds  a  reference  to  these  remedies  having  to  be 
available "in the event of breaches of the obligations under this Directive". The new 
text  does  not  add  anything  and  the  language  is  rather  unclear  and  redundant.  The 
reference  to  this  rule  applying  in  the  event  of  breaches  of  the  Directive  is 
unnecessary  as  the  text  already  refers  to  compensation  for  the  loss  and  damage 
sustained  "as  a  result  of  discrimination  on  grounds  of  sex".  The  use  of  the  term 
"remedies" and the mention being made of compensation and reparation as examples 
for  such  remedies  would  further  create  the  wrong  impression  that  Member  States 
could  introduce  other  remedies  than  compensation  or  reparation  although  these  are 
indispensable.  The  problem  is  comparable  to  the  one  set  out  in  some  detail  with 
regard to amendment 24 (see point 2.2.2 above). 

2.3.8 

Amendment 67 

The  objective  of  this  amendment  is  to  add  the  exchange  of  data  with  European 
bodies such as Gender Institute to the tasks of equality bodies. It is not advisable to 
make  reference  to  the  European  Institute  for  Gender  Equality,  the  only  imaginable 
corresponding  European  body  that  comes  to  mind,  as  this  institution  does  not  yet 
exist and its final shape and form is unknown at this stage. 

2.3.9 

Amendment 86 

The broadening of the reference to the "workplace" that can be endorsed in several 
other amendments (see, e.g. points 2.1.26, 2.2.1) cannot be accepted for Article 30. 
In this specific context the workplace is mentioned as a place in which the national 

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legislation  transposing  the  Directive  has  to  be  made  available  to  inform  workers 
about  their  rights.  Access  to  employment  and  vocational  training  and  promotion 
cannot be situated in space, information cannot be disseminated there.  

3. 

CONCLUSION 

By virtue of Article 250(2) of the EC Treaty, the Commission amends its proposal as 
described above. 

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