Proposal for a Directive of the European Parliament and of the Council on the application of the principle of equal treatment between men and women engaged in an activity in a self-employed capacity and repealing Directive 86/613/EEC {SEC(2008)2592} {SEC(2008)2593}
Date: 2008-10-03
Institutions: European Commission
Subjects: equal treatment, gender equality, maternity leave, psychological harassment, self-employed person, sexual discrimination, sexual harassment, social security

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COMMISSION OF THE EUROPEAN COMMUNITIES 

Brussels, 3.10.2008 
COM(2008) 636 final 

2008/0192 (COD) 

Proposal for a 

DIRECTIVE OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL 

on the application of the principle of equal treatment between men and women engaged 
in an activity in a self-employed capacity and repealing Directive 86/613/EEC 

{SEC(2008)2592} 
{SEC(2008)2593} 

(presented by the Commission) 

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EXPLANATORY MEMORANDUM 

1. 

CONTEXT OF THE PROPOSAL 

Grounds for and objectives of the proposal 

The  aim  of  this  proposal  is  to  change  the  Community  legal  framework  concerning  the 
application  of  the  principle  of  equal  treatment  between  women  and  men  for  self-employed 
workers  and  their  spouses.  This  proposal  will  repeal  Directive  86/613/EEC1  and  will  be 
applicable as regards those aspects not covered by Directives 2006/54/EC, 2004/113/EC and 
79/7/EEC,  in  order  to  implement  more  effectively  the  principle  of  equal  treatment  between 
women  and  men  engaged  in  an  activity  in  a  self-employed  capacity,  or  contributing  to  the 
pursuit of such an activity. 

The  Commission  announced  a  review  of  Directive  86/613/EEC  in  its  legislative  work 
programme for 2008 (forward programming 2008, item 2008/EMPL/021). 

General context 

In  its  Report2  on  the  implementation  of  Directive  86/613/EEC,  the  Commission  concluded 
that the practical results of the implementation of the Directive were ‘not entirely satisfactory 
when  measured  against  the  prime  objective  of  the  Directive,  which  was  a  general 
improvement in the status of assisting spouses.’ 

In  its  Roadmap  for  equality  between  women  and  men3,  the  Commission  announced  that  in 
order  to  improve  governance  of  gender  equality,  it  would  ‘review  the  existing  EU  gender 
equality  legislation  not  included  in  the  2005  recast  exercise  (...)  with  a  view  to  updating, 
modernising  and  recasting  where  necessary’.  Directive  86/613/EEC  was  not  included  in  the 
recasting exercise. 

In December 20074, the Council called on the Commission to ‘consider the need to revise, if 
necessary, Council Directive 86/613/EEC in order to ensure the rights related to motherhood 
and fatherhood of self-employed workers and their helping spouses.’ 

The European Parliament has consistently called on the Commission to review the Directive5, 
in particular to improve the situation of assisting spouses in agriculture.  

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Council  Directive  86/613/EEC  of  11  December  1986  on  the  application  of  the  principle  of  equal 
treatment  between  men  and  women  engaged  in  an  activity,  including  agriculture,  in  a  self-employed 
capacity, and on the protection of self-employed women during pregnancy and motherhood (OJ L 359, 
19.12.1986, p. 56). 
Report from the Commission on the implementation of Council Directive of 11 December 1986 on the 
application  of  the  principle  of  equal  treatment  between  men  and  women  engaged  in  an  activity, 
including  agriculture,  in  a  self-employed  capacity,  and  on  the  protection  of  self-employed  women 
during pregnancy and motherhood - COM(94) 163. 
Communication  from  the  Commission  to  the  Council,  the  European  Parliament,  the  European 
Economic  and  Social  committee  and  the  Committee  of  the  Regions  A  Roadmap  for  equality  between 
women and men - COM(2006) 92. 
4 December 2007 (Document SOC 385). 
See the last report adopted by the European Parliament on 12 March 2008 on the situation of women in 
rural areas of the EU (2007/2117(INI), rapporteur Christa Klass, A6-0031/2008. 

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The  2000  Lisbon  European  Council  set  a  strategic  goal  for  the  EU  to  transform  it  into  'the 
most  competitive  and  dynamic  knowledge-based  economy  in  the  world,  capable  of 
sustainable economic growth with more and better jobs and greater social cohesion'. 

To  achieve  its  strategic  goal  of  promoting  more  and  better  jobs  and  offering  equal 
opportunities  for  all,  the  Union  needs  to  increase  entrepreneurship  in  general  and  women's 
entrepreneurship 
the  Commission 
in  particular.  This  has  been  acknowledged 
Communications ‘Think Small First’6 and ‘Renewed Social Agenda’7. 

in 

Existing provisions in the area of the proposal 

Directive 86/613/EEC covers two different categories of persons, 'self-employed workers' and 
their 'assisting spouses'. The legal situations for these two categories of persons are different.  

For self-employed workers, other legal texts implementing the principle of equal treatment 
between  women  and  men  are  applicable  in  certain  areas.  Discrimination  based  on  sex  is 
prohibited  in  social  security  and  other  elements  of  social  protection  (Directive  79/7/EEC), 
occupational  social  security  schemes  (Directive  86/378/EEC),  conditions  for  access  to  self-
employment (Directives 2002/73/EC and 2006/54/EC) and access to and supply of goods and 
services (Directive 2004/113/EC). 

As  far  as  'assisting  spouses'  are  concerned,  Directive  86/613/EEC  is  the  only  legal  text 
applicable at EU level. 

In 1994 the Commission adopted a report8 on the implementation of Directive 86/613/EEC in 
which  it  concluded:  'In  strictly  legal  terms,  it  appears  that  Directive  86/613/EEC  has  been 
implemented in the Member States. However, the practical result is not entirely satisfactory 
when  measured  against  the  prime  objectives  of  the  Directive,  which  was  a  general 
improvement in the status of assisting spouses’. The report also stressed the lack of an overall 
policy for dealing with the situation of assisting spouses and pointed out that "with a view to 
the recognition of the work of the spouse (...), the only way in which this objective is likely to 
be achieved is for spouses to be granted social security entitlements in their own right'. 

Consistency with other policies and objectives on the Union 

The  aim  of  this  proposal  is  totally  consistent  with  EU  policies  and  in  particular  with  the 
Lisbon  Strategy  for  Growth  and  Jobs.  According  to  the  EC  Treaty,  the  Community  aims  to 
eliminate  inequalities  and  promote  equality  between  men  and  women  in  all  its  activities. 
Gender equality lies at the heart of the Lisbon Strategy: since the gender gap in self-employed 
activities is wide, bridging the gender gap in the field of entrepreneurship is vital if the EU 
target for the female employment rate is to be met. 

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COM(2008) 394. 
COM(2008) 412. 
Report from the Commission on the implementation of Council Directive of 11 December 1986 on the 
application  of  the  principle  of  equal  treatment  between  men  and  women  engaged  in  an  activity, 
including  agriculture,  in  a  self-employed  capacity,  and  on  the  protection  of  self-employed  women 
during pregnancy and motherhood - COM(94) 163. 

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2. 

CONSULTATION OF INTERESTED PARTIES AND IMPACT ASSESSMENT 

Consultation 

In preparing this initiative, the Directorate-General for Employment, Social Affairs and Equal 
Opportunities sought to consult all stakeholders with a potential interest in this matter, both 
those potentially affected by the initiative and those who would be involved in implementing 
it. 

The Commission accordingly consulted the European social partners, other stakeholders, the 
Member States and the Advisory Committee on Equal Opportunities for Women and Men. 

The organisations consulted expressed divergent views on the review of this Directive. Trade 
unions  and  agriculture  organisations  are  in  favour  of  amending  the  Directive  and  improve 
gender equality for self-employed workers and assisting spouses. 

The  organisation  representing  agricultural  organisations  supports  equal  rights  for  equal 
commitment for all partners in farm businesses. On the other hand, organisations representing 
SMEs and sectoral employers are mostly concerned about the potential costs of any changes 
and opposed to any changes that would increase social security contributions.  

The  Advisory  Committee  on  Equal  Opportunities  for  Women  and  Men  (composed  of 
representatives  of  Member  States,  European  social  partners  and  NGOs),  which  was  also 
consulted,  is  of  the  opinion  that  the  Directive  should  be  amended  in  order  to  give  assisting 
spouses  a  clear  professional  status,  with  coverage  by  social  protection  schemes,  and  to 
provide for paid maternity/paternity leave for self-employed workers and assisting spouses. 

The  European  Women’s  Lobby  supports  the  opinion  of  the  Advisory  Committee  on  Equal 
Opportunities. The Confederation of Family Organisations in the European Union (COFACE) 
strongly  advocates  a  revision  of  Directive  86/613/EEC  to  give  self-employed  women  a 
maternity leave of a long enough duration to ensure the proper course of a normal pregnancy 
and physical recovery of the mother after a normal childbirth and to oblige Member States to 
recognise the contribution of assisting spouses in the family business and to ensure that they 
benefit from the same level of social protection as the self-employed workers. 

The position of Member States is also far from unanimous, some asking for an improvement 
of  the  EU  legal  framework,  others  stating  that  they  do  not  see  a  need  to  review  national 
legislation on the issues covered by the Directive or the EU legal framework. 

The Commission has taken into account, as far as possible, the positions expressed during the 
consultation,  by  limiting  the  intervention  to  what  is  absolutely  necessary  to  implement  the 
principle of equal treatment and by assessing carefully the costs and benefits of the different 
policy options. 

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Collection and use of expertise 

In view of the need to review Directive 86/613/EEC, the Commission asked the Network of 
Independent Legal Experts on the application of Community Law on equal treatment between 
men and women to produce a report on the implementation of the Directive, on its loopholes 
and weaknesses and on ways to improve it9. 

A  study10  was  commissioned  to  provide  an  overview  of  the  situation  in  the  Member  States 
and to assess the costs and benefits of various policy options. 

Other studies have been extensively used, in particular Good practices on social protection of 
new entrepreneurs and assisting partners and the impact on business creation11. 

Impact assessment 

The Impact Assessment Report looked at whether a review of Directive 86/613/EEC would be 
beneficial, in the light of its objectives, which were mainly to improve the application of the 
principle of equal treatment between women and men and increase participation of women in 
self-employed activities. 

Three main policy options were identified: no action at EU level, non-binding measures and 
an amendment to Directive 86/613/EEC. 

The  report  then  looked  at  the  impact  of  the  three  options.  For  that  purpose,  the  option  to 
amend  the  Directive  was  divided  into  four  further  policy  options  (which  are  not  mutually 
exclusive): 

–  improving protection in the event of maternity 

–  providing leave to care for family members 

–  recognising the contribution of assisting spouses 

–  giving national equality bodies competence in the field. 

After analysing the impact of each option, the report concluded that the option of not taking 
any new action at EU level would not meet any of the objectives. It also concluded that non-
binding  measures  should  be  maintained  and  developed  but  were  not  an  alternative  to 
amending  the  Directive.  Revising  the  Directive  was  considered  to  be  the  sole  option  that 
could meet the objectives. 

In  terms  of  costs,  the  impact  assessment  report  came  to  the  conclusion  that  the  costs  of  the 
option  to  grant  female  self-employed  workers  maternity  leave  were  low  for  the  8  Member 
States  which  do  not  already  provide  for  this.  The  implementation  of  this  option  could  be 
neutral for social security if it was entirely paid by the self-employed workers themselves. In 
that case, the maximum increase in contributions to the social security systems would remain 

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The study is available at: 
http://ec.europa.eu/employment_social/gender_equality/legislation/report_draft2.pdf. 
Not yet available on line. 
This study is available at: http://ec.europa.eu/enterprise/entrepreneurship/craft/craft-
studies/documents/social_protection_final_report_en.pdf. 

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low (from 0.05% in Lithuania to 1.75% in Bulgaria). In practice, the funding of social security 
comes  from  different  sources  (contributions  from  the  self-employed  workers  and  taxation) 
and therefore the costs would be spread between Member States and self-employed workers. 

In any case, the financial impact of the measure can also be reduced by leaving self-employed 
women the choice to benefit (or not) from maternity leave. 

Concerning the option to grant assisting spouses the same level of protection as self-employed 
workers, the costs for social security schemes could be neutral in at least two cases: if they are 
entirely  passed  onto  self-employed  workers  through  a  proportional  increase  of  their 
contributions  or  if  Member  States  opt  to  impose  a  distribution  of  the  benefits  and 
contributions  within  the  family  business  which  reflects  the  percentage  input  of  the  self-
employed  worker  and  the  assisting  spouse  to  the  family  business.  In  the  latter  case,  the 
measure could be neutral in terms of costs and contributions for the social security scheme. 

In  any  case,  the  financial  impact  of  the  measure  can  also  be  reduced  by  leaving  assisting 
spouses  the  choice  to  join  (or  not)  the  social  security  scheme  applicable  to  self-employed 
workers. 

The report came to the conclusion that the option that best met the objectives was a proposal 
for a directive amending Directive 86/613/EEC. Taking into account the costs of the possible 
options for Member States and self-employed workers the preferred approach comprises: 

•  providing for a possibility of a period of maternity leave for self-employed women,  

•  recognising the contribution of assisting spouses to the family business by providing them 
with the possibility of social protection equivalent to that of their self-employed partners, 
and 

•  giving national equality bodies competence in cases of discrimination. 

3. 

LEGAL ASPECT 

Legal base 

In the original Treaty of Rome, Article 119 EC did not apply to self-employed workers. This 
situation changed with the entry into force of the Amsterdam Treaty. The new paragraph 3 of 
Article 141 EC now applies to 'matters of employment and occupation' and therefore covers 
self-employed workers. 

Because  of  this  limitation  in  the  scope  of  Article  119  of  the  Treaty  of  Rome,  Directive 
86/613/EEC was adopted under Articles 100 and 235, two 'residual' legal basis allowing the 
Council to adopt directives for the approximation of such laws of Member States as directly 
affect  the  establishment  or  functioning  of  the  common  market  or  when  an  action  by  the 
Community has proved to be necessary to attain one of the objectives of the Community and 
the Treaty has not provided the necessary powers. 

However, the present proposal can now be based on the specific legal base, i.e. Article 141 
EC. 

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Subsidiarity and proportionality 

Article 2 of the EC Treaty provides that promoting equality between men and women is part 
of the tasks of the European Community. 

The low participation of women in self-employment is a matter of gender inequality: women 
are not equal in the sense that where family responsibilities seem to have a negative impact on 
women’s participation in entrepreneurship as compared to men. 

As far as assisting spouses are concerned, the lack of coverage by social security and the non-
recognition  of  their  contribution  to  the  family  business  give  some  businesses  an  unfair 
competitive advantage, so this initiative would ensure a level playing field throughout Europe. 

The EU has already in place Directive 86/613/EEC covering the matters touched upon by this 
proposal. An EU legal instrument is the only way to ensure a level playing field in Europe. 
Strongly  divergent  national  legislations,  in  particular  concerning  the  status  of  assisting 
spouses,  could  lead  to  an  unfair  competitive  advantage  of  businesses  where  the  level  of 
protection is lower or inexistent. 

This proposal goes no further than necessary to ensure that the aim of the initiative is met. 

The proposed Directive is a minimum standards instrument and would set out basic minimum 
standards  whilst  allowing  those  Member  States  which  wished  to  go  further  to  do  so.  In 
particular, the Directive will not require that all assisting spouses are granted the same social 
security protection as self-employed workers, but that assisting spouses can, at their request, 
benefit from at least an equal level of protection as self-employed worker. Member States will 
remain competent to establish the level of contributions and all the arrangements concerning 
benefits  and  payments,  provided  the  minimal  prescriptions  of  this  Directive  are  complied 
with. 

This  proposal  therefore  respects  the  principles  of  subsidiarity  and  proportionality,  as  it  is 
taken at the appropriate level and does not go beyond what is absolutely necessary at EU level 
in order to achieve the objectives set for the initiative. 

Choice of instrument 

Since the aim is to replace an existing Directive, a directive is the most appropriate legal act 
to do so. 

Furthermore,  a  directive  is,  in  any  case,  the  appropriate  instrument  that  ensures  a  coherent 
minimum  level  of  protection  in  all  Member  States,  while  allowing  each  Member  State  to 
decide on the best way to implement the rules. 

Correlation table 

The  Member  States  are  required  to  communicate  to  the  Commission  the  text  of  national 
provisions  transposing  the  Directive  as  well  as  a  correlation  table  between  those  provisions 
and the Directive. 

European Economic Area 

This  is  a  text  of  relevance  to  the  European  Economic  Area  and  the  Directive  will  be 
applicable  to  the  non-EU  Member  States  of  the  European  Economic  Area  following  a 
decision of the EEA Joint Committee  

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4. 

BUDGETARY IMPLICATIONS 

The proposal has no implications for the Community budget.  

5. 

DETAILED EXPLANATION OF THE SPECIFIC PROVISIONS 

Article 1: 

Article 1(1) is equivalent to Article 1 of Directive 86/613/EEC. It sets out the purpose of the 
Directive,  i.e.  to  put  into  effect  the  principle  of  equal  treatment  between  men  and  women 
engaged  in  self-employed  activities.  The  Directive  covers  only  those  aspects  not  already 
covered by Directives 2006/54/EC and 79/7/EEC. 

Article 1(2) sets the personal scope of the Directive. It is the same as in Article 2 of Directive 
86/613/EEC: it covers self-employed workers and assisting spouses. 

Article  1(3)  clarifies  that  this  Directive  does  not  cover  the  matters  covered  by  Directive 
2004/113/EC implementing the principle of equal treatment between men and women in the 
access to and supply of goods and services. In particular, Article 5 of Directive 2004/113/EC 
remains applicable to the contracts of insurance and related financial services. 

Article 2: 

Article  2  regroups  all  the  definitions  of  the  terms  used  in  the  Directive.  The  definitions  of 
'self-employed  workers'  and  of  'assisting  spouses'  are  taken  from  Article  2  of  Directive 
86/613/EEC. The definition of 'assisting spouses' is amended: the words 'assisting' and 'or life 
partners' are added. The amendment aims to cover all persons recognised as 'life partners' by 
national law and regularly participating in the activities of the family business, irrespective of 
marital status. In order to remove ambiguity, 'partner' is replaced by 'business partner'.  

The  definitions  of  'direct  discrimination',  'indirect  discrimination',  'harassment'  and  'sexual 
harassment'  are  drawn  from  existing  Community  law  and  do  not  depart  from  previously 
agreed  approaches  in  any  way.  The  concepts  of  direct  and  indirect  discrimination  and  sex-
based and sexual harassment are identical, mutatis mutandis, to those contained in Directives 
2000/43/EC, 2000/78/EC, 2002/73/EC, 2004/113/EC and 2006/54/EC.  

Harassment  on  grounds  of  sex  and  sexual  harassment  do  not  occur  solely  at  the  workplace, 
but  also  in  other  areas  of  an  individual's  life,  including  in  the  context  of  self-employed 
activities.  As  in  Directive  76/207/EEC  and  2006/54/EC,  the  two  concepts  are  defined 
separately  because  they  are  distinct  phenomena.  Harassment  based  on  sex  consists  of 
unfavourable  treatment  of  a  person  related  to  their  sex,  though  it  need  not  be  of  a  sexual 
nature.  Sexual  harassment  consists  of  unwanted  physical,  verbal  or  non-verbal  conduct  of  a 
sexual nature. 

Article 3: 

Article  3(1)  sets  the  meaning  of  the  principle  of  equal  treatment  for  the  purpose  of  this 
Directive. It is inspired on Articles 3 and 4 of Directive 86/613/EEC. This provision prohibits 
any direct or indirect discrimination in relation to the establishment, equipment or extension 
of a business or the launching of any other form of self-employed activity. 

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Article  3(2)  makes  it  clear  that  both  forms  of  harassment  are  deemed  discrimination  on 
grounds of sex and therefore prohibited. 

Article 3(3) indicates that an instruction to discriminate as such is deemed discrimination. A 
similar  provision  already  exists  in  Directives  2000/43/EC  and  2000/78/EC  based  on  Article 
13 EC and in Directive 2006/54/EC, based upon Article 141(3) EC and 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. 

Article 4: 

This  provision  concerns  positive  action.  Following  the  model  of  existing  Directives,  in 
particular  Directive  2004/113/EC,  it  confirms  that  the  Member  States  may  maintain  or 
introduce specific measures to compensate for certain disadvantages suffered  by  individuals 
of  either  sex  in  the  area  covered  by  the  Directive.  Such  measures  must  be  shown  to  be 
necessary,  must  be  focused  on  overcoming  a  specific  disadvantage  and  must  be  limited  in 
time,  being  in  force  no  longer  than  is  necessary  to  deal  with  the  problem  identified.  For 
example,  women  have  traditionally  experienced  greater  problems  than  men  in  starting  up 
businesses as the result of a range of factors, including the difficulty of raising venture capital 
and  gaining  support  for  the  development  of  business  ideas.  While  the  application  of  the 
principle of equal treatment is likely to help with this situation, it is unlikely to be sufficient 
on  its  own  to  overcome  the  disadvantages  faced  by  women  in  this  area.  The  Commission 
believes  that  this  Directive  should  not  prohibit  the  possibility  of  introducing  measures  to 
bridge the gender gap in terms of entrepreneurship in the Member States and that the Member 
States  must  therefore  be  allowed  to  make  such  derogation  from  the  principle  of  equal 
treatment.  Of  course,  in  line  with  the  jurisprudence  of  the  Court  of  Justice  with  regard  to 
in  attributing  automatically  and 
these  measures  may  not  end  up 
positive  action, 
unconditionally advantages to women when women and men are qualified. 

Article 5: 

Article 5 is similar to Article 5 of Directive 86/613/EEC. The main change is the insertion of 
the words 'or life partners' to make clear that it covers persons recognised as "life partners" of 
the self-employed worker by national law irrespective of marital status. 

Article 6: 

Article  6  is  similar  to  Article  6  of  Directive  86/613/EEC.  The new  provision  stipulates  that 
assisting  spouses  must,  at  their  request,  benefit  from  at  least  an  equal  level  of  protection  as 
self-employed workers. It does not stipulate that self-employed workers are to be covered by 
any specific social security system. It simply makes it an obligation for assisting spouses to be 
able,  if  they  so  decide,  to  join  the  same  social  security  protection  applicable  to  the  self-
employed worker. Under this Article, the decision to join or not is to be taken by the assisting 
spouses, Member States are only required to make the choice possible. Member States remain 
competent to establish the level of contributions and all the arrangements concerning benefits 
and payments, provided the minimal prescriptions of this Directive are complied with. 

Article 7: 

Article  7  substantially  amends  Article  8  of  Directive  86/613/EEC.  Under  the  latter  as  it 
stands,  the  Member  States  are  to  examine  whether,  and  under  what  conditions,  female  self-
employed workers and the wives of self-employed workers may, during interruptions in their 

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occupational  activity  owing  to  pregnancy  or  motherhood,  have  access  to  services  supplying 
temporary replacements and be entitled to cash benefits under a social security scheme or any 
other public social protection system. 

Article 7(1) states that female self-employed workers and assisting spouses should be entitled, 
at their request, to maternity leave as provided for in Directive 92/85/EEC. 

According  to  Article  7(2)  and  (3),  such  maternity  leave  is  to  be  paid  at  a  rate  at  least 
equivalent to the payment received in the event of sickness, subject to any ceiling laid down 
by  national  law.  If  the  person  in  question  does  not  benefit  from  sickness  allowance,  the 
payment should be equivalent to any appropriate allowance established at national level. 

In  order  to  take  the  specificities  of  self-employed  activities  into  account,  Article  7(4)  gives 
self-employed women as far as possible the option of temporary replacement services as an 
alternative  to  the  financial  allowance.  This  would  allow  self-employed  women  to  take  their 
maternity leave and pursue their business activity, through a temporary replacement.  

Article 8: 

Article  8  relates  to  the  defence  of  rights  enabling  the  obligations  under  the  Directive  to  be 
enforced. In particular, it gives people who believe they have suffered discrimination with the 
possibility  of  pursuing  their  claims  through  administrative  and/or  judicial  proceedings  to 
enforce their right to equal treatment. 

The right to legal protection is further reinforced by the possibility of allowing organisations 
to exercise such rights on behalf of a victim. 

Article 9: 

Article 9 deals with compensation and reparation. Member States are required to ensure that 
there is provision in national law for real and effective compensation or reparation, as is the 
case in existing Directives based on Articles 13 EC and 141 EC. 

Article 10: 

Article  10  requires  Member  States  to  designate  national  bodies  for  the  promotion  of  equal 
treatment in the fields covered by the Directive. It replicates similar provisions of Directives 
2000/43/EC, 2002/73/EC, 2004/113/EC and 2006/54/EC. 

It  provides  for  a  framework  for  such  national  bodies,  which  are  to  act  independently  to 
promote the principle of equal treatment. The Member States may decide that such bodies are 
to  be  the  same  as  those  provided  for  in  Council  Directive  2002/73/EC  –  and  thus  now 
2006/54/EC  -  for  the  labour  market  and/or  in  Council  Directive  2004/113/EC  for  access  to 
goods and services. The Member States are free to provide for their establishment at regional 
or local level, provided that their whole territory is covered by such arrangements. 

The  proposal  for  a  Directive  lays  down  a  number  of  requirements  for  such  bodies  in  the 
Member States, along the lines of what is already set out in the Directives mentioned above. 

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Article 11: 

Article 11 is a standard provision on the need for transparency and to ensure information on 
the provisions in the field covered by the Directive are brought to the attention of the persons 
concerned. 

Article 12: 

This  provision  is  a  standard  clause  establishing  that  the  transposition  of  the  Directive  into 
national law cannot be the motive for a reduction of the level of protection already existing in 
national law for the persons and matters covered by the Directive. 

Article 13: 

This provision sets out the procedures for monitoring and reporting on implementation of the 
principle of equal treatment. The reporting procedures require the Member States to report to 
the  Commission  [six  years  after  adoption]  and  the  Commission  to  report  to  the  European 
Parliament and the Council one year later. 

The impact of the Directive will therefore be carefully assessed and any adjustments needed 
to the legal framework can then be proposed in a good time. 

Article 14: 

This  provision  sets  out  the  procedures  for  the  implementation  of  the  Directive.  The 
Commission proposes that the Member States should in general have two years to transpose 
the Directive into national law and an additional [two] years to comply with Article 6, dealing 
with assisting spouses. 

In line with recently agreed practice, this Article requires the Member States to notify the text 
of  their  national  provisions  transposing  the  Directive,  together  with  a  correlation  table 
between those provisions and the Directive. 

Article 15: 

This  provision  repeals  Directive  86/613/EEC  from  the  date  set  in  Article  13  for  the 
implementation of the Directive by Member States. 

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2008/0192 (COD) 

Proposal for a 

DIRECTIVE OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL 

on the application of the principle of equal treatment between men and women engaged 
in an activity in a self-employed capacity and repealing Directive 86/613/EEC 

THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION, 

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

Having regard to the proposal from the Commission12, 

Having regard to the opinion of the European Economic and Social Committee13, 

Having regard to the opinion of the Committee of the Regions14, 

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

Whereas: 

(1) 

Council  Directive  86/613/EEC  of  11  December  1986  on  the  application  of  the 
principle of equal treatment between men and women engaged in an activity, including 
agriculture,  in  a  self-employed  capacity,  and  on  the  protection  of  self-employed 
women during pregnancy and motherhood15 ensures application in Member States of 
the principle of equal treatment as between men and women engaged in an activity in a 
self-employed capacity, or contributing to the pursuit of such activity. As far as self-
employed workers and assisting spouses are concerned, Directive 86/613/EEC has not 
been very effective and its scope should be reconsidered, as discrimination based on 
sex and harassment also occur in areas outside salaried work. In the interest of clarity, 
Directive 86/613/EEC should be replaced by this Directive.  

(2) 

In  its  Roadmap  for  equality  between  women  and  men16,  the  Commission  announced 
that in  order  to  improve governance of gender equality,  it would  review  the existing 
EU gender equality legislation not included in the 2005 recast exercise with a view to 
updating, modernising and recasting where necessary. Directive 86/613/EEC was not 
included in the recasting exercise. 

12 
13 
14 
15 
16 

OJ C , p. . 
OJ C , p. . 
OJ C , p. . 
JO L 359, 19.12.1986, p. 56. 
COM(2006) 92. 

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(3) 

(4) 

(5) 

(6) 

(7) 

(8) 

(9) 

In  the  Council  conclusions  ‘Balanced  roles  of  women  and  men  for  jobs,  growth  and 
social  cohesion’17,  the  Council  called  on  the  Commission  to  consider  the  need  to 
revise, if necessary, Council Directive 86/613/EEC in order to ensure the rights related 
to motherhood and fatherhood of self-employed workers and their helping spouses. 

The  European  Parliament  has  consistently  called  on  the  Commission  to  review  the 
Directive  86/613/EEC,  in  particular  to  improve  the  situation  of  assisting  spouses  in 
agriculture. 

In its Communication ‘Renewed Social Agenda: Opportunities, access and solidarity 
in 21st century Europe’18, the Commission has affirmed the need to take action on the 
gender gap in entrepreneurship as well as to improve the reconciliation of private and 
professional life.  

There are already a number of existing legal instruments for the implementation of the 
principle  of  equal  treatment  which  cover  self-employment  activities,  in  particular 
Council  Directive  79/7/EEC  on  the  progressive  implementation  of  the  principle  of 
equal  treatment  for  men  and  women  in  matters  of  social  security19  and  Directive 
2006/54/EEC of the European Parliament and of the Council on the implementation of 
the principle of equal opportunities and equal treatment of men and women in matters 
of employment and occupation (recast)20. This Directive should therefore not apply to 
the areas already covered by other directives. 

The  Directive  should  apply  to  self-employed  workers  and  assisting  spouses,  as  both 
participate in the activities of the business. 

The Directive should not apply to matters covered by other Directives implementing 
the  principle  of  equal  treatment  between  men  and  women,  notably  Directive 
2004/113/EC.  In  particular,  Article  5  of  Directive  2004/113/EC  on  insurance  and 
related financial services remains applicable. 

To prevent discrimination based on sex, this Directive should apply to both direct and 
indirect  discrimination.  Harassment  and  sexual  harassment  should  be  considered 
discrimination and therefore prohibited. 

(10)  Member  States may,  under Article 141(4) of the Treaty, maintain or adopt measures 
providing for specific advantages, in order to make it easier for the under-represented 
sex  to  engage  in  self-employed  activities  or  to  prevent  or  compensate  for 
disadvantages  in  their  professional  careers.  In  principle,  the  measures  aimed  at 
achieving equality in practice should not be seen as in breach of the legal principle of 
equal treatment between women and men. 

(11) 

In  the  area  of  self-employment,  the  application  of  the  principle  of  equal  treatment 
means that there must be no discrimination in relation to the establishment, equipment 
or extension of a business or any other form of self-employed activity. 

17 
18 
19 
20 

4 December 2007 (Document SOC 385). 
COM(2008) 412. 
OJ L 6, 10.1.1979, p. 24. 
OJ L 204, 26.7.2006, p. 23. 

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(12) 

(13) 

It  is  necessary  to  ensure  that  there  is  no  discrimination  based  on  marital  or  family 
status  as  regards  the  conditions  for  setting  up  a  company  between  spouses  or  life 
partners when recognised by national law. 

In  view  of  their  contribution  to  the  family  business,  assisting  spouses  should  be 
entitled,  at  their  request,  to  benefit  from  at  least  an  equal  level  of  protection  as  self-
employed  workers,  under  the  same  conditions  applicable  to  self-employed  workers, 
notably  on  contributions.  Member  States  should  be  required  to  take  the  necessary 
measures  to  make  that  choice  possible.  In  any  case,  the  level  of  protection  of  self-
employed workers and assisting spouse can be proportional to the rate of participation 
in the activities of the family business. 

(14)  The  economic  and  physical  vulnerability  of  pregnant  self-employed  workers  and 
assisting  spouses  makes  it  necessary  for  them  to  be  granted  the  right  to  maternity 
leave,  part  of  which  should  be  considered  mandatory.  Member  States  remain 
competent to establish the level of contributions and all the arrangements concerning 
benefits  and  payments,  provided  the  minimal  prescriptions  of  this  Directive  are 
complied  with.  To  take  into  consideration  the  specific  situation  of  self-employed 
workers and assisting spouses, they should be given the final choice on whether or not 
benefit from maternity leave. 

(15) 

In order to take the specificities of self-employed activities into account, female self-
employed workers and assisting spouses should be able to choose, as far as possible, 
between a financial allowance and a temporary replacement during maternity leave. 

(16)  Enhancing the efficiency and effectiveness of welfare systems, notably via improved 
incentives,  better  administration  and  evaluation  and  the  prioritisation  of  spending 
programmes,  has  become  crucial  to  ensure  the  long-term  financial  sustainability  of 
European  social  models.  When  devising  the  measures  needed  to  implement  this 
Directive, Member States should pay special attention to improving and securing the 
quality and long-term sustainability of their social protection systems. 

(17)  Persons who have been subject to discrimination based on sex should have adequate 
means  of  legal  protection.  To  provide  more  effective  protection,  associations, 
organisations and other legal entities should be empowered to engage in proceedings, 
as Member States so determine, either on behalf or in support of any victim, without 
prejudice to national rules of procedure concerning representation and defence before 
the courts. 

(18)  Protection from discrimination based on sex should be strengthened by the existence 
of a body or bodies in each Member State with competence to analyse the problems 
involved, to study possible solutions and to provide practical assistance to the victims. 
The body or bodies may be the same as those with responsibility at national level for 
the  defence  of  human  rights  or  the  safeguarding  of  individuals'  rights,  or  the 
implementation  of  the  principle  of  equal  treatment.  In  exercising  their  powers  and 
fulfilling  their  responsibilities  under  this  Directive,  these  bodies  should  operate  in  a 
manner  consistent  with  the  United  Nations  Paris  Principles  relating  to  the  status  and 
functioning of national institutions for the protection and promotion of human rights. 

(19)  Since the objectives of the action to be taken, namely to ensure a common high level 
of  protection  from  discrimination  in  all  the  Member  States,  cannot  be  sufficiently 

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achieved  by  the  Member  States  and  can  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 the same Article, this Directive does not go beyond what is necessary in 
order to achieve those objectives, 

HAVE ADOPTED THIS DIRECTIVE: 

Article 1 
Subject matter and scope 

1.  This  Directive  lays  down  a  framework  for  putting  into  effect  in  Member  States  the 
principle  of  equal  treatment  between  men  and  women  engaged  in  an  activity  in  a  self-
employed capacity, or contributing to the pursuit of such an activity, as regards those aspects 
not covered by Directives 2006/54/EC and 79/7/EEC. 

2. This Directive covers self-employed workers and assisting spouses. 

3.  The  implementation  of  the  principle  of  equal  treatment  between  men  and  women  in  the 
access to and supply of goods and services remains covered by Directive 2004/113/EC. 

Article 2 
Definitions 

1. For the purposes of this Directive, the following definitions shall apply: 

(a)  'self-employed  workers':  all  persons  pursuing  a  gainful  activity  for  their  own  account, 
under the conditions laid down by national law, including farmers and members of the liberal 
professions; 

(b)  'assisting  spouses':  the  spouses  or,  life  partners  of  self-employed  workers,  when 
recognised by national law, , not being employees or business partners, where they habitually, 
under  the  conditions  laid  down  by  national  law,  participate  in  the  activities  of  the  self-
employed worker and perform the same tasks or ancillary tasks. 

(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; 

(d) 'indirect discrimination': where an apparently neutral provision, criterion or practice puts 
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; 

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

(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. 

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Article 3 
Principle of equal treatment 

1. The principle of equal treatment means that there shall be no discrimination whatsoever on 
grounds  of  sex,  either  directly  or  indirectly,  by  reference  in  particular  to  marital  or  family 
status, in particular in relation to the establishment, equipment or extension of a business or 
the launching or extension of any other form of self-employed activity. 

2. Harassment and sexual harassment shall be deemed to be discrimination on grounds of sex 
and therefore prohibited. A person's rejection of, or submission to, such conduct may not be 
used as a basis for a decision affecting that person. 

3.  An  instruction  to  discriminate  against  persons  on  grounds  of  sex  shall  be  deemed  to  be 
discrimination. 

Article 4 
Positive action 

With  a  view  to  ensuring  full  equality  in  practice  between  men  and  women,  the  principle  of 
equal  treatment  shall  not  prevent  any  Member  State  from  maintaining  or  adopting  specific 
measures to prevent or compensate for disadvantages linked to sex. 

Article 5 
Establishment of a company 

Without  prejudice  to  the  specific  conditions  for  access  to  certain  activities  which  apply 
equally  to  both  sexes,  Member  States  shall  take  the  measures  necessary  to  ensure  that  the 
conditions  for  the  establishment  of  a  company  between  spouses  or  life  partners,  when 
recognised by national law, are not more restrictive than the conditions for the establishment 
of a company with other persons. 

Article 6 
Social protection for assisting spouses 

Member States shall take the necessary measures to ensure that assisting spouses can, at their 
request, benefit from at least an equal level of protection as self-employed workers under the 
same conditions applicable to self-employed workers. 

Article 7 
Maternity leave 

1.  Member  States  shall  take  the  necessary  measures  to  ensure  that  female  self-employed 
workers and assisting spouses can, at their request, be entitled to the same period of maternity 
leave as provided for in Directive 92/85/EEC. 

2.  In  order  to  ensure  that  persons  as  referred  to  in  paragraph  1  can  exercise  their  rights  as 
recognised in this Article, Member States shall take the measures to ensure that they receive 
an adequate allowance during their maternity leave. 

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3. The allowance referred to in paragraph 2 shall be deemed adequate if it guarantees income 
at least equivalent to that which the person concerned would receive in the event of a break in 
her  activities  on  grounds  connected  with  her  state  of  health  or,  if  not  applicable,  any 
equivalent  allowance  established  by  national  law,  subject  to  any  ceiling  laid  down  under 
national legislation. 

4.  Member  States  shall  take  the  necessary  measures  to  ensure  that  female  self-employed 
workers and assisting spouses have access as far as possible to services supplying temporary 
replacements  or  to  any  existing  national  social  services,  as  an  alternative  to  the  allowance 
referred to in paragraph 2. 

Article 8 
Defence of rights 

1.  Member  States  shall  ensure  that  judicial  or  administrative  proceedings,  including,  where 
Member  States  consider  it  appropriate,  conciliation  procedures,  are  available  for  the 
enforcement of the obligations under this Directive are available to all persons who consider 
they  have  sustained  loss  or  damage  as  a  result  of  a  failure  to  apply  the  principle  of  equal 
treatment to them, even after the relationship in which the discrimination is alleged to have 
occurred has ended. 

2. Member States shall ensure that associations, organisations and 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, on behalf or in 
support  of  the  complainant,  with  his  or  her  approval,  in  any  judicial  or  administrative 
proceedings provided for the enforcement of obligations under this Directive. 

3. Paragraphs 1 and 2 shall be without prejudice to national rules on time limits for bringing 
actions relating to the principle of equal treatment. 

Article 9 
Compensation or reparation 

Member  States  shall  introduce  such  measures  into  their  national  legal  systems  as  are 
necessary  to  ensure  real,  effective  compensation  or  reparation,  as  Member  States  so 
determine, for the loss or damage sustained by a person as a result of discrimination within 
the  meaning  of  this  Directive,  such  compensation  or  reparation  being  dissuasive  and 
proportionate  to  the  loss  or  damage  suffered.  Such  compensation  or  reparation  shall  not  be 
limited by a prior upper limit fixed. 

Article 10 
Equality bodies 

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

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2. Member States shall ensure that the tasks of the bodies referred to in paragraph 1 include: 

(a) providing independent assistance to victims of discrimination in pursuing their complaints 
of discrimination, without prejudice to the rights of victims and of associations, organisations 
and other legal entities referred to in Article 8(2); 

(b) conducting independent surveys on discrimination; 

(c) publishing independent reports and making recommendations on any issue relating to such 
discrimination. 

Article 11 
Dissemination of information 

Member  States  shall  ensure  that  the  provisions  adopted  pursuant  to  this  Directive,  together 
with  the  relevant  provisions  already  in  force,  are  brought  by  all  appropriate  means  to  the 
attention of the persons concerned throughout their territory. 

Article 12 
Level of protection 

The  implementation  of  this  Directive  shall  under  no  circumstances  constitute  grounds  for  a 
reduction in the level of protection against discrimination already afforded by Member States 
in the fields covered by this Directive. 

Article 13 
Reports 

1. Member States shall communicate all available information concerning the application of 
this Directive to the Commission by [6 years after adoption]. 

The Commission shall draw up a summary report for submission to the European Parliament 
and to the Council no later than [7 years after adoption]. Where appropriate, that report shall 
be accompanied by proposals for amending this Directive. 

2. The Commission's report shall take the viewpoints of the stakeholders into account. 

Article 14 
Implementation 

1.  Member  States  shall  bring  into  force  the  laws,  regulations  and  administrative  provisions 
necessary  to  comply  with  this  Directive  by  [2  years]  at  the  latest.  They  shall  forthwith 
communicate to the Commission the text of those provisions and a correlation table between 
those provisions and this Directive. 

When Member States adopt those provisions, they shall contain a reference to this Directive 
or be accompanied by such a reference on the occasion of their official publication. Member 
States shall determine how such reference is to be made. 

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2. In order to take account of particular conditions, Member States may, if necessary, have an 
additional period of [2 years] to comply with Article 6. 

3.  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 15 
Repeal 

With effect to [deadline for implementation], Directive 86/613/EEC shall be repealed. 

Article 16 
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 17 
Addressees 

This Directive is addressed to the Member States. 

Done at Brussels, 

For the European Parliament 

For the Council 

The President 

The President 

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