Communication from the Commission to the European Parliament pursuant to Article 294(6) of the Treaty on the Functioning of the European Union concerning the position of the Council at first reading with a view to adopting the 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 Council Directive 86/613/EEC
Date: 2010-03-22
Institutions: European Commission
Subjects: care of mothers and infants, drafting of EU law, equal treatment, gender equality, labour law, married person, maternity leave, self-employed person, social security

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EUROPEAN COMMISSION 

Brussels, 22.3.2010 
COM(2010)99 final 

2008/0192 (COD) 

COMMUNICATION FROM THE COMMISSION TO THE EUROPEAN 
PARLIAMENT 

pursuant to Article 294(6) of the Treaty on the Functioning of the European Union 

concerning the 

position of the Council at first reading with a view to adopting the 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 Council Directive 86/613/EEC 

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2008/0192 (COD) 

COMMUNICATION FROM THE COMMISSION TO THE EUROPEAN 
PARLIAMENT 

pursuant to Article 294(6) of the Treaty on the Functioning of the European Union 

concerning the 

position of the Council at first reading with a view to adopting the 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 Council Directive 86/613/EEC 

1. 

BACKGROUND 

On 3 October 2008, the Commission adopted the proposal for a directive on the application of 
the  principle  of  equal  treatment  between  men  and  women  engaged  in  an  activity  in  a  self-
employed capacity and repealing Council Directive 86/613/EEC (COM(2008) 636). 

The proposal was forwarded to the European Parliament and the Council on 3 October 2008. 

The European Economic and Social Committee adopted an opinion on 24 March 2009. 

The European Parliament adopted its opinion on 6 May 2009 at first reading. 

During the plenary debate, the Commission adopted a position on the proposed amendments. 
The  Commission  did  not  adopt  an  amended  formal  proposal  as  a  result  of  the  European 
Parliament's opinion. 

The Council adopted its position in first reading by qualified majority on 8 March 2010. 

2. 

PURPOSE OF THE COMMISSION PROPOSAL 

The  aim  of  the  proposal  is  to  amend  the  Community  legal  framework  concerning  the 
application  of  the  principle  of  equal  treatment  between  women  and  men  to  self-employed 
workers and their spouses. 

It introduces substantial amendments to the existing Directive, which dates from 1986. Firstly, 
it  extends  the  concept  of  'spouse'  to  include  life  partners,  where  they  are  recognised  under 
national law. Secondly, the proposal provides that spouses who assist self-employed workers 
as  part  of  their  contribution  to  a  family  business  must,  if  they  so  request,  be  entitled  to  the 
same  level  of  social  protection  as  self-employed  workers  themselves.  Lastly,  the  proposal 
provides that self-employed female workers and assisting spouses should be granted, at their 
request,  maternity  leave  of  the  same  duration  as  that  provided  for  in  the  Directive  on  the 
protection of pregnant workers (14 weeks), remunerated, in principle, at a level equivalent to 
sick pay. 

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3. 

COMMENTS ON THE COUNCIL’S POSITION AT FIRST READING 

3.1. 

General remarks in brief 

The  Commission  notes  that  the  Council's  position  at  first  reading  differs  substantially  from 
the  Commission's  proposal  and  the  European  Parliament's  opinion,  primarily  with  regard  to 
social protection for assisting spouses. Whilst the Commission and the European Parliament 
take the view that assisting spouses should enjoy the same level of social protection as self-
employed workers themselves, the Council's position is restricted to guaranteeing their access 
to "social protection". 

Concerning  maternity  leave  for  self-employed  workers  and  assisting  spouses,  the  Council's 
position is closer to the amendment adopted by the European Parliament and accepted by the 
Commission  providing  for  the  principle  of  adapting  to  the  specific  needs  of  the  persons 
concerned. However, the Council's position on Article 7(3) concerning the appropriate level 
of  maternity  pay  is  even  further  away  from  the  positions  of  the  Commission  and  of  the 
European Parliament. 

3.2. 

Decision  taken  regarding  the  European  Parliament's  amendments  (first 
reading) 

3.2.1.  Amendments  incorporated  into  the  amended  proposal  and  the  Council's  position 

(first reading) 

The  Council's  position  takes  in  the  following  European  Parliament  amendments  to  the 
proposal, which had also been accepted by the Commission: 

- amendment 12: addition of an explicit reference to promoting women's entrepreneurship in 
the article on positive action; 

- amendment 13: drafting clarification concerning the conditions applicable to the creation of 
a business; 

- amendment 15: the text adopted by the Council establishes the gearing of the provision to 
the specific needs of self-employed workers and assisting spouses; 

-  amendment  18:  the  acknowledgement  of  the  work  of  assisting  spouses  is  mentioned  in 
recital 7 of the text adopted by the Council; 

-  amendment  22:  addition  concerning  the  competence  of  the  national  equality  bodies  with 
regard to exchanging information with their European counterparts; 

- amendment 23: new article on mainstreaming equality between men and women; 

- amendment 27: requirement that there be "particular difficulties" in order to be eligible for 
the additional period for implementation of the Directive; 

- amendment 28: addition of a new article on the nature of the "minimum requirements" in the 
proposal. 

3.2.2.  Amendments  incorporated  into  the  amended  proposal  but  not  included  in  the 

Council's position (first reading) 

-  amendments  21  and  22  on  the  equality  body:  the  Commission  had  accepted  these 
amendments  in  principle.  However,  the  Council  wanted  to  align  the  text  of  this  standard 

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provision with the most recent text concerning equality between men and women (the recast 
Directive1). The Commission accepted this principle. 

3.3. 

New provisions introduced by the Council, and the Commission's position 

Two  parts  of  the  Council's  position  (first  reading)  deserve  special  attention,  as  they  differ 
substantially from the Commission's proposal and the European Parliament's opinion. These 
are Articles 6 and 7(3) of the text  of  the Council's position, concerning, respectively,  social 
protection  for  assisting  spouses  and  maternity  pay  for  self-employed  workers  and  assisting 
spouses. 

The  Commission  has  defended  its  position  regarding  Article  6,  the  aim  of  which  is  to  give 
assisting  spouses  the  same  level  of  social  protection  as  self-employed  workers.  Given  that 
assisting spouses usually help with the work of the family business, any other approach would 
not be sufficient to achieve the objective of equality between women (who make up the vast 
majority of assisting spouses) and men (who make up the majority – 2/3 – of self-employed 
workers). 

During  the  negotiations  in  the  Council,  it  became  clear  that  any  attempt  to  approximate  the 
level  of  protection  granted  to  self-employed  workers  and  that  afforded  to  assisting  spouses 
would  be  opposed  by  many  Member  States.  The  Commission  therefore  emphasised  that, 
although it constituted a substantial change to its text which rendered it much less ambitious, 
it  would  go  along  with  it  so  as  to  enable  the  Council  to  reach  political  agreement,  which 
would not be possible otherwise. The Commission took the view that the text adopted by the 
Council  was  a  great  improvement  on  the  current  situation,  for  both  self-employed  workers 
and  their  assisting  spouses.  For  self-employed  workers  and  assisting  spouses,  the  new 
provisions  on  maternity  pay  establish,  for  the  first  time  at  EU  level,  an  entitlement  to  an 
allowance  for  leave  from  work  for  at  least  14  weeks.  With  regard  to  the  specific  issue  of 
assisting spouses and life partners, the provisions adopted by the Council will entitle them to 
social protection in their own name, regardless of the type of system and any entitlement to 
'derived' social protection (through of the self-employed worker). 

The Commission also took into account that, given the opposition in principle of two Member 
States  to  any  legislation  in  this  area,  the  Council  would  not  be  able  to  make  a  unanimous 
decision. 

At the meeting of the Council of the European Union on 30 November 2009, the Presidency 
amended its compromise proposal to incorporate a proposal to let Member States choose the 
level  of  maternity  pay.  Here,  too,  the  Commission  did  not  object  so  as  to  not  obstruct  the 
Council's political agreement. 

4. 

CONCLUSION  

In the light of the above, the Commission, whilst admitting that the position of the Council at 
first reading does not correspond, on several key points, to its proposal, nevertheless considers 
that  the  only  way  to  allow  the  procedure  to  move  forward  is  to  refrain  from  making  any 
objections to the Council's position at first reading. 

1 

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) (OJ L204, 26.7.2006, p. 23). 

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