Directive 2006/54/EC of the European Parliament and of the Council of  5 July 2006  on the implementation of the principle of equal opportunities and equal treatment of men and women in matters of employment and occupation (recast)
Date: 2006-07-05
Institutions: Council of the European Union, European Parliament
Subjects: anti-discriminatory measure, employment policy, equal treatment, gender equality, social security, working conditions

26.7.2006

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DIRECTIVE 2006/54/EC OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL

of 5 July 2006

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

THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE
EUROPEAN UNION,

(2)

Having regard to the Treaty establishing the European Commu-
nity, and in particular Article 141(3) thereof,

Having regard to the proposal from the Commission,

Having regard to the opinion of the European Economic and
Social Committee (1),

Acting in accordance with the procedure laid down in Article 251
of the Treaty (2),

Whereas:

(1) Council Directive 76/207/EEC of 9 February 1976 on the
implementation of the principle of equal treatment for men
and women as regards access to employment, vocational
training and promotion, and working conditions (3) and
Council Directive 86/378/EEC of 24 July 1986 on the
implementation of the principle of equal treatment for men
and women in occupational social security schemes (4) have
been significantly amended (5). Council Directive 75/117/
EEC of 10 February 1975 on the approximation of the laws
of the Member States relating to the application of the
principle of equal pay for men and women (6) and
Council Directive 97/80/EC of 15 December 1997 on the
burden of proof in cases of discrimination based on sex (7)
also contain provisions which have as their purpose the
implementation of the principle of equal treatment between
men and women. Now that new amendments are being
made to the said Directives, it is desirable, for reasons of
clarity, that the provisions in question should be recast by
bringing together in a single text the main provisions
existing in this field as well as certain developments arising
out of the case-law of the Court of Justice of the European
Communities (hereinafter
referred to as the Court of
Justice).

(1) OJ C 157, 28.6.2005, p. 83.
(2) Opinion of

the European Parliament of 6 July 2005 (not yet
published in the Official Journal), Council Common Position of
10 March 2006(OJ C 126 E, 30.5.2006, p. 33) and Position of the
European Parliament of 1 June 2006 (not yet published in the
Official Journal).

(3) OJ L 39, 14.2.1976, p. 40. Directive as amended by Directive 2002/
73/EC of the European Parliament and of the Council (OJ L 269,
5.10.2002, p. 15).

(4) OJ L 225, 12.8.1986, p. 40. Directive as amended by Directive 96/

97/EC (OJ L 46, 17.2.1997, p. 20).

(5) See Annex I Part A.
(6) OJ L 45, 19.2.1975, p. 19.
(7) OJ L 14, 20.1.1998, p. 6. Directive as amended by Directive 98/52/

EC (OJ L 205, 22.7.1998, p. 66).

Equality between men and women is a fundamental
principle of Community law under Article 2 and Article 3
(2) of the Treaty and the case-law of the Court of Justice.
Those Treaty provisions proclaim equality between men
and women as a ‘task’ and an ‘aim’ of the Community and
impose a positive obligation to promote it
its
activities.

in all

(3)

The Court of Justice 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 the rights which it seeks to safeguard, it also
applies to discrimination arising from the gender reassign-
ment of a person.

(4) Article 141(3) of the Treaty now provides a specific legal
basis for the adoption of Community measures to ensure
the application of the principle of equal opportunities and
equal treatment in matters of employment and occupation,
including the principle of equal pay for equal work or work
of equal value.

(5) Articles 21 and 23 of the Charter of Fundamental Rights of
the European Union also prohibit any discrimination on
grounds of sex and enshrine the right to equal treatment
between men and women in all areas, including employ-
ment, work and pay.

(6) Harassment and sexual harassment are contrary to the
principle of equal treatment between men and women and
constitute discrimination on grounds of
the
purposes of this Directive. These forms of discrimination
occur not only in the workplace, but also in the context of
access to employment, vocational training and promotion.
They should therefore be prohibited and should be subject
to effective, proportionate and dissuasive penalties.

sex for

(7)

(8)

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

in particular,

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 case-law of the Court of Justice
constitutes an important aspect of the principle of equal
treatment between men and women and an essential and

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indispensable part of the acquis communautaire, including the
case-law of the Court concerning sex discrimination. It is
therefore appropriate to make further provision for its
implementation.

(9)

In accordance with settled case-law of the Court of Justice,
in order to assess whether workers are performing the same
work or work of equal value,
it should be determined
whether, having regard to a range of factors including the
nature of the work and training and working conditions,
those workers may be considered to be in a comparable
situation.

(10) The Court of

Justice has established that,

in certain
circumstances, the principle of equal pay is not limited to
situations in which men and women work for the same
employer.

(11) The Member States,

in collaboration with the social
partners, should continue to address the problem of the
continuing gender-based wage differentials and marked
gender segregation on the labour market by means such as
flexible working time arrangements which enable both men
and women to combine family and work commitments
more successfully. This could also include appropriate
parental leave arrangements which could be taken up by
either parent as well as the provision of accessible and
affordable child-care facilities and care for dependent
persons.

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

treatment

(13)

In its judgment of 17 May 1990 in Case C-262/88 (1), the
Court of Justice determined that all forms of occupational
pension constitute an element of pay within the meaning of
Article 141 of the Treaty.

relationship with the public

(14) Although the concept of pay within the meaning of
the Treaty does not encompass social
Article 141 of
security benefits, it is now clearly established that a pension
scheme for public servants falls within the scope of the
principle of equal pay if the benefits payable under the
scheme are paid to the worker by reason of his/her
employer,
employment
notwithstanding the fact that such scheme forms part of
a general statutory scheme. According to the judgments of
the Court of Justice in Cases C-7/93 (2) and C-351/00 (3),
that condition will be satisfied if
the pension scheme
concerns a particular category of workers and its benefits
are directly related to the period of service and calculated by
reference to the public servant's final salary. For reasons of
clarity, it is therefore appropriate to make specific provision
to that effect.

(1) C-262/88: Barber v Guardian Royal Exchange Assurance Group

(1990 ECR I‑1889).

(2) C-7/93: Bestuur van het Algemeen Burgerlijk Pensioenfonds v G. A.

Beune (1994 ECR I‑4471).

(3) C-351/00: Pirkko Niemi (2002 ECR I-7007).

(15) The Court of

Justice has confirmed that whilst

the
contributions of male and female workers to a defined-
benefit pension scheme are covered by Article 141 of the
Treaty, any inequality in employers' contributions paid
under funded defined-benefit schemes which is due to the
use of actuarial factors differing according to sex is not to
be assessed in the light of that same provision.

(16) By way of example, in the case of funded defined‑benefit
schemes, certain elements, such as conversion into a capital
sum of part of a periodic pension, transfer of pension
rights, a reversionary pension payable to a dependant in
return for the surrender of part of a pension or a reduced
pension where the worker opts to take earlier retirement,
may be unequal where the inequality of the amounts results
from the effects of the use of actuarial factors differing
according to sex at the time when the scheme's funding is
implemented.

(17)

It is well established that benefits payable under occupa-
tional social security schemes are not to be considered as
remuneration insofar as they are attributable to periods of
employment prior to 17 May 1990, except in the case of
workers or those claiming under them who initiated legal
proceedings or brought an equivalent claim under the
applicable national
law before that date. It is therefore
necessary to limit the implementation of the principle of
equal treatment accordingly.

(18) The Court of Justice has consistently held that the Barber
Protocol (4) does not affect the right to join an occupational
pension scheme and that the limitation of the effects in
time of the judgment in Case C-262/88 does not apply to
the right to join an occupational pension scheme. The
Court of Justice also ruled that the national rules relating to
time limits for bringing actions under national law may be
relied on against workers who assert their right to join an
occupational pension scheme, provided that they are not
less favourable for that type of action than for similar
actions of a domestic nature and that they do not render
rights conferred by Community law
the exercise of
Justice has also
impossible in practice. The Court of
pointed out
that a worker can claim
retroactively to join an occupational pension scheme does
not allow the worker to avoid paying the contributions
relating to the period of membership concerned.

the fact

that

(19) Ensuring equal access to employment and the vocational
training leading thereto is fundamental to the application of
the principle of equal treatment of men and women in
matters of employment and occupation. Any exception to
this principle
limited to those
occupational activities which necessitate the employment
of a person of a particular sex by reason of their nature or
the context in which they are carried out, provided that the
objective sought
is legitimate and complies with the
principle of proportionality.

should therefore be

(4) Protocol 17 concerning Article 141 of the Treaty establishing the

European Community (1992).

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(20) This Directive does not prejudice freedom of association,
including the right to establish unions with others and to
join unions to defend one's interests. Measures within the
the Treaty may include
meaning of Article 141(4) of
membership or
the activity of
the continuation of
organisations or unions whose main objective is the
promotion, in practice, of the principle of equal treatment
between men and women.

(21) The prohibition of discrimination should be without
prejudice to the maintenance or adoption of measures
intended to prevent or compensate for disadvantages
suffered by a group of persons of one sex. Such measures
permit organisations of persons of one sex where their
main object is the promotion of the special needs of those
persons and the promotion of equality between men and
women.

(22)

In accordance with Article 141(4) of the Treaty, with a view
to ensuring full equality in practice between men and
women in working life, the principle of equal treatment
does not prevent Member States from maintaining or
adopting measures providing for specific advantages in
order to make it easier for the under-represented sex to
pursue a vocational activity or to prevent or compensate for
disadvantages in professional careers. Given the current
situation and bearing in mind Declaration No 28 to the
Amsterdam Treaty, Member States should,
in the first
instance, aim at improving the situation of women in
working life.

(23)

It is clear from the case-law of the Court of Justice that
unfavourable treatment of a woman related to pregnancy or
maternity constitutes direct discrimination on grounds of
sex. Such treatment should therefore be expressly covered
by this Directive.

(24) The Court of

Justice has consistently recognised the
legitimacy, as regards the principle of equal treatment, of
protecting a woman's biological condition during preg-
nancy and maternity and of
introducing maternity
protection measures as a means to achieve substantive
equality. This Directive should therefore be without
prejudice to Council Directive 92/85/EEC of 19 October
1992 on the introduction of measures to encourage
improvements in the safety and health at work of pregnant
workers and workers who have recently given birth or are
breastfeeding (1). This Directive should further be without
prejudice to Council Directive 96/34/EC of 3 June 1996 on
the framework agreement on parental leave concluded by
UNICE, CEEP and the ETUC (2).

(25) For reasons of clarity, it is also appropriate to make express
provision for the protection of the employment rights of
women on maternity leave and in particular their right to
return to the same or an equivalent post, to suffer no
detriment in their terms and conditions as a result of taking
in
such leave and to benefit

from any improvement

(1) OJ L 348, 28.11.1992, p. 1.
(2) OJ L 145, 19.6.1996, p. 4. Directive as amended by Directive 97/75/

EC (OJ L 10, 16.1.1998, p. 24).

working conditions to which they would have been entitled
during their absence.

(26)

In the Resolution of the Council and of the Ministers for
Employment and Social Policy, meeting within the Council,
of 29 June 2000 on the balanced participation of women
and men in family and working life (3), Member States were
encouraged to consider examining the scope for their
respective legal systems to grant working men an individual
to paternity leave, while
and non‑transferable
maintaining their rights relating to employment.

right

(27) Similar considerations apply to the granting by Member
States to men and women of an individual and non-
transferable right to leave subsequent to the adoption of a
child. 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.

(28) The effective implementation of

the principle of equal
treatment requires appropriate procedures to be put in
place by the Member States.

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

(30) The adoption of rules on the burden of proof plays a
significant role in ensuring that the principle of equal
treatment can be effectively enforced. As the Court of
Justice has held, provision should therefore be made to
ensure that the burden of proof shifts to the respondent
when there is a prima facie case of discrimination, except in
relation to proceedings in which it is for the court or other
is
competent national body to investigate the facts.
however necessary to clarify that the appreciation of the
facts from which it may be presumed that there has been
direct or indirect discrimination remains a matter for the
relevant national body in accordance with national law or
practice. Further, it is for the Member States to introduce, at
any appropriate stage of the proceedings, rules of evidence
which are more favourable to plaintiffs.

It

(31) With a view to further improving the level of protection
offered by this Directive, associations, organisations and
other legal entities should also be empowered to engage in
proceedings, as the Member States so determine, either on
behalf or in support of a complainant, without prejudice to
national rules of procedure concerning representation and
defence.

(32) Having regard to the fundamental nature of the right to
effective legal protection, it is appropriate to ensure that
workers continue to enjoy such protection even after the
relationship giving rise to an alleged breach of the principle

(3) OJ C 218, 31.7.2000, p. 5.

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of equal treatment has ended. An employee defending or
giving evidence on behalf of a person protected under this
Directive should be entitled to the same protection.

(41)

(33)

the principle of equal

It has been clearly established by the Court of Justice that in
order to be effective,
treatment
implies that the compensation awarded for any breach must
be adequate in relation to the damage sustained.
It is
therefore appropriate to exclude the fixing of any prior
for such compensation, except where the
upper limit
employer can prove that the only damage suffered by an
applicant as a result of discrimination within the meaning
of
job
application into consideration.

this Directive was the refusal

to take his/her

(34)

In order to enhance the effective implementation of the
principle of equal
should
promote dialogue between the social partners and, within
the framework of national practice, with non-governmental
organisations.

treatment, Member States

In accordance with paragraph 34 of the Interinstitutional
agreement on better law‑making (1), Member States are
encouraged to draw up, for themselves and in the interest of
the Community, their own tables, which will, as far as
possible,
illustrate the correlation between this Directive
and the transposition measures and to make them public,

HAVE ADOPTED THIS DIRECTIVE:

TITLE I

GENERAL PROVISIONS

Article 1

Purpose

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

(35) Member States should provide for effective, proportionate
and dissuasive penalties for breaches of the obligations
under this Directive.

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

(36) Since the objectives of this Directive cannot be sufficiently
achieved by the Member States and can therefore be better
achieved at Community level, the Community may adopt
measures in accordance with the principle of subsidiarity as
set out in Article 5 of the Treaty. In accordance with the
principle of proportionality, as set out in that Article, this
Directive does not go beyond what is necessary in order to
achieve those objectives.

(37) For the sake of a better understanding of the different
treatment of men and women in matters of employment
and occupation, comparable statistics disaggregated by sex
should continue to be developed, analysed and made
available at the appropriate levels.

(38) Equal

treatment of men and women in matters of
employment and occupation cannot be restricted to
legislative measures. Instead, the European Union and the
Member States should continue to promote the raising of
public awareness of wage discrimination and the changing
of public attitudes, involving all parties concerned at public
to the greatest possible extent. The
and private level
dialogue between the social partners could play an
important role in this process.

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

(40) This Directive

should be without prejudice

to the
obligations of the Member States relating to the time limits
for transposition into national law and application of the
Directives set out in Annex I, Part B.

(a)

to employment,

access
vocational training;

including promotion, and to

(b) working conditions, including pay;

(c)

occupational social security schemes.

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

Article 2

Definitions

For the purposes of this Directive, the following definitions

1.
shall apply:

(a)

(b)

(c)

‘direct discrimination’: where one person is treated less
favourably on grounds of sex than another is, has been or
would be treated in a comparable situation;

‘indirect discrimination’: where an apparently neutral
provision, criterion or practice would put persons of one
sex at a particular disadvantage compared with persons of
the other sex, unless that provision, criterion or practice is
objectively justified by a legitimate aim, and the means of
achieving that aim are appropriate and necessary;

‘harassment’: where unwanted conduct related to the sex of
a person occurs with the purpose or effect of violating the
dignity of a person, and of creating an intimidating, hostile,
degrading, humiliating or offensive environment;

(1) OJ C 321, 31.12.2003, p. 1.

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(d)

(e)

(f)

‘sexual harassment’: where any form of unwanted verbal,
non-verbal or physical conduct of a sexual nature occurs,
with the purpose or effect of violating the dignity of a
person, in particular when creating an intimidating, hostile,
degrading, humiliating or offensive environment;

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

‘occupational social security schemes’: schemes not gov-
erned by Council Directive 79/7/EEC of 19 December 1978
on the progressive implementation of the principle of equal
for men and women in matters of social
treatment
security (1) whose purpose is to provide workers, whether
employees or self-employed, in an undertaking or group of
undertakings, area of economic activity, occupational sector
or group of sectors with benefits intended to supplement
the benefits provided by statutory social security schemes
or to replace them, whether membership of such schemes
is compulsory or optional.

TITLE II

SPECIFIC PROVISIONS

CHAPTER 1

Equal pay

Article 4

Prohibition of discrimination

For the same work or for work to which equal value is attributed,
direct and indirect discrimination on grounds of sex with regard
to all aspects and conditions of remuneration shall be eliminated.

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

CHAPTER 2

2.

For the purposes of this Directive, discrimination includes:

Equal treatment in occupational social security schemes

(a)

harassment and sexual harassment, as well as any less
favourable treatment based on a person's rejection of or
submission to such conduct;

(b)

instruction to discriminate against persons on grounds of
sex;

Article 5

Prohibition of discrimination

Without prejudice to Article 4, there shall be no direct or indirect
discrimination on grounds of sex in occupational social security
schemes, in particular as regards:

(a)

the scope of such schemes and the conditions of access to
them;

(c)

any less favourable treatment of a woman related to
pregnancy or maternity leave within the meaning of
Directive 92/85/EEC.

(b)

the obligation to contribute and the calculation of
contributions;

Article 3

Positive action

(c)

calculation of benefits,

the
including supplementary
benefits due in respect of a spouse or dependants, and
the conditions governing the duration and retention of
entitlement to benefits.

Article 6

Personal scope

Member States may maintain or adopt measures within the
meaning of Article 141(4) of the Treaty with a view to ensuring
full equality in practice between men and women in working life.

(1) OJ L 6, 10.1.1979, p. 24.

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

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Article 7

Material scope

1. This Chapter applies to:

(a)

occupational
protection against the following risks:

social

security schemes which provide

(i)

sickness,

(ii)

invalidity,

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

Article 9

(iii) old age, including early retirement,

Examples of discrimination

(iv)

industrial accidents and occupational diseases,

(v)

unemployment;

(b)

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

2. This Chapter also applies to pension schemes for a particular
category of worker such as that of public servants if the benefits
payable under the scheme are paid by reason of the employment
relationship with the public employer. The fact that such a
scheme forms part of a general statutory scheme shall be without
prejudice in that respect.

Article 8

Exclusions from the material scope

1. This Chapter does not apply to:

(a)

individual contracts for self-employed persons;

(b)

single-member schemes for self-employed persons;

Provisions contrary to the principle of equal treatment shall

1.
include those based on sex, either directly or indirectly, for:

(a)

determining the persons who may participate in an
occupational social security scheme;

(b)

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

(c)

(d)

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

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

(e)

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

(c)

(d)

insurance contracts to which the employer is not a party, in
the case of workers;

(f)

fixing different retirement ages;

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

(i)

either additional benefits,

(ii)

or a choice of date on which the normal benefits for
self-employed persons will start, or a choice between
several benefits;

(e)

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

(g)

(h)

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

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

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(i)

setting different levels for workers' contributions;

(j)

setting different levels for employers' contributions, except:

(i)

(ii)

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

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

(k)

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

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

Article 10

Implementation as regards self-employed persons

1. Member States shall take the necessary steps to ensure that
the provisions of occupational social security schemes for self-
employed persons contrary to the principle of equal treatment
are revised with effect from 1 January 1993 at the latest or for
Member States whose accession took place after that date, at the
date that Directive 86/378/EEC became applicable in their
territory.

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

Article 11

Possibility of deferral as regards self-employed persons

regards occupational

As
self-
social
employed persons, Member States may defer compulsory
application of the principle of equal treatment with regard to:

security schemes

for

(a)

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

either until the date on which such equality is achieved
in statutory schemes,

(i)

(ii)

(b)

(c)

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

the application of Article 9(1)(i) in relation to the use of
actuarial calculation factors, until 1 January 1999 or for
Member States whose accession took place after that date
until the date that Directive 86/378/EEC became applicable
in their territory.

Article 12

Retroactive effect

social

1. Any measure implementing this Chapter, as regards workers,
shall cover all benefits under occupational
security
schemes derived from periods of employment subsequent to
17 May 1990 and shall apply retroactively to that date, without
prejudice to workers or those claiming under them who have,
raised an
before that date,
equivalent claim under national
the
implementation measures shall apply retroactively to 8 April
1976 and shall cover all the benefits derived from periods of
employment after that date. For Member States which acceded to
the Community after 8 April 1976, and before 17 May 1990, that
date shall be replaced by the date on which Article 141 of the
Treaty became applicable in their territory.

initiated legal proceedings or

In that event,

law.

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

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

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

Article 13

Flexible pensionable age

or, at the latest, until such equality is prescribed by a
directive;

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

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CHAPTER 3

Equal treatment as regards access to employment, vocational
training and promotion and working conditions

end of such leave, they are entitled to return to their jobs or to
equivalent posts on terms and conditions which are no less
favourable to them, and to benefit from any improvement in
working conditions to which they would have been entitled
during their absence.

Article 14

Prohibition of discrimination

1. There shall be no direct or indirect discrimination on
grounds of sex in the public or private sectors, including public
bodies, in relation to:

(a)

(b)

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

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

training, advanced vocational

(c)

employment and working conditions, including dismissals,
as well as pay as provided for in Article 141 of the Treaty;

(d) membership of, and involvement in, an organisation of
workers or employers, or any organisation whose members
carry on a particular profession,
including the benefits
provided for by such organisations.

2. Member States may provide, as regards access to employ-
ment including the training leading thereto, that a difference of
treatment which is based on a characteristic related to sex shall
not constitute discrimination where, by reason of the nature of
the particular occupational activities concerned or of the context
in which they are carried out, such a characteristic constitutes a
genuine and determining occupational requirement, provided
that its objective is legitimate and the requirement is propor-
tionate.

Article 15

Return from maternity leave

TITLE III

HORIZONTAL PROVISIONS

CHAPTER 1

Remedies and enforcement

S e c t i o n 1

R e m e d i e s

Article 17

Defence of rights

1. 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 to
all persons who consider themselves wronged by failure to apply
the
treatment
the principle of equal
relationship in which the discrimination is alleged to have
occurred has ended.

to them, even after

2. Member States shall ensure that associations, organisations
or other legal entities which have, in accordance with the criteria
laid down by their national law, a legitimate interest in ensuring
that the provisions of this Directive are complied with, may
engage, either on behalf or in support of the complainant, with
his/her approval, in any judicial and/or administrative procedure
provided for the enforcement of obligations under this Directive.

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

A woman on maternity leave shall be entitled, after the end of
her period of maternity leave, to return to her job or to an
equivalent post on terms and conditions which are no less
favourable to her and to benefit from any improvement in
working conditions to which she would have been entitled
during her absence.

Article 18

Compensation or reparation

Article 16

Paternity and adoption leave

This Directive is without prejudice to the right of Member States
to recognise distinct rights to paternity and/or adoption leave.
Those Member States which recognise such rights shall take the
necessary measures to protect working men and women against
dismissal due to exercising those rights and ensure that, at the

Member States shall introduce into their national legal systems
such measures as are necessary to ensure real and effective
compensation or reparation as the Member States so determine
for the loss and damage sustained by a person injured as a result
of discrimination on grounds of sex, in a way which is dissuasive
and proportionate to the damage suffered. Such compensation or
reparation may not be restricted by the fixing of a prior upper
limit, except in cases where the employer can prove that the only
damage suffered by an applicant as a result of discrimination
within the meaning of this Directive is the refusal to take his/her
job application into consideration.

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S e c t i o n 2

B u r d e n o f p r o o f

Article 19

Burden of proof

1. Member States shall take such measures as are necessary, in
accordance with their national judicial systems, to ensure that,
when persons who consider themselves wronged because the
principle of equal treatment has not been applied to them
establish, before a court or other competent authority, facts from
which it may be presumed that there has been direct or indirect
discrimination, it shall be for the respondent to prove that there
has been no breach of the principle of equal treatment.

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

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

4.

Paragraphs 1, 2 and 3 shall also apply to:

(a)

(b)

the situations covered by Article 141 of the Treaty and,
insofar as discrimination based on sex is concerned, by
Directives 92/85/EEC and 96/34/EC;

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

5. This Article shall not apply to criminal procedures, unless
otherwise provided by the Member States.

CHAPTER 2

Promotion of equal treatment — dialogue

Article 20

Equality bodies

1. Member States shall designate and make the necessary
arrangements for a body or bodies for the promotion, analysis,
treatment of all persons
monitoring and support of equal
without discrimination on grounds of sex. These bodies may
form part of agencies with responsibility at national level for the
defence of human rights or the safeguard of individuals' rights.

of discrimination in pursuing their complaints about
discrimination;

conducting independent surveys concerning discrimina-
tion;

publishing independent reports and making recommenda-
tions on any issue relating to such discrimination;

at the appropriate level exchanging available information
with corresponding European bodies such as any future
European Institute for Gender Equality.

(b)

(c)

(d)

Article 21

Social dialogue

1. Member States shall, in accordance with national traditions
and practice, take adequate measures to promote social dialogue
between the social partners with a view to fostering equal
treatment, including, for example, through the monitoring of
practices in the workplace, in access to employment, vocational
training and promotion, as well as through the monitoring of
collective agreements, codes of conduct, research or exchange of
experience and good practice.

2. Where consistent with national
traditions and practice,
Member States shall encourage the social partners, without
prejudice to their autonomy, to promote equality between men
and women, and flexible working arrangements, with the aim of
facilitating the reconciliation of work and private life, and to
conclude, at the appropriate level, agreements laying down anti-
discrimination rules in the fields referred to in Article 1 which
fall within the scope of collective bargaining. These agreements
shall respect the provisions of this Directive and the relevant
national implementing measures.

in accordance with national

3. Member States shall,
law,
to
collective agreements or practice, encourage employers
promote equal treatment for men and women in a planned
and systematic way in the workplace, in access to employment,
vocational training and promotion.

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

Such information may include an overview of the proportions of
men and women at different levels of the organisation; their pay
and pay differentials; and possible measures to improve the
situation in cooperation with employees' representatives.

Article 22

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

Dialogue with non‑governmental organisations

(a) without prejudice to the right of victims and of associa-
tions, organisations or other legal entities referred to in
Article 17(2), providing independent assistance to victims

Member States shall encourage dialogue with appropriate non-
governmental organisations which have, in accordance with their
national law and practice, a legitimate interest in contributing to

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26.7.2006

the fight against discrimination on grounds of sex with a view to
promoting the principle of equal treatment.

Article 26

CHAPTER 3

General horizontal provisions

Article 23

Compliance

Member States shall take all necessary measures to ensure that:

Prevention of discrimination

Member States shall encourage, in accordance with national law,
collective agreements or practice, employers and those respon-
sible for access to vocational training to take effective measures
to prevent all forms of discrimination on grounds of sex, in
particular harassment and sexual harassment in the workplace, in
access to employment, vocational training and promotion.

Article 27

Minimum requirements

(a)

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

1. Member States may introduce or maintain provisions which
are more favourable to the protection of the principle of equal
treatment than those laid down in this Directive.

(b)

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;

Implementation of this Directive shall under no circum-
2.
stances be sufficient grounds for a reduction in the level of
protection of workers in the areas to which it applies, without
prejudice to the Member States' right to respond to changes in
the situation by introducing laws, regulations and administrative
provisions which differ from those in force on the notification of
this Directive, provided that the provisions of this Directive are
complied with.

(c)

social

occupational
security schemes containing such
provisions may not be approved or extended by adminis-
trative measures.

Article 28

Article 24

Victimisation

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

Relationship to Community and national provisions

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

2. This Directive shall be without prejudice to the provisions of
Directive 96/34/EC and Directive 92/85/EEC.

Article 29

Gender mainstreaming

Article 25

Penalties

Member States shall actively take into account the objective of
equality between men and women when formulating and
implementing laws, regulations, administrative provisions, poli-
cies and activities in the areas referred to in this Directive.

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

Article 30

Dissemination of information

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

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TITLE IV

FINAL PROVISIONS

Article 31

Reports

1. By 15 February 2011, the Member States shall communicate
to the Commission all
the
Commission to draw up a report to the European Parliament
and the Council on the application of this Directive.

the information necessary for

2. Without prejudice to paragraph 1, Member States shall
communicate to the Commission, every four years, the texts of
any measures adopted pursuant to Article 141(4) of the Treaty, as
well as reports on these measures and their implementation. On
the basis of that information, the Commission will adopt and
publish every four years a report establishing a comparative
assessment of any measures in the light of Declaration No 28
annexed to the Final Act of the Treaty of Amsterdam.

shall assess

3. Member States
the occupational activities
referred to in Article 14(2), in order to decide, in the light of
social developments, whether there is justification for maintain-
ing the exclusions concerned. They shall notify the Commission
of the results of this assessment periodically, but at least every 8
years.

Article 32

Review

By 15 February 2011 at the latest, the Commission shall review
the operation of this Directive and if appropriate, propose any
amendments it deems necessary.

Article 33

Implementation

Member States shall bring into force the laws, regulations and
administrative provisions necessary to comply with this Directive
by 15 August 2008 at the latest or shall ensure, by that date, that
management and labour introduce the requisite provisions by
way of agreement. Member States may,
if necessary to take
account of particular difficulties, have up to one additional year
to comply with this Directive. Member States shall take all
necessary steps to be able to guarantee the results imposed by
this Directive. They shall
forthwith communicate to the
Commission the texts of those measures.

When Member States adopt these measures, they shall contain a
reference to this Directive or be accompanied by such reference
on the occasion of their official publication. They shall also
include a statement that references in existing laws, regulations
and administrative provisions to the Directives repealed by this
Directive shall be construed as references to this Directive.
Member States shall determine how such reference is to be made
and how that statement is to be formulated.

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

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

Article 34

Repeal

1. With effect from 15 August 2009 Directives 75/117/EEC,
76/207/EEC, 86/378/EEC and 97/80/EC shall be repealed
the Member States
without prejudice to the obligations of
relating to the time-limits for transposition into national law and
application of the Directives set out in Annex I, Part B.

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

Article 35

Entry into force

This Directive shall enter into force on the 20th day following its
publication in the Official Journal of the European Union.

Article 36

Addressees

This Directive is addressed to the Member States.

Done at Strasbourg, 5 July 2006.

For the European Parliament
The President
J. BORRELL FONTELLES

For the Council
The President
P. LEHTOMÄKI

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ANNEX I

PART A

Repealed Directives with their successive amendments

Council Directive 75/117/EEC

Council Directive 76/207/EEC

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

Council Directive 86/378/EEC

Council Directive 96/97/EC

Council Directive 97/80/EC

Council Directive 98/52/EC

OJ L 45, 19.2.1975, p. 19

OJ L 39, 14.2.1976, p. 40

OJ L 269, 5.10.2002, p. 15

OJ L 225, 12.8.1986, p. 40

OJ L 46, 17.2.1997, p. 20

OJ L 14, 20.1.1998, p. 6

OJ L 205, 22.7.1998, p. 66

PART B

List of time limits for transposition into national law and application dates

(referred to in Article 34(1))

Directive

Time-limit for transposition

Date of application

Directive 75/117/EEC

Directive 76/207/EEC

Directive 86/378/EEC

Directive 96/97/EC

19.2.1976

14.8.1978

1.1.1993

1.7.1997

Directive 97/80/EC

1.1.2001

Directive 98/52/EC

Directive 2002/73/EC

22.7.2001

5.10.2005

17.5.1990 in relation to workers, except
for those workers or those claiming
under them who had before that date
initiated legal proceedings or raised an
equivalent claim under national law.
Article 8 of Directive 86/378/EEC —
1.1.1993 at the latest.
Article 6(1)(i), first indent of Directive
86/378/EEC –1.1.1999 at the latest.

As regards the United Kingdom of
Great Britain and Northern Ireland
22.7.2001

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ANNEX II

Correlation table

Directive 75/117/EEC

Directive 76/207/EEC

Directive 86/378/EEC

Directive 97/80/EC

This Directive

Article 1(1)

Article 1

Article 1

Article 1

—

—

—

—

—

—

—

—

—

Article 1

—

—

—

—

—

—

—

—

—

—

—

—

—

—

Article 1(2)

Article 2(2), first
indent

Article 2(2), second
indent

Article 2(2), third
and fourth indents

—

—

Article 2(3) and (4)
and Article 2(7) third
subparagraph

Article 2(8)

—

—

—

—

—

—

—

—

—

—

—

—

—

—

—

—

Article 2(1)

—

—

—

Article 5(1)

Article 3

Article 4

—

Article 2(2)

Article 2(3)

Article 6

Article 8

Article 9

(Article 2 of Direc-
tive 96/97/EC)

Article 9a

—

—

—

—

Articles 2(1) and 3
(1)

Article 2(6)

Article 2(7), second
subparagraph

Article 2(7), fourth
subparagraph, sec-
ond and third sen-
tence

—

—

—

Article 2(1), (a)

Article 2(2)

Article 2(1), (b)

—

—

—

—

—

—

—

—

—

—

—

—

—

—

—

—

Article 2(1), (c) and (d)

Article 2(1), (e)

Article 2(1), (f)

Article 2(2)

Article 3

Article 4

Article 5

Article 6

Article 7(1)

Article 7(2)

Article 8(1)

Article 8(2)

Article 9

Article 10

Article 11

Article 12

Article 13

Article 2(1)

Article 14(1)

—

—

—

—

—

—

Article 14(2)

Article 15

Article 16

Article 17(1)

Article 17(2)

Article 17(3)

Article 2

Article 6(1)

Article 10

—

—

Article 6(3)

Article 6(4)

—

—

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Directive 75/117/EEC

Directive 76/207/EEC

Directive 86/378/EEC

Directive 97/80/EC

This Directive

—

—

—

—

—

Article 6(2)

—

Article 8a

Article 8b

Article 8c

Articles 3 and 6

Article 3 (2)(a)

Article 4

—

Article 5

Article 6

—

—

—

—

—

—

Article 7

Article 9

—

—

Article 8

—

—

—

—

—

Article 3(2)(b)

—

Article 7

—

Article 8d

Article 2(5)

Article 8e(1)

Article 8e(2)

Article 2(7) first
subparagraph

Article 2(7) fourth
subparagraph first
sentence

Article 1(1a)

Article 8

Article 10

Article 9(2)

—

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

Article 9(1), second
subparagraph

—

—

—

—

—

—

—

—

—

—

Article 7(a)

Article 7(b)

Article 11

—

—

—

—

—

Articles 3 and 4

—

—

—

—

—

—

—

—

—

Article 4(2)

Article 6

Article 5(2)

—

Article 18

Article 19

Article 20

Article 21

Article 22

Article 23(a)

Article 23(b)

Article 23(c)

Article 24

—

Article 25

Article 26

Article 27(1)

Article 27(2)

Article 28(1)

Article 28(2)

—

Article 12(2)

—

—

Article 12(1)

—

—

—

—

Annex

Article 5

Article 7, fourth
subparagraph

—

—

Article 7, first, sec-
ond and third sub-
paragraphs

—

—

—

—

—

Article 29

Article 30

Article 31(1) and (2)

Article 31(3)

Article 32

Article 33

—

Article 34

Article 35

Article 36

—