CELEX: 51988PC0269
Language: en
Date: 1988-05-24
Title: Proposal for a COUNCIL DIRECTIVE on the burden of proof in the area of equal pay and equal treatment for women and men (presented by the Commission)

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 ---pagebreak--- COMMISSION OF THE EUROPEAN COMMUNITIES
                                      COM(88 > 269 final
                                      Brussels , 24 May 1988
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                           Proposai for a
                         COUNCIL DIRECTIVE
         on the burden of proof in the area of equal pay
              and equal treatment for women and men
                  ( presented by the Commission )
 ---pagebreak---                         K X P L A N A K ) RY M K M O R A N Dl M
I. INTRODUCTION
1.      Community law currently in foa'e concerning the principle of equality consists of
    Article 1 19 of the Treaty and the three Council Directives implementing that principle :
    equal pay 1 , equal treatment2 and statutory social security schemes3 . Two more
    directives adopted in 1986 will enter into force in the future : occupational social security
    schemes4 and the self-employed 5 .
2 . Most national legal systems have a general rule in civil cases that complainants must
    prove their case on a balance of probabilities . If the respondent can provide an
    explanation which raises a doubt as to the validity of the complaint , the case falls
    because the persuasive burden remains on the complainant .
3 . In sex discrimination cases this practice places the burden on the complainant to show
    that the alleged discrimination was unlawful . However, special problems of proof exist
    in such cases , because the relevant evidence is often in the hands of the respondent , and
    because of the widespread but unvoiced and often unconscious prejudice which distorts
    acts or decisions affecting women and persons with family responsibilities .
1 Council Directive 75/ 1 17/EEC of 10 February 1975 on the approximation of the laws
of the Member States relating to the application of the principle of equal pay for men and
women , O.J. No . L 45 , 19.2.1975 , p. 19
2 Council Directive 76/207/EEC of 9 February 1976 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, O.J. No.L 39 , 14.2.1976 ,
p. 40
n Council Directive 79/7/F.EC of 19 December 1978 on the progressive implementation
of the principle of equal treatment for men and women in matters of social security , O.J.
No . L 6 , 10.1.1979 , p. 24
4 Council Directive 86/378;EEC of 24 July 1986 on the implementation of the principle
of equal treatment for men and w omen in occupational social security schemes and se It -
employed workers, OJ No. L 225 , 12.8.86 , p.40
5 Council Directive 86/613/EEC of 1 1 December 1986 on the implementation 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 No. L 359 , 19.12.86, p.56
 ---pagebreak---                                                                                               2
4 . Procedural problems encountered by complainants have been identified in all the Member
     States which have the effect of depriving the substantive rights provided by Community
     law of much of their force . The main such problem is that of the burden of proof,
     which is difficult and sometimes impossible in the normal course of events for an
     aggrieved complainant to establish . There are also closely related problems concerning
     the willingness of courts or tribunals to draw inferences from the evidence that is
     presented , which can give rise to difficulties for complainants wherever the burden of
     proof is placed, the obtaining of evidence by the courts and by the parties , and the
     understanding and the application of the concept of indirect discrimination.
5 . The New Community Action Programme on the Promotion of Equal Opportunities for
     Women 1982 - 1985 1 noted that “ workers, and female workers in particular, made little
     use of the arrangements for redress provided for by national law . The inflexibility of
     the procedures on the one hand , and the difficulty of assembling evidence of
     discrimination on the other, explain this reticence in part ... The experience of some
     Member States with respect to the reversal of the burden of proof ... should likewise be
     brought to the attention of the other Member States.” The Programme therefore
     provided that
     workers should be encouraged " to avail themselves of little-used means of redress
     (including reversal of the burden of proof)”2 ;
     and the Commission should conduct a comparative analysis of national procedures with
     a view to proposing Community action which would lead to improvements in legal
     redress .
6 . This comparative analysis found that " the burden (of proof) placed on the complainant
     was a problem " and recommended “ that the burden of proof should be formally altered
     in each Member State , so that the complainant has to show only that she has been less
     favourably treated and that the person more favourably treated was of the opposite sex .
     The burden would then shift to the alleged discriminator to show that his reason for the
     treatment was not the complainant's sex.”3
7 . The expert network on the application of the equality directives , which was created
     under the Action Programme , has confirmed in its Reports that a serious problem exists
     which has resulted in the failure by many applicants in establishing legitimate claims
     notwithstanding strong circumstantial evidence of discrimination .
* Supplement 1/82 - Bull. EC.
2 Action 2, Legal Redress in respect of equal treatment
3 Corcoran and Donnelly, Comparative Analysis of the Provisions for Legal Redress in
Member States of the EEC, V/564/84 , Recommendation No. 5 , p.80
 ---pagebreak---                                                                                               3
8 . The European Parliament called for action in this area in its Report of May 1984 on
     “The situation of Women in Europe”, in which it specifically called upon the
     Commission “ to submit proposals ... to reverse the rules on the burden of proof...” 1 .
9 . The Medium Term Community Programme on Equal Opportunities for Women 1986-
      1990 noted the significance of the burden of proof with regard to legal redress and
     provided that the Commission would put forward “a Community legal instrument on the
     principle of the reversal of the burden of proof applying to all equal opportunities
     measures.” 2 The Programme urged Member States to carry out “a review of the
     provisions relating to the burden of proof, to ensure that persons subject to
     discrimination will not be required to undertake a task which is often impossible.”3
10 . The Council , in its Second Resolution on the promotion of equal opportunities for
     women , supported the broad outlines of the Programme and called upon Member
     States to take action to “ensure effective application of existing equal treatment
     legislation , particularly through ... the examination of all aspects of the problems
     relating to the establishment of the burden of proof’4 .
11 . The Council subsequently , in its Resolution on an action programme on employment
     growth , expressed its commitment to take the decisions and measures necessary to
     achieve an increase in the equality of access to, and opportunity within , the labour
     market for women by the implementation of the Community 's Medium Term
     Programme 1986-1990. 5
12 . The Economic and Social Committee recommended that there be a flexible directive on
     the burden of proof which would both “ help to redress the continuing infringement of
     equal rights” and “encourage and stimulate good employment practices and modern
     personnel techniques”6. The Advisory Committee on Equal Opportunities for Women
     and Men felt that a Directive would be the most appropriate instrument to bring about a
     modification of the burden of proof, and that the elements set out in Section II of the
     proposal would be the most appropriate content of a Directive7 .
1 Report of Inquiry No. 1 on “The Implementation of the First Two Directives”, p. 43
2 Supplement 3/86 - Bull. EC., § 19.c
3 ibid. , § 18 . b .4
4 Council Resolution of 24 July 1986, OJ No. C 203 of 12.8.1986, p.2, §§4 , 5
5 Council Resolution of 22 December 1986, OJ No. C 340 of 31.12.1986, p.2 , § 2(0
6 Opinion of 24 April 1986 on Equal Opportunities for Women - Medium Term
Community Programme - 1986-1990, § 3.1.2
7 Op-nion of 15 May 1987
 ---pagebreak---                                                                                                 4
II .    Modification of the burden of proof in existing law
1 . The modification of the burden of proof already exists in principle in national law on
      sex discrimination , employment protection , and more general areas . The major problem
     is its application in practice, with national courts having to apply unfamiliar concepts.
2 . In principle, analysis of equal opportunities legislation necessarily involves some
     shifting of the burden between the parties . Once a complainant has established that
     discrimination has taken place , the burden should shift to the respondent to prove
     objective grounds not based on sex . However, particularly in the area of equal
     treatment, national courts and tribunals have not always found it possible to balance the
     burden between the parties in this way so as to make the legislation effective.
3 . This is particularly the case with regard to indirect discrimination , which has not always
     been adequately understood in many national legal systems. However, the elements of a
     definition, including the requirement on the respondent to show objective justification
     for a facially neutral but discriminatory rule or condition , may now be derived from the
     jurisprudence of the Court of Justice 1 , from national legislation2 and guidelines, and
     from statements by the Commission itselP .
4 . In the area of employment protection , the burden of proof is often mixed between the
     parties . In maternity protection cases , the initial burden of proof is placed upon the
     employer in some jurisdictions , while in others the evidential burden passes to the
     employer once the employee has established a prima facie case . The legislation relating
     to unfair dismissal in most Member States places the burden of proving the presence of
     an admissible ground upon the employer. This is the result of the public administrative
     procedures involved in some jurisdictions , or because legal procedures in others place
     the burden specifically on the employer.
5 . Community law on Consumer Protection and the consequent implementing national
     legislation , is another example of the shifting of the burden , this time of a complete
     reversal . The Product Liability Directive of 1985 places the legal burden on the
     respondent, the producer, to disprove liability for a defective product which has caused
     damage to a consumer4.
1 Case 96/80, Jenkins v Kingsgate [ 1981 ] ECR 911 ; Case 170/84, Bilka-Kaufhaus v
Weber von Hartz, decision of 13 May 1986 , as yet unreported ; Case 30/85 , Teuling-
Worms v Bestuur van de Bedrijfsvereniging voor de Chemie , decision of 1 1 June
1987 , as yet unreported
2 Ireland, the Employment Equality Act 1977 , section 2(c); Great Britain, the Sex
Discrimination Act 1975 , sections 1(1 )(b) and 3(1 )(b)
3 Interim Report on the application of Directive 79/7/EEC of 19 December 1978 on the
progressive implementation of the principle of equal treatment for men and women in
matters of social security , COM(83 ) 793 final , pp.5-10
4 Council Directive 85/374/EEC of 25 July 1985 on the approximation of the laws,
regulations and administrative provisions of the Member States concerning liability for
defective products , OJ No . L 210 , 7.8.85 , p.29 , article 1
 ---pagebreak---  Ill   COMMENTARY ON THE ARTICLES
 The proposal for a directive comprises three sections - general provisions, substantive
 provisions relating to the burden of proof, the definition of indirect discrimination and
 the obtaining of evidence, and provisions regarding implementation . The wording of
 the proposal is closely based on existing directives, with a view to clarity and
consistency .
The existing directives on equality have been adopted by the Council on various legal
bases. Given that all these measures are to be covered by this proposal , it is necessary ,
essentially for technical reasons , to use Article 100 and Article 235 of the Treaty as the
 legal basis .
Section I , " General Provisions”
This Section deals with the purpose and the scope of the Directive.
Article 1 - purpose
This article states the purpose of the Directive. As envisaged in the Medium Term
Community Programme on equal opportunities for women , this directive forms part of
the policy aimed at achieving equal treatment by strengthening the effective application
in practice of national legislation incorporating Community law.
The wording of paragraph 1 is closely based on Article 6 of Council Directive
76/207/EEC. Paragraph 2 sets out existing Community provisions which embody the
principle of equality .
Article 2 - scope
The directive is intended to apply to all Community law on equality and thereby to
national procedures for redress in all sectors , public and private , other than in the area
of criminal procedure .
Paragraph 1 sets out where the directive does apply . Sub-paragraph (a) refers to
existing Community law on equality , whilst sub-paragraph ( b ) applies this directive to
any future instruments 1 which do not expressly exclude its application . Following the
jurisprudence of the Court of Justice2 , sub-paragraph (c ) applies the directive to national
procedures in both the public and private sectors .
 1 e.g., the Proposal for a Council Directive completing the implementation of the
principle of equal treatment for men and women in statutory and occupational social
security schemes, COM(87 ) 494 final ; amended Proposal for a Council Directive on
parental leave and leave for family reasons, OJ C 333 of 9.12.83 p.6 and OJ C 316 of
27.1 1.84 p.7 ; amended Proposal for a Council Directive on voluntary part-time w’ork,
OJ C 62 of 12.3.82 p.7 and OJ C 18 of 22.1.83 p.5 .
2 Case 248/83 , Commission of the European Communities v Federal Republic of
Germany , decision of 21 May 1985 , as yet unreported
 ---pagebreak--- Paragraph 2 states that the directive does not apply to criminal procedures, which are
sometimes used to enforce national provisions on equality . A change in the burden of
proof in criminal procedure would otherwise too easily impose criminal liability on
individuals .
Section II, " Spécifie Provisions”
This section deals with three specific issues - the modification of the burden of proof,
including inferences to be drawn by courts or other competent authorities , procedures
for obtaining evidence, and the elements of indirect discrimination .
Article 3 - the modification of the burden
Normally the legal burden of proving a case rests on the complainant. A partial ,
subsidiary obligation to adduce certain evidence ( the " evidential burden ") may be
imposed on the respondent in certain circumstances, or the legal burden itself may be
passed to the respondent, in effect, a complete reversal of the legal burden.
The Commission has chosen in paragraph 1 to modify rather than to reverse the burden
and require a mixed legal and evidential burden . The legal burden of persuasion
remains with the complainant, but at a certain stage the evidential burden shifts to the
respondent to prove that there was no discrimination . The wording of this provision is
closely based on Article 6 of Council Directive 76/207/EEC.
The complainant is required to establish a rebuttable presumption of discrimination. At
this point, the evidential burden shifts and the respondent is required to rebut the
presumption by proving that the discrimination shown did not take place or was lawful ,
either by producing evidence of a legitimate , non-sex based reason , or by showing that
the principle of equality did not apply.
Finally , paragraph 1 deals with the problem of inferences. Once a presumption of
discrimination has been established , Member States are required to place the burden on
the respondent of providing the ultimate evidence that there was no unlawful
discrimination . This is done by giving the benefit of any doubt as to the proper
interpretation of the facts to the complainant.
 ---pagebreak---  Paragraph 2 provides a definition of what is required to establish a rebuttable
 presumption 1 . Firstly , the complainant must show that less favourable treatment has
 occurred on grounds of sex , for example , by proof by a woman complainant of a job
 application , rejection of that application and hiring of a man . Secondly , the complainant
 must show further elements which are sufficient for a court or other competent authority
 to hold that there has been unlawful discrimination , e g ., suitability for the post by way
of possession of the minimum essential set of qualifications required to do the job .
However, it is not necessary for a complainant to prove conclusively that unlawful
discrimination did take place , as this would require her to prove more than she can
reasonably be expected to have in her possession , i.e. , to show that she was equally
 well or better qualified than the successful male candidate . In effect , the evidential
 burden on the complainant has been lightened .
With regard to the question of what evidence is required to discharge the evidential
burden and rebut a presumption of discrimination , a respondent could adduce records ,
 statements , recruitment and promotion statistics .
Paragraph 3 allows Member States to impose a complete reversal of the burden , as is
already the case in certain jurisdictions . In this case , once the complainant has shown
that less favourable treatment has occurred , the first step illustrated above , the legal
burden passes to the respondent , who is obliged to prove positively and objectively that
no discrimination has taken place .
Article 4 -       procedures
This article sets out to ensure the existence of effective procedures for considering
complaints and for obtaining and providing information . Paragraph (a) requires that
courts or other competent authorities should have all the powers they require to consider
complaints effectively . Paragraph ( b) requires that all the information which is
necessary for the presentation of a case may be obtained from the party who possesses
it or who may reasonably be required to obtain it , that is , where obtaining such
evidence would not cause that party an undue burden . It should be provided to the party
who requires it, though the court or other competent authority retains the discretion not
to pass on confidential information , disclosure of which would cause substantial
damage to the interests of the disclosing party for reasons other than the litigation
concenied , e.g. , sensitive information , business secrets, etc. The “substantial damage’’
test is designed to ensure that the fact that information has been given in confidence
should not , without more , justify witholding such information .
 1 In civil law systems, a preesurnptionis iuris tantunv, in common law systems, a pnma
facie case .
 ---pagebreak--- Article 5 - indirect discrimination
Article 5 is intended to deal with the problem of indirect discrimination . It is an
unfainilar concept to many national lawyers and judges, and the absence of guidance on
its meaning has discouraged legitimate claims from being presented by claimants or
successfully pursued in national tribunals .
Following the jurisprudence of the Court of Justice 1 , paragraph 1 applies the concept of
indirect discrimination to all Community measures concerning the principle of equality ,
including equal pay, and sets out for the first time a definition of indirect discrimination .
The elements of this definition are based on the jurisprudence of the Court of Justice
and national courts , national legislation and guidelines , and statements by the
Commission noted above .
Paragraph 2 states for the avoidance of doubt that intent must be excluded from
consideration in claims of indirect discrimination . This concept, by definition ,
necessarily contemplates neutral situations which unintentionally have a
disproportionate impact on the members of one sex.
Section III, “ Final Provisions”
The final provisions contained in section III are for the most part taken from the
Community Directives on equality.
Article 6 is based on Article 8 of Directive 76/207/EEC .            It aims to ensure that
information on all the measures taken by the Member States to achieve the objectives of
the Directive is made readily available to all persons directly concerned . In practice, it
particularly concerns the definition of indirect discrimination .
Article 7.1 is based on Article 9.1 , first indent, of the same Directive . It gives
Member States 3 years to comply with the provisions of the Directive . Article 7.2 is
based on Articles 3-5 of the same Directive, amended so as to apply to all measures on
the principle of equality .
Article 8 lays down the obligations of the Commission and the Member States to
enable the Council to follow the progress achieved in the application of the proposed
Directive and to ensure the regular review of Community law on equality.
Article 9 does not call for any comments .
1 Case 96/80, Jenkins v Kingsgate [ 1981 ] ECR 911 ; Case 170/84, Bilka-Kaufhaus v
Weber von Hartz, decision of 13 May 1986 , as yet unreported
 ---pagebreak---                                         Pro^os di  i or a
                                       COUNCIL DISFCT'.'F
on the burden of proof in the area of equal pay and equal treatment for k*xnen and men
 The Council of t h e Furcpean Co^r.ujn i t i es
 Havirg regard to the Treaty establishing the European Economic Community , and in
 partic liar Articles 100 and 235 thereof,
 having regard to the proposal from the Commission ,
 Having regard to the opinion of the European Parliament,
  Hiving regard to the opinion of the Economic and Social Committee ,
  whereas the implementation of the principle of equal pay for men and women workers,
 as laid down in Article 1 19 of the Treaty , forms an integral part of the establishment and
 functioning of the common market ;
  whereas on 10 February 1975 the Council adopted Directive 75/ 117 /F.EC on the
 approximation of the laws of the Member States relating to the application of the
 principle of equal pay for men and women 1 ;
  whereas , as regards other aspects of equality of treatment between men and women , on
 9 February 1976 the Council adopted Directive 76/207/EEC 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 2 and on 1 1 December 1 986
 Council Directive 86/6 13/EEC on the implementation 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 3 ;
   Whereas , as regards equality of treatment between men and women in matters of social
 security , on 19 December 1978 the Council adopted Directive 79/7/EEC on the
 progressive implementation of the principle of equal treatment for men and women in
 matters of social security 4 and on 24 July 1986 Directive 86/378 /EEC on the
 implementation of the principle of equal treatment for men and women in occupational
 social security schemes5 ;
 W hereas the Commission , in its Communication to the Council of 20 December 1985 on
 a Medium Term Community Programme on Equal Opportunities for Women 1986-1990
 undertook to put forward a Community legal instrument on the principle of the reversal
 of the burden of proof applying to all equal opportunities measures; *
  1 O.J. No. L 45 , 19.2.1975 , p. 19
 2 O.J. No. L 39 , 14.2.1976 , p. 40
 3 O.J. No. L 359 , 19.12.86, p.56
 4 O.J. No. L 6, 10.1.1979 , p. 24
 5 O.J. No. L 225 , 12 . 8 . 86 , p.40
 6 Supplement 3/ 86 - Bull . EC .. § 19.c
 ---pagebreak---  whereas the Council , in its Resolution of 24 July 1986 on the promotion of equal
opportunities for women approved the general aims of the Commission Communication
and called upon Member States to take action to “ensure effective application of existing
equal treatment legislation , particularly through ... the examination of all aspects of the
problems relating to the establishment of the burden of proof
 whereas the Council , in its Resolution of 22 December 1986 on an action programme
on employment growth, expressed its commitment to take the decisions and measures
necessary to achieve an increase in the equality of access to, and opportunity within , the
labour market for women by “ the implementation of the Community's Medium Term
Programme 1986-1990”2 ;
 Whereas it is necessary to ensure respect in this area for the principle of equality as laid
down in Article 1 19 of the Treaty and the Council Directives ;
 Whereas the effective implementation of the principle of equality as laid down in those
provisions requires that additional measures be taken in relation to procedure and
evidence before national courts or other competent authorities;
 whereas differences persist between the Member States in this field; whereas,
therefore , it is necessary to approximate national provisions with regard to the
application of the principle of equality ;
 Whereas in certain respects the Treaty does not confer the specific powers necessary for
the   actions required;
HAS ADOPTED THIS DIRECTIVE :
SECTION I - GENERAL PROVISIONS
ARTICLE 1
1 . The purpose of this Directive is to ensure that measures taken by Member States
    pursuant to the principle of equality between women and men to enable all persons
    who consider themselves wronged by failure to apply to them the principle of
    equality to pursue their claims by judicial process after possible recourse to other
    competent authorities are made more effective.
2 . For die purposes of this Directive , the principle of equality is that enshrined in Article
    119 of the Treaty and Council Directives 75/ 117/EEC , 76/207/EEC , 79/7 /EEC ,
    86/378/EEC and 86/613/EEC.
1 OJ No. C 203 , 12.8.1986, p.2 , §§ 4-5
2 OJ No. C 340, 31.12.1986, p.2, § 2(0
 ---pagebreak--- ARTICLE 2
 1 . This directive shall apply to :
     ( a) all the Community measures concerning the principle of equality between women
     and men referred to in Article 1(2 ) above ;
     ( bi any such measure adopted in the future which docs not expressly exclude its
     application ;
     (c) any civil or administrative procedure concerning the public or private sectors
     which provides for means of redress coder national. Law in iirplenentat ion of the above
     measures .
2 . This Directive shall not apply to any criminal procedure , notwithstanding that such
     procedure may provide for means of redress coder naticnaL Law in lmpLerbntat ion'of the
     above measures .
SECTION II - SPECIFIC PROVISIONS
ARTICLE 3 - the modification of the burden                   of proof
1 . Member States shall ensure that , where persons who consider themselves wronged
     by failure to apply to them the principle of equality establish at any stage of
     proceedings before a court or other competent authority , as the case may be , a
     presumption of discrimination , it shall be for the respondent to prove that there has
     been no contravention of the principle of equality . The complainant shall have the
     benefit of any doubt that remains .
2 . A presumption of discrimination is established where a complainant shows a fact or
     a series of facts which would , if not rebutted , amount to direct or indirect
     discrimination .
3 . This Directive shall be without prejudice to the right of Member States to impose the
     legal burden of proof upon the respondent .
ARTICLE 4 - procedures
     Member Slates shall introduce into their national legal systems such measures as are
     necessary to ensure that :
( a) courts, tribunals and other competent authorities may order any measure necessary
     to ensure the effective examination of any complaint of discrimination ;
( b) the parties to the dispute are provided w ith all relevant information in the possession
     of either party or reasonably obtainab'e by either party which is necessary for them
     to present their case ,     dislosure of which would not substantially damage the
     imerests of the other party for purposes other than the Litigation concerned .
 ---pagebreak--- ARTICLE 5 - indirect discrimination
1 . For the purposes of the principle of equality referred to in Article 1(2) ,      indirect
    discrimination exists where an apparently neutral provision , criterion or practice
    disproportionately disadvantages the members of one sex , by reference in
    particular to marital or family status , and        is not objectively justified by any
    necessary reason or condition unrelated to the sex of the person concerned.
2 . Member States shall ensure that the intentions of the respondent are . not . taken
    into account in determining whether the principle of equality has been infringed in
    any individual case.
SECTION III - FINAL PROVISIONS
ARTICLE 6
    Member States shall take care that the provisions adopted 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 example at their place of employment .
ARTICLE 7
1 . Member States shall bring into force the Laws, regulations and administrative
    provisions necessary in order to comply with this Directive within three years of its
    notification and shall immediately inform the Commission thereof.
2 . Member States shall abolish or amend any provisions contrary to ‘ this
    Directive and shall take the measures necessary to ensure that similar provisions in
    collective agreements , individual contracts of employment , internal rules of
    undertakings or in rules governing the independent occupations and professions are
    likewise abolished or amended .
ARTICLE 8
1 . Within two years following expiry of the 3 year period laid down in
    Article ’ 7(1 ),         Member States shall forward all necessary information to the
    Commission to enable it to draw up a report on the application of this Directive for
    submission to the Council and the European Parliament .
2.      Every three years thereafter, Member States shall transmit information to the
    Commission with respect to progress made in the application of this Directive and
    provisions already in force., trends in the use of the provisions contained therein and
    their evolution to enable the Commission to draw up a report for the Council and the
    European Parliament every three years .
ARTICLE 9
    This Directive is addressed to the Member States .
Done   at                                                                   For the Counc i l
 ---pagebreak---         COMPETITIVENESS AND EMPLOYMENT I M PACT STATEMENT
             Proposal for a Council Directive on llie Burden of Proof in
            the area of equal pay and equal treatment for women and men
I What is the main reason for introducing the measure ?
    The policy objective is social : litis directive forms part of the policy aimed at achieving
    equal treatment by strengthening the effective application in practice of national
    legislation incorporating Community law .
    The EC Issue at stake is the effective application of Community law . Community law
    currently in force concerning the principle of equality consists of Article 119 of the
    Treaty and the three Council Directives implementing that principle : equal pay
    (75/ 117/EEC), equal treatment ( 76/207/EEC ) and statutory social security schemes
    (79/7/EEC). Two more directives adopted in 19X6 will enter into force in the future :
    occupational social security schemes ( 86/378/EEC ) and the self-employed
    ( 86/613/EEC).
    Procedural problems encountered by complainants have been identified in all the Member
    States which have the effect of depriving the substantive rights provided by Community
    law of much of their force . The main such problem is that of the burden of proof, which
    is difficult and sometimes impossible in the normal course of events for an aggrieved
    complaimint with an arguable case to establish . 7'hcrc arc also closely related problems
    concerning the willingness of courts or tribunals to draw inferences from the evidence
    that is presented , which can give rise to difficulties for complainants wherever the
    burden of proof is placed , the obtaining of evidence by the courts and by the parties , and
    the understanding and the application of the concept ( >f indirect discrimination .
    The result is that many applicants have failed to establish legitimate claims
    notwithstanding strong circumstantial evidence of discrimination . If the Directive were
    not introduced , this state of affairs would continue .
   The Directive contains two main substantial elements , both linked to the problem of the
   burden of proof:
   • the modification of the burden of proof : once the complainant has established a
   presumption of discrimination , the respondent is required to rebut it . Tie benefit of any
   doubt as to tiie proper interpretation of the fads is given u > the complainant :
   • a definition of the concept of indirect discrimination , to help the parlies and the national
   courts and tribunals to better understand and apply this concept , particularly with regard
   to the evidence required of either party .
 II Features of the businesses in question
     Tie Directive is intended to apply to all Community law on equality , existing and future ,
     and thereby to national procedures for redress in all sedi.rs , puoLic and private . Thus
     central and local government , State undertakings and agencies , and large , medium and
     small undertakings are all affected by the Directive since they arc all currently subject to
     the principle of equality established and guaranteed by eve ng law
 ---pagebreak---      It does not however apply to the criminal procedures laid down by some Member states
     for failure to respect the principle of equality.
     The Directive has no particular implications for any of the entities covered by it, though
     obviously it is hoped that the public sector will lead the way in carrying out the positive
     actions on equality that most effectively avoid litigation . It should neither encourage nor
     discourage the formation of newprivate undertakings .
Ill What obligations does this measure impose directly on businesses ?
     The Directive imposes no new obligations on business or on government, it is intended
     to improve trie application of existing provisions on equality .         Businesses have to
     continue to comply with existing obligations .
     Since the measure is designed to make legal procedures for breach of these obligations
     more effective , it is possible that litigation will be more likely where a business is in
     breach of its legal obligations. However:
 1 . the measure has been designed to discourage frivolous or vexatious litigation by
     insisting that complainants prove that there is an arguable case (“ modification’ of the
     burden). It is not enough to show only that there has been a difference of treatment on
      grounds of sex (“reversal* of the burden). Member States have or may introduce
      measures to further discourage frivolous or vexatious litigation , such as imposing
      increased costs on unsuccessful complainants who have been warned in pre-trial
      proceedings that they do not have an arguable case .
2. employers should consider introducing positive action programmes which would serve
      both to avoid litigation by improving compliance with legal obligations and also
      improve their competiviness by heightening utlisation of their human resources . This
      was the approach taken by members of the Economic and Social Committee in their
      unanimous opinion in favour of a flexible directive on the burden of proof. The
      Committee felt that such a measure would both “ help to redress the continuing
      infringement of equal rights” and “ encourage and stimulate good employment practices
      and modem personnel techniques . ’
      On balance , the measure should therefore reduce rather than increase administrative
      costs .
      The proposal will not stop businesses from continuing with any current activity . If it did
      not go ahead , the present unsatisfactory situation would continue .
 IV What indirect obligations are national , regional or local authorities likely
      to impose on businesses ?
      Member States will be required to assure that the obligations of the Directive are
      transformed into national law, and national courts , tribunals and other competent
      authorities will be required to implement it.
      However, the measure will not require any new obligations to be directly or indirectly
      imposed upon businesses by any national , regional or local authority .
 ---pagebreak--- V Arc there any special provisions in respect of SME 's ?
   There is no scope for exempting S.MH 's from the proposal , since it relates to existing
   legal obligations which the Court of Justice h;ia interpreted as fundamental and not
   subject to exemption (Case 105/ K2 , Commission v UK , requiring the UK to repeal die
   exemption tor SME’s in national law as inconsistent with die Equal Treatment Directive ).
   SME’s are likely to be sdmluated by die proposal in die sense recommended by the ESC
   under III supra, in that they may be encouraged to become more competitive by way of
   better utilisation of dieir human resources , and by die creation of new jobs as oudined
   under V 1(b) infra
VI What is the likely effect on
   ( a ) the compctitivcncss of busincsscs ?
   Enhanced compliance , firsdy , avoids extra costs of unnecessary litigation . Many
   organisations believe that better use of dieir human resources , pardcularly by way of
   positive action programmes concerning dieir female workforce , reinforce and improve
   competitivity - sec statements and programmes by BASF , Gcneralc de Banque , IBM ,
   Midland Bank, Thames Television , etc . Such programmes also lead to reduced turnover
   of staff, which can bring about significant savings in costs of recruitment and training of
   replacements .
   ( b) employaient ?
   There is some evidence that more effective participation by women in the labour market
   creates extra jobs in a way that male participation does not - eg ., child care , education ,
   the service industries . Many of diesc extra jobs are created in areas particularly suitable
   for SME’s , particularly those in turn employing women .
VII Have the relevant representative organisations been consulted ?
   The Economic and Social Committee , which includes n-presentatives of employers
   organisations , small business organisations and labour organisations , unanimously
   recommended the proposal of this measure in its opinion on die Medium Term
   Community Programme .
   The measure was prepared alter detailed consultation widi members of die expert
   network on the application of die equality directives , which includes practicing and
   academic lawyers and lawyers representing labour and business organisations . These
   specialists recommended the specific provisions on the burden of proof, evidence and
   indirect discrimination which appear in the final proposal .
   The Advisory Committee for Equal Opportunities lor Women and Men , which includes
   representatives of the specialist equality agencies ot die Member States , has been
   consulted and has expressed a favourable opinion on die Proposal .
   Legal specialists from the Ministries of Labour and Justice of the Member States have
   been consulted . The final draft of die proposal has been amended to take account of the
   technical problems raised by national legal experts , who were on a technical level
   generally favourable to the measure .