28.6.2005   

EN

Official Journal of the European Union

C 157/83

1.1

The proposal's principal objective is to enhance transparency and clarity of equal treatment legislation and to facilitate effective application by reinforcing the acquis and avoiding regression. A single piece of legislation is needed with a clear structure, easily accessible and legible to support the achievement of socio-economic Community policy goals for more and better jobs for women.

1.2

Regrouping the provisions of the Directives on access to employment, equal pay, occupational social security and the burden of proof opens the chance to present a single coherent text that is free of contradicting definitions. The proposal accounts for recent developments in European case law by updating existing secondary legislation in line with judgements of the European Court of Justice which have clarified and further developed the concept of equality. It also serves to guarantee a high level of legal certainty by putting together provisions of Directives linked by their subject — all this in the context of the new political environment which presents the Union as being open, understandable and relevant to daily life.

1.3

The Directive applies to the working population, including self-employed persons, persons whose activity is interrupted by illness, maternity, accident or involuntary unemployment and persons seeking employment, and to retired and disabled workers, and to those claiming under them, in accordance with national law and/or practice.

2.1

The Treaty of Amsterdam reinforced Community competence concerning equality between men and women and introduced the objective to eliminate inequalities in all fields of civil life and to promote gender equality. Unequal treatment not only violates a fundamental principle of the European Union, but it is also a limiting factor for economic growth and prosperity of national economy.

2.2

Equal treatment is a prerequisite for the EU to succeed in reaching the objectives for growth and sustainable economic, social and environmental development. Europe will more than ever before have to rely on a much higher proportion of women in the working population which can only be achieved by creating a floor of equal rights granted to all.

2.3

Research has shown that discrimination based on gender as well as the lack of specific support for employees with family responsibilities is a significant barrier which inhibits the growth of female employment in the first place.

—

The first equal treatment Directive adopted in 1975 deals with equal pay. (2)

—

In 1976, the Directive on equal treatment in employment followed. (3) This Directive was substantially amended in 2002 by Directive 2002/73 that defined ‘harassment’ and ‘sexual harassment’. (4)

—

In 1978, a Directive relating to statutory security schemes was adopted. (5)

—

In 1986, a Directive introducing the principle of equal treatment for men and women in occupational social schemes was adopted. (6) This Directive was later amended. (7)

—

In 1986 a Directive on equal treatment of men and women engaged in an activity in a self-employed capacity including agriculture was introduced with provisions on protection of self-employed women during pregnancy and motherhood. (8)

—

In 1992 a Directive on protection of pregnant workers was adopted as a health and safety measure, including a statutory right to maternity leave of at least 14 weeks, time off for ante-natal examinations and protection against dismissal. (9)

—

In 1995 the framework agreement on parental leave was concluded between the European level cross industry organisations and this was subsequently adopted as a Directive; it points out that equal treatment also means applying measures to men and recognises the importance of fathers in child care. (10) This Directive was later amended and extended to cover the UK. (11)

—

In 1997 the burden of proof Directive was adopted. (12) This Directive was also later extended to cover the UK. (13)

3.1

The EESC congratulates the Commission on its work towards simplifying and making more accessible the bulk of the gender directives. Gender equality is a fundamental right in all aspects of social and economic life and therefore legislation must be clear and easy for everybody to read.

3.2

A 30-year process of gender legislation has created 12 directives and the Committee notes that the Commission is now amalgamating seven of these directives with the common theme of equal treatment into a single recast version. (17) The Commission has chosen to recast these seven directives since there are many common threads throughout the Directives causing repetition and overlapping, but also a certain lack of coherence in the definitions.

3.3

The recast process modernises, clarifies and simplifies the seven into one by reducing the overall length of the texts and incorporating one set of definitions, including definitions on direct and indirect discrimination and harassment. The Committee welcomes this move in the light of the enlargement and the Commission's commitment to better regulation.

3.4

The Committee notes that five gender directives have been omitted from the recasting exercise through lack of commonality. (18) These include the two parental rights' Directives, which were framed in conjunction with employer and employee organisations and are not considered to fall under equal treatment; the Directive on maternity and nursing mother rights, which fall under health and safety legislation; the Directive on equal treatment in matters of social security and the Directive on protection of women's rights in self-employment, including agriculture.

3.5

The Committee supports the Commission's view that inclusion of these directives would complicate and lengthen the recast Directive. However, the EESC wishes to highlight Directive 86/613/EEC (19) as being in need of an immediate review in the light of the numbers of the female self-employed and women employed in agriculture. It is the EESC view that this particular piece of legislation is weak in content, providing insufficient protection for women. Given its relevance to the Lisbon objectives, an urgent update is therefore necessary.

3.6

The Commission has made two additions to the Directives that directly reflects well established case law and therefore just clarifies legislation already in place. These additions concern equal pay (Article 4) and occupational pensions for civil servants (Article 6). (20) The EESC notes that the European Court of Justice is instrumental in strengthening European law. Inclusion of case law in the recast directive adds clarity and purpose.

3.7

The codification exercise is technical and the Commission has stated that the substance of the directives have not been added to, excepting Article 21 the provision on the bodies for the promotion of equal treatment in the ‘Horizontal Provisions’ of Title III. The inclusion of the ‘Horizontal Provisions’ across the whole directive now increases, albeit marginally, the powers of equality bodies by broadening the scope of application. This may open the door for further extension of powers at a later date. The EESC points out that whilst the substance has not changed, updating and modernising the Directives, together with the resulting case law may imply changes in the long term.

4.1

Gender equality has been supported by 30 years of legislation and whilst the EESC commends the Commission for its move to simplify and make the directive easier to read, true equality across Europe cannot be achieved without positive action on the part of all Member States in demanding equal treatment for men and women. The Committee believes that exchanging and promoting good practices and increasing social dialogue in this field are a concrete way of delivering progress and fully recognizes the fundamental role of the social partners, highlighting their activities within the ‘Work Programme of the European Social Partners 2003-2005’. The Commission must do more in promoting equal treatment, equal opportunities and the value of women to the European economy in order to achieve the Lisbon goals.

4.2

The EESC would request the Commission to consider encouraging Member States to produce a guideline booklet highlighting the main features of European gender directives as they have been transposed into national legislation, the obligations of employers and the rights of employees, to remove the ignorance surrounding equal treatment and enhance the benefits to the economy.