CELEX: 51997PC0202
Language: en
Date: 1997-05-14
Title: Amended proposal for a Council Directive on the burden of proof in cases of discrimination based on sex

COMMISSION OF THE EUROPEAN COMMUNITIES
                                       Brussels, 14.05.1997
                                       COM(97) 202 final
                                       96/0196 (PRT)
                  Amended 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 a (2)
                     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 1996(1).
The main aim pursued by this proposal is to adjust the rules on 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 Committe gave their opinion
on 10 April 1997(2) and 27 February 1997(3) respectively.
In drawing up this amended proposal the Commission took into account the
amendments from the European Parliament which aim at strengthening the main
provisions of its original proposal, and in particular :
a)       the definition of the concept of "indirect discrimination". The amended
         proposal is more in line with the current case-law of the Court of Justice;
b)       the scope of the Directive. The amended proposal updates the original
         proposal and takes into account Directive 96/34/EC on the framework
         agreement on parental leave concluded by UNICE, CEEP and ETUC;
c)       the adjustment of the burden of proof. The amended proposal makes more
         apparent the link with the concept of indirect discrimination defined in Article 2
         of the proposal and the circumstances in which an adjustment of the burden of
         proof can occur.
This amendment is presented by the Commission under the terms of Article 189a (2) of
the Treaty.
(,)
    OJN°C332, 17.11.1996, p. 11
(2)
    OJ N° ...
(3)
    OJN°...
 ---pagebreak---     Amended Proposal for a Council Directive on the burden of proof in cases of
                                discrimination based on sex
         COMMISSION PROPOSAL                         AMENDED COMMISSION
                                                            PROPOSAL
THE COUNCIL OF THE EUROPEAN THE COUNCIL OF THE EUROPEAN
 UNION,                                        UNION,
 Having regard to the Agreement on social
policy annexed to the Protocol (N°14),
 annexed to the Treaty establishing the
European Community, and in particular
 Article 2(2) thereof,
 Having regard to the proposal from the
 Commission(1),
 Having regard to the opinion of the
 Economic and Social Committee(2)
 Acting in accordance with the procedure
 referred to in Article 189c of the EC
Treaty, in cooperation with the European
Parliament,
( 1 ) Whereas, on the basis of the Protocol
      on social policy annexed to the
      Treaty, the Member States, except
      the United Kingdom of Great Britain
      and Northern Ireland (hereinafter
      called "the Member States"), wishing
      to implement the Social Charter of
       1989, have established an Agreement
      on social policy;
(2) Whereas the Community Charter of
      the Fundamental Social Rights of
      Workers acknoledges the importance
      of combatting all forms of
      discrimination, especially those based
      on sex, colour, race, opinions and
(,)
    OJ N° C
(2)
    OJ N° C
 ---pagebreak---        beliefs ; whereas on 13 December
       1995 the Commission adopted a
       Communication0}         on      racism,
       xenophobia and anti-semitism;
 (3)    Whereas paragraph 16 of the
       Community         Charter    of     the
      Fundamental Social Rights of
       Workers concerning equal treatment
      for men and women provides, inter
      alia, that "action should be intensified
      to ensure the implementation of the
      principle of equality for men and
      women as regards in particular access
      to      employment,       remuneration,
      working conditions, social protection,
      eduction, vocational training and
      career development";
(4)    Whereas the Council, despite the
      existence of a broad consensus
      amongst the majority of the Member
      States, has not been able to act on the
      proposal(2) for a directive on the
      burden of proof in the area of equal
      pay and equal treatment for women
      and men;
(5)   Whereas the European Parliament in
      its Resolution of January 1994(3) on
      the White Paper on European social
      policy asked the Commission to
      present a proposal for a directive
      regarding the burden of proof;
(6)     Whereas the Commission, in
      accordance with Article 3(2) of the
      Agreement on social policy, has
      consulted the social partners at
      Community level on the direction
      Community action might take with
      respect to the burden of proof in
      cases of discrimination based on sex;
(7)   Whereas the Commission, considering
      Community action advisable after
      such consultation, once again
      consulted those social partners on the
      content of the envisaged proposal in
      accordance with Article 3(3) of the
(,)
    COM(95)653 final
(2)
    OJ N°C 176, 5.7.1988, p.5
(3)
     OJN°C43, 20.5.1995, p.63
 ---pagebreak---     said Agreement ; and whereas the
    latter forwarded their opinion to the
    Commission;
(8) Whereas, after the second round of
    consultation, the social partners have
    not informed the Commission on their
    wish to initiate the process - possibly
    leading to an agreement - provided
    for in Article 4 of the said
    Agreement;
(9) Whereas, in accordance with Article I
    of the Agreement, the Community
    and the Member States have set
    themselves the objective of improving
    living and working           conditions;
    whereas effective implementation of
    the principle of equal treatment for
    men and women contributes to
    achieving this aim;
(ÎO)Whereas the principle of equal (10) Whereas the principle of equal
    treatment has been set out in Article           treatment has been set out in Article
     119 of the EC Treaty and in Council             119 of the EC Treaty and in Council
    Directive 75/117/EEC on equal pay               Directive 75/117/EEC on equal pay
    for men and women, as well as in                for men and women 0 \ as well as in
    Council Directive 76/207/EEC on                 Council Directive 76/207/EEC on
    access to employment, vocational                access to employment, vocational
    training and promotion and working              training and promotion and working
    conditions,       Council     Directive         conditions<2)     Council         Directive
    86/613/EEC on workers engaged in                86/613/EEC on workers engaged in
    an activity, including agriculture, in a       an activity, including agriculture, in a
    self-employed capacity, and on the             self-employed capacity, and on the
    protection of motherhood, Council              protection of motherhood(3) , Council
    Directive 79/7/EEC on social security          Directive      79/7/EEC        on     social
                                                             (4)
    and Council Directive 86/378/EEC               security ,        Council         Directive
    on occupational social security                86/378/EEC on occupational social
    schemes;                                       security schemes(5), Council Directive
                                                   96/34/EC       on     the       framework
                                                   agreement       on     parental       leave
                                                  concluded by UNICE, CEEP and the
                                                  ETUC(6)
                                             U)
                                                 OJN°L 45,19.2.1975, p. 19
                                             (2)
                                                 OJN°L39, 14.2.1976, p.40
                                             (3)
                                                 OJN°L359, 19.2.1986, p.56
                                             <4)
                                                 OJN°L6, 10.1.1979, p.24
                                             (5)
                                                 OJ N° L 225, 12.8.1986, p.40, as amended by
                                             Directive 96/97/EC of 20.12.1996, OJ L 46 of
                                              17.2.97, p. 20
                                             (6)
                                                 OJN°L 145, 19.6.1996, p.4
 ---pagebreak--- (ll)Whereas Council Directive 92/85 on
       health and safety at work of pregnant
       workers and workers who have
       recently     given    birth     or    are
       breastfeeding0} also contributes to
       effectively achieving the principle of
       equal treatment between men and
       women, whereas that Directive
       should not work to the detriment of
       the      aforementioned        directives
       concerning equal treatment; whereas
       workers covered by that Directive
       should equally benefit from the
       change of the rules regarding the
       burden of proof;
(12)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;
(13)Whereas plaintiffs would be deprived
        of any effective means of enforcing
       the principle of equal treatment
       before the national courts if the effect
       of introducing evidence of an
        apparent discrimination was not to
        impose upon the defendant the
        burden of proving that his practice is
        not in fact discriminatory;
 (14)Whereas the Court of Justice of the
       European Communities has therefore
       held (2) that the rules regarding the
       burden of proof must change when
       there is a prima facie case of
        discrimination and that, for the
        principle of equal treatment to be
        applied effectively, it must revert to
(,)
     OJ N°L 348, 28.11.1992,p.l
 {2)
     Judgment of 17 October 1989 in Case C-109/88,
Danfoss,\\989JECR3199, paragraph 16; judgment
 of 30 June 1988 in Case C-138/86, Commission v.
France, [1988JECR 3559, paragraph 27); judgment
of 27 October 1993 in Case C-127/92 Encierby v.
Frenchay Health Authority, [1993JECR 1-5535,
 paragraphs 13 and 14; and judgement of 31 May 1995
 in Case C-400/93, Royal Copenhagen, [1995] ECR
 1-1275, paragraph 24.
 ---pagebreak---       the defendant when evidence of such
      discrimination is brought;
 (ÎS)Whereas it is all the more difficult to (15)Whereas it is ail the more difficult to
      prove that discrimination exists when      prove that discrimination exists when
      it is indirect; and whereas it is          it is indirect; and whereas, given that
      therefore important to define indirect     the     concept     has    not     been
      discrimination precisely;                  incorporated into national law in ail
                                                 Member States, it is therefore
                                                 important       to   define     indirect
                                                 discrimination precisely, and provide
                                                 for criteria whereby it can be
                                                 established whether or not indirect
                                                 discrimination exists;
 (16) Whereas the aim of achieving an (16)Whereas the aim of ensuring an
      adequate shift in the burden of proof      adequate shift in the burden of proof
      is not achieved satisfactorily in the      has not been achieved satisfactorily in
      Member States and in accordance            the Member States and in accordance
     with the principles of subsidiarity and     with the principles of subsidiarity and
     proportionality set out in Article 3 b      proportionality set out in Article 3b
     of the Treaty establishing the              of the Treaty establishing the
     European Community; this aim must           European Community; this aim must
     be attained at Community level;             be attained at Community level;
     whereas this Directive confines itself      whereas this Directive confines itself
     to the minimum action required and          to the minimum action required and
     does not go beyond what is necessary        does not go beyond what is necessary
     for that purpose.                           for that purpose,
HAS ADOPTED THIS DIRECTIVE
     Chapter I : General Provisions
                  Article J
                    Aim
The aim of this Directive is to ensure that
measures taken by the Member States in
the application of the principle of equal
treatment in order to enable all persons,
who consider themselves wronged by
failure to apply to them the principle of
equal treatment, to pursue their claims by
judicial process after the possible recourse
to other competent authorities, are made
more effective
 ---pagebreak---                   Article 2                                   Article 2
                 Definitions                                 Definitions
For the purposes of this Directive, the     For the purposes of this Directive, the
principle of equal treatment shall mean the principle of equal treatment shall mean the
absence of any discrimination based on      absence of any discrimination based on
sex, either directly or indirectly,         sex, either directly or indirectly, inter alia
particularly by reference to marital or     by reference to marital or family status.
family status.
                                            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 disproportionately disadvantages
practice disproportionately disadvantages   the members of one sex, by reference
the members of one sex, by reference in     inter alia to marital or family status,
particular to marital or family status,     unless the aim pursued corresponds to a
unless the aim pursued by the application   real need of the undertaking or meets a
of the provision, criterion or practice is  necessary aim of the social policy of a
objectively justified and the means of      Member State, in itself is completely
achieving it are appropriate and necessary. unrelated to sex and as such is objectively
                                            justified and unless the means of achieving
                                            this aim are appropriate and necessary.
                  Article 3                                   Article 3
                    Scope                                       Scope
 1. This Directive shall apply to :          1. This Directive shall apply to :
(a) the situations envisaged by Article (a) the situations envisaged by Article
      119 of the Treaty and Directives            119 of the Treaty and Directives
     75/117/EEC,                76/207/EEC,       75/117/EEC,               76/207/EEC,
     79/7/EEC, 86/378/EEC, 86/613/EEC             79/7/EEC,                 86/378/EEC,
     and 92/85/EEC,                               86/613/EEC,        92/85/EEC        and
                                                  96/34/EC;
(b) the situations envisaged by any
     Community measure adopted in the
     future relating to the principle of
     equal treatment which does not
     expressly exclude its application;
(c) any civil or administrative proced ure
     concerning the public or private
     sectors which provides for means of
     redress under national law in
     pursuance of the measures referred to
     in points (a) and (b).
2. This Directive shall not apply to
criminal procedures, unless otherwise
 ---pagebreak--- provided for by the Member States.
     Chapter II : Specific provisions              Chapter II : Specific provisions
                   Article 4                                    Article 4
              Burden of proof                               Burden of proof
 I. Member States shall take such 1. Member States shall take such
measures as are necessary in accordance measures as are necessary in accordance
with their national judicial systems :         with their national judicial systems :
(a) to ensure that where persons who (a) to ensure that where persons who
     consider themselves wronged by                consider themselves wronged by
     failure to apply to them the principle        failure to apply to them the principle
     of equal treatment establish, before a        of equal treatment as defined in
     court or other competent authority,           Article 2 establish, before a court or
     facts from which discrimination may           other  competent authority, a fact or
     be presumed to exist, it shall be for         facts from which discrimination may
     the respondent to prove that there has        be  presumed to exist, it shall be for
     been no contravention of the principle        the respondent to prove that there has
     of equal treatment. The plaintiff shall       been no contravention of the principle
     benefit from any doubt that might             of equal treatment. The plaintiff shall
     remain;                                       benefit from any doubt that might
                                                   remain;
(b) to ensure that it is for the defendant,
     when it applies a system or a decision
     lacking transparency, to prove that
     the apparent discrimination is due to
     objective factors unrelated to any
     discrimination based on sex;
(c) to ensure that the plaintiff does not (c) deleted
     have to prove the existence of any
     fault on the part of the defendant to
     establish      that     the    ban     on
     discrimination based on sex has been
     infringed.
2. This Directive does not prevent
Member        States     from     introducing
evidential rules which are more favourable
to the plaintiff.
                   Article 5
                  Procedures
Member States shall introduce into their
national legal systems such measures as
are necessary to ensure that:
 ---pagebreak---  (a) the courts and other competent
      authorities may give such directions
      as are necessary for an effective
      investigation of any complaint
      relating to discrimination;
 (b) the parties concerned have all the
      relevant information in the possession
      of the other party or which may
      reasonably be assumed to be in its
      possession and which is necessary for
      them to exercise their rights. Parties
      are required to provide only pieces of
      information whose disclosure would
      not substantially damage their interess
      in connection with matters other than
      the litigation concerned.
       Chapter III : Final provisions
                    Article 6
                  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 relevant
persons by all appropriate means, for
exaple at their place of employment.
                    Article 7                                   Article 7
                Non-regression                               Non-regression
Implementation of the provisions of this      Implementation of the provisions of this
Directive shall under no circumstances be     Directive shall under no circumstances be
sufficient grounds for justifying a           sufficient grounds for justifying an
reduction in the general level of             absence of positive action measures or a
protection of workers in the area to which    reduction in the general level of
it applies, without prejudice to the right of protection of workers in the area to which
the Member States tô respond to changes       it applies, without prejudice to the right of
in the situation by introducing laws,         the Member States to respond to changes
regulations and contractual arrangements      in the situation by introducing laws,
which differ from those existing when this    regulations and contractual arrangements
Directive was notified, as long as the        which differ from those existing when this
minimum requirements in the Directive         Directive was notified, as long as the
are complied with.                            minimum requirements in the Directive
                                              are complied with.
                   Article 8                                    Article 8
               Implementation                               Implementation
 ---pagebreak--- Member States shall bring into force the      Member States shall bring into force the
laws, regulations and administrative          laws, regulations and administrative
provisions necessary to comply with this      provisions necessary to comply with this
Directive by 1 January 2001. They shall       Directive by 1 January 2000. They shall
immediately inform the Commission             immediately inform the Commission
thereof.                                      thereof.
When Member States adopt these                When Member States adopt these
provisions, these shall contain a reference   provisions, these shall contain a reference
to this Directive or shall be accompanied     to this Directive or shall be accompanied
by such reference at the time of their        by such reference at the time of their
official publication. The procedure for       official publication. The procedure for
such reference shall be adopted by            such reference shall be adopted by
Member States.                                Member States.
                                              Not more than two years after the date of
                                              implementation of this Directive, and
                                              every three years thereafter, Member
                                              States shall transmit information to the
                                              Commission with respect to progress
                                              made in the application of this Directive
                                              and trends in the use of provisions
                                              contained therein, to enable the
                                              Commission to draw up a report for the
                                              Council and European Parliament every
                                              three years.
                  Article 9
                Addressees
This Directive is addressed to the Member
States.
                                           10
 ---pagebreak---  ---pagebreak---                                                                   ISSN 0254-1475
                                                            COM(97) 202 final
                                              DOCUMENTS
EN                                                                       04 05
                                    Catalogue number : CB-CO-97-186-EN-C
                                                             ISBN 92-78-19399-2
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