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

5. 7. 88                               Official Journal of the European Communities                               N o C 176/5
                                                              II
                                                       (Preparatory Acts)
                                                  COMMISSION
              Proposal for a Council Directive on the burden of proof in the area of equal pay and equal
                                                treatment for women and men
                                                      COM(88) 269 final
                                      (Submitted by the Commission on 27 May 1988)
                                                        (88/C 176/09)
THE COUNCIL OF THE EUROPEAN COMMUNITIES,                           79/7/EEC on the progressive implementation of the
                                                                   principle of equal treatment for men and women in
Having regard to the Treaty establishing the European              matters of social security (4) and on 24 July 1986
Economic Community, and in particular Articles 100 and             Directive 86/378/EEC on the implementation of the
235 thereof,                                                       principle of equal treatment for men and women in
                                                                   occupational social security schemes ( 5 );
Having regard to the proposal from the Commission,
                                                                   Whereas the Commission, in its communication to the
Having regard      to  the    opinion   of   the   European        Council of 20 December 1985 on a Medium Term
Parliament,                                                        Community Programme on Equal Opportunities for
                                                                   Women 1986 to 1990 undertook to put forward a
Having regard to the opinion of the Economic and                   Community legal instrument on the principle of the
Social Committee,                                                  reversal of the burden of proof applying to all equal
                                                                   opportunities measures ( b );
Whereas the implementation of the principle of equal
pay for men and women workers, as laid down in Article             Whereas the Council, in its resolution of 24 July 1986 on
119 of the Treaty, forms an integral part of the estab-            the promotion of equal opportunities for women
lishment and functioning of the common market;                     approved the general aims of the Commission communi-
                                                                   cation and called upon Member States to take action to
Whereas on 10 February 1975 the Council adopted                    'ensure effective application of existing equal treatment
Directive 75/117/EEC on the approximation of the laws              legislation, particularly through . . . the examination of
of the Member States relating to the application of the            all aspects of the problems relating to the establishment
principle of equal pay for men and women (');                      of the burden of proof ( 7 );
Whereas, as regards other aspects of equality of
treatment between men and women, on 9 February 1976                Whereas the Council, in its resolution of 22 December
the Council adopted Directive 76/207/EEC on the                     1986 on an action programme on employment growth,
implementation of the principle of equal treatment for             expressed its commitment to take the decisions and
men and women as regards access to employment, voca-               measures necessary to achieve an increase in the equality
tional    training   and     promotion,     and      working       of access to, and opportunity within, the labour market
conditions (2) and on 11 December 1986 Council                     for women by 'the implementation of the Community's
Directive 86/613/EEC on the implementation of the                  Medium Term Programme 1986 to 1990' ( 8 );
principle of equal treatment between men and women
engaged in an activity, including agriculture, in a self-
                                                                   Whereas it is necessary to ensure respect in this area for
employed capacity, and on the protection of self-
                                                                   the principle of equality as laid down in Article 119 of
employed women during pregnancy and motherhood ( } );
                                                                   the Treaty and the Council Directives;
Whereas, as regards equality of treatment between men
and women in matters of social security, on 19
December       1978 the Council adopted             Directive      (4) OJ No L 6, 10. 1. 1979, p. 24.
                                                                   (5) OJ No L 225, 12. 8. 1986, p. 40.
(') OJ No L 45, 19. 2. 1975, p. 19.                                (6) Supplement 3/86 — Bull. EC.
O OJ No L 39, 14. 2. 1976, p. 40.                                  O   OJ N o C 203, 12. 8. 1986, p. 2.
(5) OJ No L 359, 19. 12. 1986, p. 56.                              (') OJ No C 340, 31. 12. 1986, p. 2.
 ---pagebreak--- No C 176/6                              Official Journal of the European Communities                                   5. 7. 88
Whereas the effective implementation of the principle of                                   SECTION II
equality as laid down in those provisions requires that
                                                                                        Specific provisions
additional measures be taken in relation to procedure
and evidence before national courts or other competent
authorities;                                                                                 Article 3
                                                                     THE MODIFICATION OF THE BURDEN OF PROOF
Whereas differences persist between the Member States              1.    Member States shall ensure that, where persons
in this field; whereas, therefore, it is necessary to              who consider themselves wronged by failure to apply to
approximate national provisions with regard to the appli-          them the principle of equality establish at any.stage of
cation of the principle of equality;                               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
Whereas in certain respects the Treaty does not confer             no contravention of the principle of equality. The
the specific powers necessary for the actions required,            complainant shall have the benefit of any doubt that
                                                                   remains.
HAS ADOPTED THIS DIRECTIVE:
                                                                   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
                        SECTION I                                  indirect discrimination.
                     General provisions
                         Article 1                                 3.    This Directive shall be without prejudice to the
                                                                   right of Member States to impose the legal burden of
1.    The purpose of this Directive is to ensure that              proof upon the respondent.
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                                   Article 4
claims by judicial process after possible recourse to other                              PROCEDURES
competent authorities are made more effective.
                                                                   Member States shall introduce into their national legal
                                                                   systems such measures as are necessary to ensure that:
2.    For the 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,                     (a) courts, tribunals and other competent authorities
79/7/EEC, 86/378/EEC and 86/613/EEC.                                    may order any measure necessary to ensure the
                                                                       effective examination of any complaint of discrimi-
                                                                        nation;
                         Article 2
1.    This Directive shall apply to:                               (b) the parties to the dispute are provided with all
                                                                       relevant information in the possession of either party
                                                                        or reasonably obtainable by either party which is
(a) all the Community measures concerning the principle
                                                                        necessary for them to present their case, disclosure
     of equality between women and men referred to in
                                                                       of which would not substantially damage the
    Article 1 (2) above;
                                                                       interests of the other party for purposes other than
                                                                       the litigation concerned.
(b) any such measure adopted in the future which does
     not expressly exclude its application;
                                                                                             Article 5
(c) any civil or administrative procedure concerning the                          INDIRECT DISCRIMINATION
    public or private sectors which provides for means of
    redress under national law in implementation of the            1.    For the purposes of the principle of equality
    above measures.                                                referred to in Article 1 (2), indirect discrimination exists
                                                                   where an apparently neutral provision, criterion or
                                                                   practice disproportionately disadvantages the members of
2.    This Directive shall not apply to any criminal               one sex, by reference in particular to marital or family
procedure, notwithstanding that such procedure may                 status, and is not objectively justified by any necessary
provide for means of redress under national law in                 reason or condition unrelated to the sex of the person
implementation of the above measures.                              concerned.
 ---pagebreak--- 5. 7. 88                                Official Journal of the European Communities                             N o C 176/7
2.    Member States shall ensure that the intentions of            measures necessary to ensure that similar provisions in
the respondent are not taken into account in determining           collective     agreements,    individual   contracts    of
whether the principle of equality has been infringed in            employment, internal rules of undertakings or in rules
any individual case.                                               governing the independent occupations and professions
                                                                   are likewise abolished or amended.
                       SECTION III
                                                                                            Article 8
                      Final provisions
                                                                   1.    Within two years following expiry of the three year
                          Article 6                                period laid down in Article 7 (1), Member States shall
                                                                   forward all necessary information to the Commission to
Member States shall take care that the provisions                  enable it to draw up a report on the application of this
adopted pursuant to this Directive, together with the              Directive for submission to the Council and the
provisions already in force, are brought to the attention          European Parliament.
of all relevant persons by all appropriate means, for
example at their place of employment.                              2.    Every three years thereafter, Member States shall
                                                                   transmit information to the Commission with respect to
                          Article 7                                progress made in the application of this Directive and
1.    Member States shall bring into force the laws,               provisions already in force, trends in the use of the
regulations and administrative provisions necessary in             provisions contained therein and their evolution to
order to comply with this Directive within three years of          enable the Commission to draw up a report for the
its notification and shall immediately inform the                  Council and the European Parliament every three years.
Commission thereof.
                                                                                            Article 9
2.    Member States shall abolish or amend any
provisions contrary to this Directive and shall take the           This Directive is addressed to the Member States.
              Proposal for a Council Regulation (EEC) amending Regulation (EEC) No 822/87 on the
                                         common organization of the market in wine
                                                      COM(88) 281 final
                                       (Submitted by the Commission on 30 May 1988)
                                                         (88/C 176/10)
THE COUNCIL OF THE EUROPEAN COMMUNITIES,                           Articles 7 and 8 of Council Regulation (EEC) No
                                                                    1883/78 of 2 August 1978 laying down general rules for
Having regard to the Treaty establishing the European              the financing of interventions by the European Agri-
Economic Community and in particular Articles 42 and               cultural Guidance and Guarantee Fund, Guarantee
43 thereof,                                                        Section (3), as last amended by Regulation (EEC) N o
                                                                   2095/87 ( 4 );
Having regard to the proposal from the Commission,
Having regard      to   the   opinion    of   the   European       Whereas, as regards alcohol from distillation as provided
Parliament,                                                        for in Articles 35 and 36 of Regulation (EEC) No
                                                                   822/87, the EAGGF is to bear only the costs arising
Whereas the European Council of 11 and 12 February                 from its disposal in sectors other than on the markets for
 1988 laid down as a guideline the elimination of                  alcohol and spirituous beverages produced in the
potential costs inherent in stocks of agricultural                 Community; whereas, to devaluate such alcohol in a way
products;                                                          similar to that by which alcohol from distillation as
                                                                   provided for in Article 39 of Regulation (EEC) No
"Whereas, in the case of alcohol from distillation as
                                                                    822/87 is depreciated, a special provision is required;
provided for in Article 39 of Council Regulation (EEC)
                                                                   whereas that provision should be inserted into Regu-
No 822/87 ('), as last amended by Commission Regu-
                                                                   lation (EEC) No 822/87,
lation (EEC) No 3992/87 (2), public stocks are in future
to be depreciated by the difference between the buying-
in price and the foreseeable disposal value pursuant to
(') OJ No L 84, 27. 3. 1987, p. 1.                                  O OJ No L 216, 5. 8. 1978, p. 1.
(2) OJ No L 377, 31. 12. 1987, p. 20.                              (4) OJ No L 196, 17. 7. 1987, p. 3.