CELEX: 51983PC0217
Language: en
Date: 1983-04-29
Title: PROPOSAL FOR A COUNCIL DIRECTIVE ON THE IMPLEMENTATION OF THE PRINCIPLE OF EQUAL TREATMENT MEN AND WOMEN IN OCCUPATIONAL SOCIAL SECURITY SCHEMES

21.5.83                             Official Journal of the European Communities                              No C 134/7
                                                             II
                                                      (Preparatory Acts)
                                                COMMISSION
             Proposal for a Council Directive on the implementation of the principle of equal
                         treatment for men and women in occupational social security schemes
                               (Submitted by the Commission to the Council on 5 May 1983)
THE COUNCIL OF THE EUROPEAN                                       Council adopted to this end Directive 79/7/EEC of
COMMUNITIES,                                                       19 December 1978 on the progressive implementation
                                                                  of the principle of equal treatment for men and
Having regard to the Treaty establishing the                      women in matters of social security ( 2 );
European Economic Community, and in particular
Article 100 thereof,
                                                                  Whereas Article 3 (3) of Directive 79/7/EEC
                                                                  provides that, with a view to ensuring implementation
Having regard to the proposal from the Commission,
                                                                  of the principle of equal treatment in occupational
Having regard to the opinion of the European                      schemes, the Council, acting on a proposal from the
Parliament,                                                       Commission, will adopt provisions defining its
                                                                  substance, its scope and the arrangements for its
Having regard to the opinion of the Economic and                  applications;
Social Committee,
                                                                  Whereas the principle of equal treatment should be
Whereas Article 119 of the Treaty provides that each              implemented in occupational social security schemes
Member State shall ensure the application of the                  which provide protection against the risks specified in
principle that men and women should receive equal                 Article 3 (1) of Directive 79/7/EEC as well as those
pay for equal work; whereas, for the purpose of the               which provide, to employees, any other consideration
said Article, pay means the ordinary basic or                     in cash or in kind within the meaning of Article 119;
minimum wage or salary and any other consideration,
whether in cash or in kind, which the worker                      Whereas implementation of the principle of equal
receives, directly or indirectly, in respect of his               treatment does not prejudice the provisions relating to
employment from his employer;                                     the protection of women on the ground of maternity,
Whereas, although Article 119 does indeed apply
directly in cases where discrimination can be
determined solely on the basis of the criteria of equal           HAS ADOPTED THIS DIRECTIVE:
treatment and equal pay, there are also possible
situations in which achievement of the principle of                                        Article 1
equal pay implies the adoption of additional measures
which more clearly define its scope;                              The object of this Directive is to implement, in
                                                                  occupational social security schemes, the principle of
Whereas Article 1 (2) of Council Directive                        equal treatment for men and women, hereinafter
76/207/EEC       of 9 February             1976 on      the       referred to as 'the principle of equal treatment'.
implementation of the principle of equal treatment for
men and women as regards access to employment,
vocational training and promotion, and working                                            Article 2
conditions (') provides that, with a view to ensuring
the progressive implementation of the principle of                1.    'Occupational schemes' means schemes whose
equal treatment in matters of social security, the                purpose is to provide workers, whether employees or
Council, acting on a proposal from the Commission,                self-employed, in an undertaking or group of under-
will adopt provisions defining its substance, its scope           takings or an occupational sector or group of such
and the arrangements for its application; whereas the             sectors, with benefits intended to supplement the
(') OJ No L 39, 14. 2. 1976, p. 40.                               O OJ No L 6, 10. 1. 1979, p. 24.
 ---pagebreak--- No C 134/8                          Official Journal of the European Communities                              21.5.83
benefits provided by statutory social security schemes      2.      The principle of equal treatment shall not
or to replace them, whether affiliation to such             prejudice the provisions relating to the protection of
schemes is compulsory or optional.                          women on the ground of maternity.
2.    This Directive shall cover all occupational
schemes, whether or not declared compulsory by
administrative measures.
                                                                                      Article 6
                                                             1.     Provisions contrary to the principle of equal
                        Article 3                            treatment shall include those based on sex, either
                                                             directly or indirectly, in particular by reference to
This Directive shall apply to members of the working         marital or family status, intended inter alia to:
population, including self-employed persons, whose
activity is interrupted by illness, accident or              (a) specify those persons who may participate in an
involuntary unemployment, to persons seeking                      occupational scheme;
employment and to retired and disabled workers.
                                                             (b) fix the compulsory or optional nature of par-
                                                                  ticipation in an occupational scheme;
                        Article 4
This Directive shall apply to:                               (c) lay down different rules as regards the age of
                                                                  entry into the scheme or the minimum period of
(a) occupational schemes which provide protection                 employment or affiliation to the scheme required
    against the following risks:                                  to obtain the benefits thereof;
    — sickness,
                                                             (d) lay down different rules for the reimbursement of
    — invalidity,
                                                                  contributions where a worker leaves a scheme
    — old age,                                                    without      having    fulfilled  the     conditions
    — industrial accidents and occupational diseases,             guaranteeing him a deferred right to long-term
                                                                  benefits;
    — unemployment;
(b) occupational schemes which provide for other             (e) set different conditions for the grant of benefits
    social benefits, in cash or in kind, and in                   or restrict such benefits to workers of one sex
    particular survivors' benefits, family allowances             only;
    and benefits in respect of various periods of leave
    for family reasons, if such benefits are accorded        (f) fix different retirement ages;
    to employed persons and thus constitute a
     consideration paid by the employer to the worker        (g) suspend the retention or acquisition of rights
     by reason of the latter's employment.                        during periods of maternity leave or family leave
                                                                  granted by law or collective agreement;
                                                             (h) provide for benefits whose level or amount differ
                        Article 5
                                                                  and, in particular, set the level of benefits by
1.    The principle of equal treatment shall imply that           taking into account different factors of calcu-
there be no discrimination whatsoever on the basis of             lation, actuarial or otherwise, with regard to the
sex, either directly or indirectly by reference in                phenomena of ill health, mortality or life
particular to marital or family status, especially as             expectancy;
regards:
                                                              (i) set contributions at different rates, in particular
— the scope of the schemes and the conditions of                   by taking into account the factors of calculation
    access thereto,                                                mentioned under (h);
— the obligation to contribute and the calculation of
    contributions,                                            (j) lay down different standards or standards
                                                                   applicable only to workers of a given sex as
— the calculation of benefits, including sup-                      regards the guarantee or retention of entitlement
    plementary benefits due in respect of a spouse or              to deferred benefits where a worker leaves a
    dependants, and the conditions governing the                   scheme or as regards the transfer of such
    duration and retention of entitlement to benefits.             entitlement to another scheme.
 ---pagebreak--- 21.5.83                           Official Journal of the European Communities                            N o C 134/9
2.    Where the grant of certain subsidiary benefits is       Article 6 (1) (h), in so far as they are calculated on
left to the discretionary power of a scheme's                 the basis of different actuarial data for each sex,
management bodies, the said bodies must take                  whether they are already settled and being paid or to
account of the principle of equal treatment.                  be settled and paid in due course and which relate to
                                                              a period of affiliation to an occupational scheme prior
                         Article 7                            to the revision of that scheme as provided for in
                                                              Article 8, from continuing to be governed by the
Member States shall take all necessary measures to            provisions of the occupational scheme in force during
ensure that:                                                  the period of affiliation.
(a) provisions contrary to the principle of equal
                                                              2.    This Directive shall also be without prejudice to
    treatment in collective agreements, staff rules of
                                                              the establishing of appropriate methods, such as the
    undertakings or any other arrangements relating
                                                              payment of retroactive contribution supplements,
    to occupational schemes are null and void, or
                                                              which guarantee equal benefits for the earlier period
    may be declared null and void or amended;
                                                              of affiliation.
(b) schemes containing such provisions may not be
    approved      or     declared      compulsory     by                              Article 11
    administrative measures.                                  Member States shall introduce into their national
                                                              legal systems such measures as are necessary to enable
                         Article 8                            all persons who consider themselves injured by a
                                                              failure to apply the principle of equal treatment to
Member States shall take all necessary measures to
                                                              pursue their claims before the courts, possibly after
ensure that provisions of occupational schemes
                                                              bringing the matters before other competent auth-
contrary to the principle of equal treatment are
                                                              orities.
revised before 1 January 1986.
                                                                                      Article 12
                         Article 9
                                                              Member States shall take all measures necessary to
1.    This Directive shall be without prejudice to the        protect workers against dismissal where this
right of Member States to defer compulsory                    constitutes a response on the part of the employer to
application of the principle of equal treatment with          a complaint made within an undertaking or to the
regard to:                                                    institution of legal proceedings aimed at enforcing
                                                              compliance with the principle of equal treatment.
(a) determination of pensionable age for the purposes
    of granting old-age or retirement pensions;                                       Article 13
(b) pension awarded to the surviving spouse.
                                                              1.    Member States shall bring into force such laws,
2.    The right referred to above may be exercised            regulations and administrative provisions as are
provided that the principle of equal treatment has not        necessary in order to comply with this Directive
yet been implemented in the corresponding provisions          before 1 January 1985. They shall immediately inform
of statutory social security schemes.                         the Commission thereof.
3.    Compulsory implementation of the principle of           2.    Member States shall communicate to the
equal treatment shall not under any circumstances be          Commission, before 1 January 1987, all information
deferred beyond the date on which such equality is            necessary to enable the Commission to draw up a
achieved in statutory schemes.                                report on the application of this Directive for
                                                              submission to the Council.
                        Article 10
                                                                                      Article 14
1.    This Directive shall be without prejudice to the
methods of calculating the benefits referred to in            This Directive is addressed to the Member States.