Communication from the Commission to the European Parliament pursuant to the second subparagraph of Article 251(2) of the EC Treaty concerning the common position of the Council on the adoption of 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)
Date: 2006-03-13
Institutions: European Commission
Subjects: drafting of EU law, employment policy, equal treatment, gender equality, labour market

COMMISSION OF THE EUROPEAN COMMUNITIES 

Brussels, 13.3.2006 
COM(2006) 108 final 

2004/0084 (COD) 

COMMUNICATION FROM THE COMMISSION 
TO THE EUROPEAN PARLIAMENT 

pursuant to the second subparagraph of Article 251(2) of the EC Treaty 

concerning the 

common position of the Council on the adoption of 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) 

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2004/0084 (COD) 

COMMUNICATION FROM THE COMMISSION 
TO THE EUROPEAN PARLIAMENT 

pursuant to the second subparagraph of Article 251(2) of the EC Treaty 

concerning the 

common position of the Council on the adoption of 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 

Date of transmission of the proposal to the EP and the Council 
(document COM(2004) 279 final – 2004/0084 (COD)): 

Date of the opinion of the European Economic and Social 
Committee: 

21.4.2004 

15.12.2004 

Date of the opinion of the European Parliament, first reading: 

6.7.2005 

Date of transmission of the amended proposal: 

Date of adoption of the common position: 

25.8.2005 

13.3.2006 

2. 

OBJECTIVE OF THE COMMISSION PROPOSAL 

The  objective  of  the  proposal  is  to  contribute  to  legal  certainty  and  clarity  with  regard  to 
implementation  of  the  principle  of  equal  treatment  between  men  and  women  in  matters  of 
employment and occupation, by bringing together in a single text the main provisions existing 
in this field, along with certain points arising from well-established case-law of the European 
Court of Justice.  

This  simplification  and  streamlining  will  make  the  Community  legislation  more  accessible 
and  readable,  both  for  legal  practitioners  and  for  the  general  public,  and  is  therefore  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 access 

to employment, vocational training and promotion, and working conditions; 

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

security schemes; 

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

The  proposal  is  not  simply  a  consolidation  exercise.  A  number  of  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 key concepts of equal treatment 
law. Furthermore, some of the horizontal provisions contained in the most recent Directives – 
for example, on the burden of proof – have explicitly been made applicable to occupational 
social  security  schemes.  In  practice,  the  case-law  of  the  Court  has  already  extended  these 
provisions to the principal features of occupational schemes. The main value of the proposal 
in that respect is thus to clarify the legal situation.  

3. 

COMMENTS ON THE COMMON POSITION 

This common position not only constitutes the current Council position, but also incorporates 
some of the European Parliament’s amendments at first reading. It reflects inter-institutional 
discussions which have allowed this compromise text to be identified. 

The Council's common position made numerous amendments to the Commission's proposal. 
The Commission is of the opinion that these modifications do not alter the objectives of the 
proposal. 

As far as the vast majority of the European Parliament's amendments adopted at first reading 
are  concerned,  the  Council's  common  position  fully  coincides  with  the  Commission's 
amended  proposal.  In  those  few  cases  indicated  below  where  the  common  position  differs 
from  the  Commission's  amended  proposal  the  text  now  put  forward  by  the  Council  is  the 
compromise solution reached in inter-institutional discussions. This compromise text is in line 
with the objectives of both the original and the amended proposal and therefore acceptable to 
the Commission. 

1. 

2. 

As  regards  several  recitals  newly  introduced  by  the  European  Parliament  and 
accepted  by  the  Commission  in  its  amended  proposal  relating  to  the  need  for 
Member  States  to  address  gender-based  wage  differentials  and  labour  market 
segregation  (recital  11),  to  develop  and  analyse  statistics  disaggregated  by  sex 
(recital 37) and to promote the raising of awareness of wage discrimination (recital 
38), the Council incorporated the notion of the necessity to continue these efforts in 
order to avoid creating the impression that these activities are not already ongoing. 
The  Commission  can  consent  to  this  modification  as  well  as  to  other  slight 
reformulations of recitals 11 and 37. 

In  its  amended  proposal  the  Commission  rejected  the  insertion  of  a  new 
paragraph (2)(d)  in  Article  20  adding  the  exchange  of  data  and  know-how  with 
corresponding European bodies such as the European Institute for Gender Equality to 
the tasks of the equality bodies to be established under that provision. This position 
was taken for technical reasons related to proper legislative drafting as no reference 
should  be  made  to  an  institution  that  does  not  yet  exist.  These  concerns  were 
accommodated in the new text by making mention of corresponding European bodies 

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3. 

4. 

5. 

6. 

such  as  any  future  European  Institute  for  Gender  Equality.  This  wording  can  be 
accepted. 

With regard to Article 21(1) on social dialogue, the Council accepted the European 
Parliament's  amendment  broadening  the  reference  to  the  term  “workplace”  as 
reformulated by the Commission but refused to include new wording on research by 
the social partners being carried out on the basis of the development and analysis of 
gender-specific  data.  The  Commission  accepted  that  element  of  the  Parliamentary 
amendment  but  can  subscribe  to  the  Council's  reasoning  that  a  reference  to  data  or 
statistics  in  this  particular  context  could  unduly  limit  the  concept  of  research  by 
restricting  it  to  quantitative  aspects  requiring  statistical  information  and  excluding 
the qualitative dimension which does not necessarily rely on such material. 

Still  in  relation  to  the  provision  on  social  dialogue,  more  specifically  Article  21(4) 
indicating  that  information  provided  by  the  employer  on  equal  treatment  in  the 
undertaking is one of the means of the promotion of equal treatment in a planned and 
systematic  way,  as  provided  for  in  Article  21(3),  the  Council  endorsed  the 
Commission's  suggestion  to  align  the  wording  with  the  other  paragraphs  by 
stipulating that employers shall (instead of should) be encouraged to undertake such 
efforts. It did not accept the further proposal in the amended Commission proposal to 
use the term “should” in the second subparagraph implying a stronger exhortation to 
make available the specific information mentioned there and reverted to the wording 
“may”  from  the  original  proposal.  It  did,  however,  incorporate,  subject  to  a 
clarifying reformulation, the proposal by the European Parliament, seconded by the 
Commission,  to  be  more  detailed  on  the  issues  on  which  to  make  information 
available. In its entirety, this compromise solution is acceptable to the Commission. 

The  Council  agreed  to  move  the  obligation  for  Member  States  to  submit  a  report 
containing  an  assessment  of  exceptions  to  the  principle  of  equal  treatment  on  the 
grounds  that  a  characteristic  related  to  sex  constitutes  a  genuine  and  determining 
occupational requirement from Article 13 to Article 31, the general provision dealing 
with  reporting  obligations,  as  a  new  paragraph  3.  It  changed  the  frequency  of  such 
reporting from every four years, as suggested by the European Parliament and by the 
Commission in its amended proposal, to "periodically but at least every eight years". 
This  can  be  accepted  as  it  still  represents  some  progress  compared  to  the  current 
requirement of periodical assessment without any fixed deadlines. 

Concerning  the  set  of  interrelated  deadlines  for  transposition  of  the  Directive 
(Article 33),  for  the  implementation  reports  by  the  Member  States  (Article  31)  and 
for  a  review  of  the  operation  of  the  Directive  by  the  Commission  (Article  32),  the 
Council took the middle ground between the different positions of the institutions. It 
accepted  a  short  transposition  period  of  two  years  as  called  for  by  the  European 
Parliament and by the Commission in its amended proposal in principle, but included 
the  possibility  for  Member  States  facing  particular  difficulties  to  extend  the 
transposition  period  to  three  years.  Uniform  deadlines  were  established  for  the 
implementation  reports  and  the  review  at  four  and  a  half  years  and  six  and  a  half 
years after entry into force of the Directive respectively.  

The  Council  further  introduced  some  changes  unrelated  to  the  European  Parliament's 
amendments.  These  modifications  are  of  a  formal  and  technical  nature  and  do  not  alter  the 
substance of the proposal. They include, for example, the merger of Articles 19 and 20 of the 

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initial  proposal  into  one  single  provision  on  the  burden  of  proof  in  discrimination  cases 
(Article 19) and the shortening of the headings of Chapters 1, 2 and 3 of Title II as well as 
Chapter  2  of  Title  III.  To  create  a  clearer  structure,  the  Council  converted  Title  IV  of  the 
Commission's  proposal  into  Chapter  3  of  Title  III  under  the  heading  "General  horizontal 
provisions". The Council also inserted a new recital 41 that paraphrases paragraph 34 of the 
Inter-institutional agreement on better law-making.  

4. 

CONCLUSION 

For the reasons set out above, the Commission considers that the common position in no way 
alters  the  aims  and  approach  of  its  proposal  and  can  therefore  support  it,  all  the  more  so 
because  the  common  position  takes  due  account  of  amendments  proposed  by  the  European 
Parliament  at  its  first  reading  and  of  the  amended  Commission  proposal.  It  is  the  result  of 
inter-institutional discussions which have produced this compromise text. 

5. 

COMMISSION STATEMENT 

As one element of the overall compromise solution reached in inter-institutional discussions, 
both the Commission and the Council made separate statements at the time of adoption of the 
common position (see Annexes I and II).  

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ANNEX I 

Commission statement 

The  Commission  is  committed  to  the  promotion  of  parental  leave  as  an  instrument  of 
paramount importance in order to achieve full equality between men and women in working 
life. It is determined to ensure that the conditions of reconciliation between work and private 
life are improved through the proper implementation of the parental leave Directive and the 
monitoring of its sufficiency and effectiveness. 

Therefore the Commission intends to designate the area of reconciliation between work and 
private life as one of its priority objectives in the roadmap for equality between women and 
men which has been adopted on 1st of March 2006 (COM(2006) 92 final). In that context it is 
foreseen  to  carry  out  an  analysis  of  the  situation  concerning  all  areas  of  reconciliation 
including  parental  leave,  flexible  working  arrangements  and  care  facilities  with  a  view  to 
developing policy responses where appropriate. The initiation of an exchange of views with 
the social partners will constitute an element of these activities. 

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ANNEX II 

Council statement 

The  Council  shares  the  European  Parliament's  commitment  to  improving  the  situation 
regarding  reconciliation  between  work  and  private  life  in  order  to  achieve  equality  between 
women and men in working life. It is therefore pleased that the European Commission plans 
to take up the theme of women's employment and work-life balance as the central part of its 
Third  Annual  Report  to  Heads  of  State  and  Government  on  equality  between  women  and 
men, to be presented to the Spring European Council in March 2006. 

In this context, the Council takes note of the importance that the European Parliament attaches 
to the subject of parental leave. 

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