CELEX: 51997PC0624
Language: en
Date: 1997-11-25
Title: Re-examined proposal for a Council Directive on the burden of proof in cases of discrimination based on sex

COMMISSION OF THE EUROPEAN COMMUNITIES
                                      Brussels, 25.11.1997
                                      COM(97) 624 final
                                      96/0196 (PRT;
                Re-examined proposal for a
                 COUNCIL DIRECTIVE
on the burden of proof in cases of discrimination based on sex
(presented by the Commission pursuant to Article 189 c (d)
                    of the EC Treaty)
 ---pagebreak---  ---pagebreak---                          EXPLANATORY MEMORANDUM
The initial proposal for a Council Directive on the burden of proof in cases of
discrimination based on sex, based on Article 2 (2) of Protocol (N°14) on social policy,
annexed to the Treaty, was submitted by the Commission to the Council on 20
September 19961.
The main aim pursued by this proposal is to adjust the rules of the burden of proof in
cases of discrimination based on sex and to ensure that procedural measures taken by
Member States in this respect are made more effective.
The European Parliament and the Economic and Social Committee gave their opinion
on 10 April 19972 and 27 February 19973.
On 14 May 1997, the Commission transmitted to the Council an amended proposal4.
The Council agreed on a common position on 24 July 19975, which was adopted by
the European Parliament on 6 November 1997 subject to 6 amendments. Out of these
amendments, the Commission accepted four.
As regards the amendments accepted, the Commission has the following comments to
make.
Amendment 1
Subject     Insert in a recital a reference to the three social security Directives
             (79/7/CEE, 86/378/CEE and 86/613/CEE)
Comment Is in line with the Commission's opinion to include these three Directives
             in the scope of this Directive
Amendment 2
Subject     Re-inserts recital 12 of the Commission's original proposal about the
             necessity of adopting additional measures in this area
Comment Corresponds to the Commission's opinion. This recital explains the need
            to adopt additional measures to ensure an effective implementation of the
             principle of equal treatment
Amendment 3
Subject      Inserts in the definition of the concept of "indirect discrimination" more
             elements directly derived from the case-law
  OJN°C332, 17.11.1996, p. 11
  OJN°C132, 28.4.1997, p. 219
  OJN° €133,28.4.1997, p. 34
  OJN°C185, 18.6.1997, p. 21
  OJN°C307, 8.10.1997, p. 6
 ---pagebreak--- Comment Is more in line with the case-law of the Court of Justice
Amendment 4
Subject Inserts a reference to the three social security Directives in the scope of the
        Directive
Comment Is in line with the Commission's opinion. The Commission considers that
        the principle laid down by the Court as regards the shift of the burden of
        proof is a general one which should be applied in all Directives aimed at
        upholding the principle of equal treatment between the sexes.
 ---pagebreak---                  Re-examined proposal for a
                  COUNCIL DIRECTIVE
on the burden of proof in cases of discrimination based on sex
 ---pagebreak---          COMMON POSITION                     RE-EXAMINED PROPOSAL
                  Recital 8
Whereas the principle of equal treatment      Whereas the principle of equal treatment
was stated in Article 119 of the Treaty       was stated in Article 119 of the Treaty
and in Council Directive 75/117/EEC of        and in Council Directive 75/117/EEC on
10 February 1975 on the approximation         equal pay for men and women and in
of the laws of the Member States relating     Council Directive 76/207/EEC on access
to the application of the principle of equal  to employment, vocational training and
pay for men and women and in Council          promotion and working conditions,
Directive 76/207/EEC of 9 February 1976       Council Directive 86/613/EEC on
on the implementation of the principle of     workers engaged in an activity, including
equal treatment for men and women as          agriculture, in a self employed capacity,
regards access to employment, vocational      and on the protection of motherhood,
training and promotion and working            Council Directive 79/7/EEC on social
conditions;                                   security     and      Council    Directive
                                              86/378/EEC on occupational social
                                              security schemes
                                                           Recital lia (new)
                                              Whereas effective implementation of the
                                              principle of equal treatment requires that
                                              additional measures be taken in relation to
                                              procedure and evidence to be provided
                                              before national courts or other competent
                                              authorities;
                 Article 2.2                                  Article 2.2
For the purposes of the principle of equal    For the purposes of the principle of equal
treatment referred to in paragraph 1,         treatment referred to in paragraph 1,
indirect discrimination exists where an       indirect discrimination exists where an
apparently neutral provision, criterion or    apparently neutral provision, criterion or
practice disadvantages a substantially        practice disproportionately disadvantages
higher proportion of the members of one       the members of one sex, unless the aim
sex, unless that provision, criterion or      pursued corresponds to a real need on the
practice is appropriate and necessary and     part of the undertaking or meets a
can be justified by objective factors         necessary aim of the policy of a Member
unrelated to sex.                             State and can be justified by objective
                                                     s
 ---pagebreak---                                                factors unrelated to sex, and the means of
                                               achieving that aim are appropriate and
                                               necessary.
                Article 3. La
1. The Directive shall apply to:                1. The Directive shall apply to:
a) the situations covered by Article 119 of
                                               a) the situations covered by Article 119 of
the Treaty and by Directives 75/117/EEC,
                                               the Treaty and by Directives 75/117/EEC,
76/207/EEC and, insofar as discrimination
                                               76/207/EEC, 79/7/EEC, 86/378/EEC,
based on sex is concerned, 92/85/EEC
                                               86/613/EEC and, insofar as discrimination
and 96/34/EC;
                                               based on sex is concerned, 92/85/EEC
                                               and 96/34/EC;
The Commission cannot accept the following amendments proposed by the
Parliament
Amendment 5
Subject      Insertion of a new Article 4a (about procedures)
Comment The deletion of Article 5 of the Commission's original proposal in the
             common position, that the amendment wishes to re-insert, does not really
             do any harm. In fact, that Article provided for something which already
             exists, in one way or another, in all the Member States' legal systems.
Amendment 6
Subject      Inserts the obligation for the Member States to transmit on a regular basis
             information on the application of the Directive to the Commission, and
            for the Commission to draw up a report every three years.
Comment The wording of the common position is acceptable and is the outcome of a
             compromise which was difficult to reach.
 ---pagebreak---                                                                   ISSN 0254-1475
                                                           COM(97) 624 final
                                              DOCUMENTS
EN                                                                05 06 04
                                    Catalogue number : CB-CO-97-641-EN-C
                                                             ISBN 92-78-28037-2
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