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Community Legislation on Equal Treatment

DG ‘Employment, Social Affairs& Equal Opportunities’

Equality, Action against Discrimination: Legal QuestionsPetra SchottJune 2008

Petra.Schott@ec.europa.eu

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Treaty Articles

• Article 141 – Principle of equal Pay for Equal or equivalent Work

• Article 13 – Legal base for legislation to combat discrimination on grounds of sex, racial or ethnic origin, religion or belief, disability, age or sexual orientation in all areas

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Directives IGender Acquis:

• Directive 75/117/EEC on equal pay

• Directive 76/207/EEC on equal treatment in access to employment etc., amended by Directive 2002/73/EC (definitions of discrimination, equality body, sanctions)

• Directive 79/7/EEC on equal treatment in social security

• Directive 86/378/EEC on equal treatment in occupational social security schemes, amended by Directive 96/97/EC

• Directive 86/613/EEC on equal treatment for self-employed

• Directive 92/85/EEC on protection of pregnant workers and maternity leave provisions (14 weeks minimum + sick leave pay)

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Directives II

• Directive 96/34/EC on parental leave (3 months for each parent)

• Directive 97/80/EC on the shifting of the burden of proof

• Directive 2002/73/EC amending 76/207/EEC: definitions of direct and indirect discrimination, maternity protection, equality body, sanctions

• Directive 2004/113/EC equal treatment in the access to and supply of goods and services (first Directive based on Art 13 EC dealing with equal treatment outside employment): equal treatment in every day contracts and situations (not media and advertising, not education), actuarial factors

• Directive 2006/54/EC (recast) reformulating 4 Directives (75/117, 76/207, 86/378 and 97/80) which will be repealed with effect from August 2009

(Link to the Directives on our website: http://ec.europa.eu/employment_social/gender_equality/legislation/legalacts_en.html )

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Material Scope I

• Access to employment, self-employment, vocational guidance and training

• employment and working conditions, including dismissals and pay

• membership in organisations

• occupational social security and statutory social security (partly)

• Access to/supply with goods and services

The Gender-Directives prohibit discrimination as regards:

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Concept of discrimination

• Direct discrimination: Where one person is treated less favorably than another is, has been or would be treated in a comparable situation on grounds of sex

• Indirect discrimination: Where an apparently neutral provision, criterion or practice would put persons of one sex at a particular disadvantage compared with other people

• Harassment/Sexual harassment :When an unwanted conduct/of a sexual nature related to the sex of a person occurs with the purpose or effect of violating a person’s dignity and of creating an intimidating, hostile, degrading, humiliating or offensive environment;

• Instruction to discriminate

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Specialised Bodies(Directive 2002/73/EC)

The Directive requires

Creation of a national body for the promotion of equal treatment for gender equality with the following tasks:– Independent assistance to victims– Independent surveys– Independent reports and recommendations

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The Commission is currently monitoring:

• the transposition of Directive 2002/73 (amending Directive 76/207) of the Gender Acquis (infringement cases started)

• Will start monotoring Directive 2004/113/EC in 2008

Transposition

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Infringement procedure If Member States do not comply with EU-Law, the

Commissins starts with infringement procedures:

• 1. Letter of Formal Notice• 2. Reasoned Opinion• 3. Referral to ECJ

However, most of the cases at the ECJ arrive there directly from Member States’ Courts asking for preliminary ruling, Art 234 EC Treaty

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ECJ case law Gender Equality I

Problem: pregnancy and maternity

• Judgment of 14.7.1994, case C-32/93, Webb, (no dismissal of an employee replacing another pregnant employee on grounds of pregnancy)

• Judgment of 2.3.2000, C-207/98, Mahlburg, (no refusal of an application of a pregnant women on the grounds that a pregant women is not allowed to this job)

• Jugdment of 27.2.2003,C-320/01, Wiebke Busch, (a

woman may, in the context of an application for a job, hide her pregnancy)

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ECJ case law Gender Equality II

Problem: indirect discrimination

• Judgment of 13.7.1989,C-171/88, Rinner-Kühn, (no exception from sick-pay for woman working only for few hours)

• Judgment of 7.3.1996, case C-278/93, Freers and Speckmann, (reimbursement for part-time workers participating in a one day training must be compensated on basis of a full day’s

work (not only part-time))

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Further projects as regards the Gender-Acquis

• Communication regarding the so-called ‘Gender Pay gap’ (18 July 2007)• http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=COM:2007:0424:FIN:EN:PDF

• Impact assessment on reconciliation of professional, private and family life (possible amendments of maternity and parental leave Directive, new forms of leave)

• Impact assessment on options to amend Directive 86/613/EEC on self-employed and helping spouses

• Study on discrimination in social security schemes

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Conclusion

• The gender acquis is further developping

• The Commission will not hesitate to take the action necessary to ensure full and correct transposition

Thank you for your attention!